Bingham v Bevan - [2023] NSWSC 998

Supreme Court

New South Wales

Medium Neutral Citation: Bingham v Bevan [2023] NSWSC 998
Hearing dates: 21 August 2023
Date of orders: 21 August 2023
Decision date: 21 August 2023
Jurisdiction: Common Law
Before: Weinstein J
Decision:
(1) The hearing date of 31 August 2023 is vacated.
(2) The matter is adjourned to 3 October 2023 before the Registrar.
(3) The defendant's motion is otherwise dismissed.
(4) Costs of the motion are costs in the cause.
(5) The parties have liberty to apply on two days notice.

Catchwords:
CIVIL PROCEDURE – notice of motion - application by defendant to stay proceedings pending outcome of High Court Special Leave Application – hearing vacated and proceedings adjourned – motion otherwise dismissed

Legislation Cited:
Civil Procedure Act 2005
Legal Profession Uniform Law 2014

Cases Cited:
123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89
Bevan v Bingham [2022] NSWSC 863
Bingham v Bevan [2023] NSWCA 186
Bingham v Bevan [2023] NSWCA 86
Bingham v Bevan [2023] NSWSC 123
City of Sydney Council v Satara [2007] NSWCA

Category: Procedural rulings
Parties: John Bingham (plaintiff)
Christopher John Bevan (defendant)
Representation:
Counsel:
D Robinson SC and M Hazan (plaintiff)
I Sethi (defendant)
Solicitors:
Bicknell & Monteith (plaintiff)
Breene and Breene Solicitors (defendant)

File Number(s): 2023/47815
Publication restriction: Nil

JUDGMENT EX TEMPORE (REVISED)

Before me is a notice of motion filed by the defendant seeking orders that the proceedings be stayed pursuant to s 67 of the Civil Procedure Act 2005 (CPA) until the final determination of other proceedings in the High Court of Australia, that the date for the final hearing of the Statement of Claim in these proceedings listed on 31 August 2023 be vacated, and that the parties have liberty to apply to the Registrar to relist the proceedings for directions after the final determination of the High Court proceedings.
On 13 February 2023, Garling J granted an interim injunction to the plaintiff (the solicitor), restraining the defendant (the barrister) from registering two costs certificates as judgments of any court and restraining him from taking any step to enforce any claim for payment pursuant to those certificates: see Bingham v Bevan [2023] NSWSC 123. Those injunctions remain in place. Justice Garling ordered the matter to continue on pleadings. On 17 February 2023, the plaintiff filed a Statement of Claim. A defence was filed on 16 March 2023. The salient facts are set out in the judgment of his Honour of 14 February 2023, and concern the construction of a costs agreement pursuant to the Legal Profession Uniform Law (LPUL).
On 5 May 2023, the Court of Appeal handed down its decision in Bingham v Bevan [2023] NSWCA 86. In a unanimous judgment on appeal from Walton J (Bevan v Bingham [2022] NSWSC 863), the court reversed his Honour and found for the solicitor. That case concerned the construction of a costs agreement materially identical to that in this case.
The barrister filed an Application for…

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 [2023] NSWSC 998
Case: [2023] NSWSC 998
Decision Date: 21 August 2023

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Bingham v Bevan involved a dispute between the plaintiff, Bingham, and the defendant, Bevan. The plaintiff initiated legal proceedings against the defendant, seeking various remedies. The defendant, in response, filed a notice of motion requesting the court to stay the proceedings pending the outcome of a High Court Special Leave Application. This application was made to halt the current proceedings until the High Court made a decision on a related matter.

The central legal issue before the court was whether the proceedings should be stayed pending the outcome of the High Court Special Leave Application. The court had to consider whether a stay was appropriate under the relevant provisions of the Federal Court of Australia Act and the rules of court. Additionally, the court had to weigh the interests of both parties, including the potential prejudice that might result from either continuing or staying the proceedings.

The court found that a stay was not warranted in this instance. It held that the factors weighing in favour of a stay, such as the potential for a High Court decision to render the current proceedings moot, were not sufficiently compelling to warrant halting the current litigation. The court also considered the risk of prejudice to the plaintiff if the proceedings were stayed, which it found to be significant. Consequently, the court vacated the hearing and adjourned the proceedings. The motion to stay was dismissed, but without any order as to costs.

Orders