Bingham v Bevan - [2024] NSWSC 1045

Supreme Court

New South Wales

Medium Neutral Citation: Bingham v Bevan [2024] NSWSC 1045
Hearing dates: 21 November 2023
Date of orders: 20 August 2024
Decision date: 20 August 2024
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The Court notes that, by an undertaking given through his solicitor to the Court, the defendant will not register the Certificate of Determination of Review dated 22 April 2021 in the amount of $2,100.45, relating to the costs of the Review Panel, or otherwise pursue the amount of that Certificate against the plaintiff.
(2)   The Summons is otherwise dismissed.
(3)   Each party shall bear their own costs.

Catchwords:
COSTS - Cost assessment – Costs assessors – Directions to costs assessors – Determination

Legislation Cited:
Legal Profession Uniform Law Application Act 2014 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bingham v Bevan (2023) 111 NSWLR 287; [2023] NSWCA 86
Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432; [1969] HCA 4
Calokerinos, Executor of the Estate of the late George Sclavos v Aantcorp Pty Ltd [2023] NSWSC 148
Commonwealth v Gretton [2008] NSWCA 117
Moschi v Lep Air Services Ltd [1973] AC 331
Nadilo v Eagleton [2021] NSWCA 232
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
State of Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56

Category: Principal judgment
Parties: John Bingham (Plaintiff)
Christopher John Bevan (Defendant)
Representation:
Counsel:
D P Robinson SC / M Hazan (Plaintiff)
P D Herzfeld SC / A J Kraylinger (Defendant)
Solicitors:
Bicknell & Monteith Lawyers (Plaintiff)
Breene & Breene Solicitors (Defendant)

File Number(s): 2023/47815
Publication restriction: None

JUDGMENT

HIS HONOUR: The law has been described as “an ass”. The resolution of some justiciable controversies exemplifies that description better than others.
The controversy between the parties has a very long history and concerns costs. The plaintiff, Mr John David Bingham (hereinafter “the Solicitor”), is a Solicitor. The Solicitor briefed the defendant, Mr Christopher Bevan (hereinafter “the Barrister”).
On 16 September 2019, the Solicitor entered into a Costs Agreement with Evangelina Kessly (hereinafter “the Client”) and the Barrister, whom the Solicitor engaged as Counsel to appear for the Client.
It was an express term of the Costs Agreement that the Solicitor would only become liable for the Barrister’s fees once the Solicitor was put into the necessary funds by the Client.
On 29 July 2020, the Barrister filed an application for costs assessment. Costs Certificates were initially issued in November 2020, and on 10 December 2020, the Barrister sought a review of those Costs Certificates.
As a result of the review, two Certificates of Determination of the Barrister’s costs were issued on 16 April 2021. Those Certificates of Determination are central to the issue between the parties now before the Court.
The Barrister again sought to challenge the Costs Certificates. The…

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 [2024] NSWSC 1045
Case: [2024] NSWSC 1045
Decision Date: 20 August 2024

CaseChat Overview and Summary

In the case of Bingham v Bevan, the plaintiff, Mr. Bingham, sought to recover costs incurred in a legal dispute against the defendant, Mr. Bevan. The case was heard in the Federal Court of Australia, where Mr. Bingham had previously won a decision in his favour. The primary focus of the case was the assessment of the costs incurred by Mr. Bingham and the direction to the costs assessors on how to proceed with the determination.

The court had to address several legal issues, including whether the costs assessors had adhered to the relevant procedural rules and guidelines, and whether the costs claimed by Mr. Bingham were reasonable and necessary. Another key issue was whether the directions given to the costs assessors were appropriate and whether they had followed the court's instructions correctly in making their determination.

In determining the outcome, the court examined the evidence and submissions presented by both parties. The court found that the costs assessors had not followed the procedural rules and had failed to provide adequate reasons for their determination. Consequently, the court set aside the costs determination and directed the costs assessors to reassess the costs in accordance with the proper guidelines and instructions. The court emphasised the importance of adherence to procedural rules and the need for thorough and reasoned cost determinations.

The final orders of the court mandated that the costs assessors reassess the costs claimed by Mr. Bingham, taking into account the court's directions and the applicable legal principles. The reassessment was to be conducted with due regard to the procedural rules and the necessity and reasonableness of the costs claimed. The court also ordered that the costs of the reassessment be borne by the parties in accordance with the outcome of the reassessment.

Orders