Bingham v Bevan

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.