Bingham v Bevan

[2022] NSWCA 248

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bingham v Bevan [2022] NSWCA 248

Hearing dates:

5 December 2022

Date of orders:

5 December 2022

Decision date:

05 December 2022

Before:

Simpson AJA; Basten AJA

Decision:

(1)   To the extent the matter requires a grant of leave to appeal, grant the applicant leave to appeal from the judgment and orders made in the Common Law Division.

(2)   Order that the costs of the application for leave be costs in the appeal.

Catchwords:

APPEAL – leave to appeal – dismissal of motion to set aside registered judgment – order of dismissal interlocutory – effect of dismissal final in practical terms – amount in issue $323,000 – effect of costs disclosure agreement restricting circumstances in which counsel’s fees payable – non-compliance of costs estimate – agreement “void” – whether protections for party liable ineffective – whether costs assessor resolved issue – whether costs assessor had jurisdiction to resolve issue – whether alleged errors more than reasonably arguable – whether issues of principle raised

Legislation Cited:

Legal Profession Uniform Law (NSW), s 178

Supreme Court Act 1970 (NSW), s 101(1)(e)

Uniform Civil Procedure Rules 2005 (NSW),

Pt 36, r 36.15

Cases Cited:

Calandra v Murden [2015] NSWCA 231

Doyle v Hall Chadwick [2007] NSWCA 159

Category:

Procedural rulings

Parties:

John David Bingham (Applicant)
Christopher Bevan (Respondent)

Representation:

Counsel:
D P Robinson SC / M Hazan (Applicant)
M Cashion SC / I Sethi (Respondent)

Solicitors:
Bicknell & Monteith Lawyers (Applicant)
Breene & Breene Solicitors (Respondent)

File Number(s):

2022/275823

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2022] NSWSC 863

Date of Decision:

29 June 2022

Before:

Walton J

File Number(s):

2021/45279

JUDGMENT

1. THE COURT: This matter involves an application for leave to appeal from a judgment given in the Common Law Division on 29 June 2022. ^[1] The operative order dismissing the plaintiff’s summons was entered on 12 September 2022. Two days later, on 14 September 2022, the applicant filed a summons seeking leave to appeal.

   1. Bevan v Bingham [2022] NSWSC 863 (Walton J).

2. In written submissions dated 13 October 2022, the respondent stated that he opposed the application for leave being dealt with on the papers and sought a hearing on the merits, limited to the question of leave to appeal only. He stated specifically that he opposed a concurrent hearing.

3. For reasons explained briefly below, if leave be required, this is self-evidently a matter warranting a grant of leave to appeal.

4. It appears to have been assumed that leave was required in this matter pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW) because the proposed appeal was from an order of a judge dismissing a motion to set aside a judgment. In practical terms, the judgment was final. The subject matter of the proceedings in the Court was a judgment registered in the Court in an amount of some $323,000. The major part of this sum was a brief fee of $6,000 plus some 450 hours of work at $600 per hour. The judgment arose from an assessment of costs payable with respect to other proceedings, finally determined in the High Court of Australia.

5. There were a number of issues before the trial judge, each of which might be described as raising a matter of general importance and principle, as to which the submissions of the applicant were more than reasonably arguable.

6. The first and basic issue was whether fees were payable in circumstances where a fee disclosure agreement entered into between the barrister and the solicitor (but not the client) stated, in substance, that the barrister could not recover his fees from the solicitor unless the solicitor was put in funds by the client. The primary judge, agreeing with the costs assessor, found that the barrister had grossly underestimated his fees, with the result that the disclosures did not comply with the requirements of the Legal Profession Uniform Law(NSW) and, accordingly, the agreement was “void”: s 178(1)(a). The limitation on his entitlement to be paid by the solicitor was therefore ineffective. The contrary proposition is more than reasonably arguable. The issue is one of considerable importance in the regulation of the legal profession in Australia.

7. A second issue arose as to whether, on the barrister’s application for an assessment of his costs, the costs assessor had in fact determined that matter in favour of the barrister and had issued a certificate, in practical terms unchallengeable, that the amount of the costs as assessed “is payable”. It was more than reasonably arguable that the factual findings made by the costs assessor did not support that conclusion; or alternatively, if they did, that there was a patent misreading of the agreement.

8. Thirdly, there was an issue as to whether the operation of the agreement was itself a matter to be determined by the costs assessor. The respondent contended that that issue was resolved in his favour by a decision of this Court, the correctness of which was not challenged. ^[2] However, that case related to an earlier legislative regime, not in identical terms to the current Uniform Law. Whether the earlier authority is still applicable is an issue of considerable importance in the regulation of the legal profession, at least in New South Wales.

   2. Doyle v Hall Chadwick [2007] NSWCA 159

9. Fourthly, having obtained a costs assessment certificate, the barrister sought to register the certificate in the Supreme Court so that it was taken to be a judgment of the court. That gave rise to two further questions, namely whether registration of the certificate constituted entry of the judgment or order for the purposes of Pt 36 of the Uniform Civil Procedure Rules 2005 (NSW) and, if it did, whether the judgment was given, or the order made, “irregularly, illegally or against good faith”: r 36.15(1). The argument that it was a judgment given for the purposes of Pt 36 raised an issue as to the operation of the decision of this Court in Calandra v Murden [2015] NSWCA 231. Assuming the relevant provisions to be engaged, the argument, dismissed by the trial judge, that the judgment was entered irregularly, illegally or against good faith was more than reasonably arguable. It raised an issue of importance as to the finality of judgments registered as of right.

Conclusions

10. The Court makes the following orders:

1. To the extent the matter requires a grant of leave to appeal, grant the applicant leave to appeal from the judgment and orders made in the Common Law Division.

2. Order that the costs of the application for leave be costs in the appeal.

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Endnotes

Decision last updated: 05 December 2022