Bingham v Bevan - [2023] NSWSC 123

Supreme Court

New South Wales

Medium Neutral Citation: Bingham v Bevan [2023] NSWSC 123
Hearing dates: 13 February 2023
Date of orders: 14 February 2023
Decision date: 14 February 2023
Jurisdiction: Common Law
Before: Garling J
Decision:
Interim injunction granted

Catchwords:
LEGAL PRACTITIONERS — Injunction — where the plaintiff solicitor sought an interim injunction restraining the defendant barrister from registering Costs Certificates issued by a review panel — where the Costs Certificates upon registration would become a judgment of a court — where the Costs Certificates related to a retainer agreement between the solicitor and barrister — where the agreement specified that the solicitor would be liable for the barrister’s fees only to the extent that his client had put him into the necessary funds — where the review panel found that the agreement was void ab initio — whether interim injunction restraining the barrister from registering Costs Certificates should be granted — where interim injunction granted

Legislation Cited:
Bankruptcy Act 1966 (Cth)
Legal Profession Uniform Law (NSW) 2014
Legal Professional Uniform Law Application Act 2014
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

Cases Cited:
Bevan v Bingham & Ors [2023] NSWSC 19

Texts Cited:
Not Applicable

Category: Procedural rulings
Parties: John Bingham (P)
Christopher Bevan (D)
Representation:
Counsel:
M Hazan (P)
I Sethi (D)
Solicitors:
Bicknell & Monteith Lawyers (P)
Breene & Breene Solicitors (D)

File Number(s): 2023/47815
Publication restriction: Not Applicable

JUDGMENT

On 13 February 2023 the plaintiff, John David Bingham (“the solicitor”), commenced proceedings by Summons filed in Court against Christopher John Bevan (“the barrister”). The plaintiff sought, by way of final relief, declarations that the barrister has no entitlement to register certain costs certificates (“the Costs Certificates”) as a judgment of the Court until the solicitor is put in funds by his client, Mrs Evangelina Kessly (“the client”), for the amounts specified in the Costs Certificates.
In that Summons, the solicitor also sought an interim injunction by way of an order of the Court, until further order, restraining the barrister from registering the Costs Certificates.
The application for the interim order was heard by me yesterday in the duty list. Because of other matters in the list, I was unable to deliver judgment immediately but adjourned the matter until this morning for the purpose of delivery of judgment. The short length of time available to me for the delivery of this judgment means that the reasons are necessarily truncated and assume knowledge of the full detail of the background facts and circumstances.

Costs Certificates

I have earlier mentioned the term "the Costs Certificates". Some further definition is necessary. There are two Costs Certificates. Both were issued on 22 April 2021 by a Review Panel (“the Review Panel”) pursuant to the Legal Profession Uniform Law Application Act 2014 (“the LPULA Act”). The first is a Certificate of Determination of Review in the sum of $222,285.80 (“the first certificate”). The second is a Certificate of Determination of Review Panel Costs in the sum of $2,100.45…

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 123
Case: [2023] NSWSC 123
Decision Date: 14 February 2023

CaseChat Overview and Summary

In the matter of Bingham v Bevan, the plaintiff, a solicitor, sought an interim injunction against the defendant, a barrister, to prevent the registration of Costs Certificates issued by a review panel. The Costs Certificates, if registered, would effectively become judgments of the court. The certificates pertained to a retainer agreement between the plaintiff and defendant, which stipulated that the plaintiff would only be liable for the defendant's fees up to the amount that the client had provided. The review panel determined that the retainer agreement was invalid from the outset. The primary legal issue before the court was whether to grant an interim injunction to restrain the defendant from registering the Costs Certificates.

The court considered whether the plaintiff had demonstrated a serious question to be tried and that the balance of convenience favoured the grant of an interim injunction. The plaintiff argued that if the Costs Certificates were registered, they would be liable for fees beyond the amount provided by their client, contrary to the terms of their retainer agreement. The court recognised the importance of preserving the status quo and preventing potential prejudice if the agreement was later found to be valid. The court found that the plaintiff had established a serious question to be tried and that the balance of convenience favoured the grant of the injunction. Consequently, the court granted the interim injunction.

The court's decision to grant the interim injunction was based on the potential for significant prejudice to the plaintiff if the Costs Certificates were registered, coupled with the likelihood that the plaintiff would succeed in their claim that the retainer agreement was valid. The court acknowledged the importance of maintaining the legal framework governing the relationship between solicitors and their clients, particularly in the context of fee agreements. As a result, the court ordered that the defendant be restrained from registering the Costs Certificates pending the outcome of the proceedings.

Orders