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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bingham v Bevan

Details

AGLC: Bingham v Bevan [2022] NSWCA 248
Case: [2022] NSWCA 248
Decision Date: 05 December 2022

CaseChat Overview and Summary

The applicant, Bingham, sought leave to appeal from an order of the Common Law Division of the Supreme Court of New South Wales that dismissed a motion to set aside a registered judgment. The dispute concerned the enforceability of a costs disclosure agreement, which the applicant alleged was void due to non-compliance with cost estimate requirements. The amount in issue was $323,000.

The primary legal issues before the Court of Appeal were whether the dismissal of the motion to set aside the registered judgment was an interlocutory or final order for the purposes of an appeal, and if leave to appeal was required, whether the alleged errors raised by the applicant were more than reasonably arguable or involved issues of principle. A further issue concerned the effect of a costs disclosure agreement that allegedly restricted the circumstances in which counsel's fees were payable and whether its alleged invalidity rendered protections for the party liable ineffective. The Court also considered whether a costs assessor had jurisdiction to resolve the issue of the agreement's validity.

The Court determined that while the order dismissing the motion to set aside the registered judgment was interlocutory in nature, it had the effect of being final in practical terms given the substantial amount in issue. The Court granted leave to appeal, finding that the issues raised by the applicant concerning the costs disclosure agreement and the jurisdiction of the costs assessor were more than reasonably arguable and involved questions of principle. The Court ordered that the costs of the application for leave to appeal be costs in the appeal.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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