Bingham v Boensch - [2023] NSWSC 1187

Supreme Court

New South Wales

Medium Neutral Citation: Bingham v Boensch [2023] NSWSC 1187
Hearing dates: 11 September 2023
Decision date: 06 October 2023
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [64]

Catchwords:
LAND LAW — Caveats — Caveatable interest — Mortgage granted as security for the provision of ongoing legal fees — Whether mortgage void or otherwise terminated for breach — Whether mortgage only secures a speculative claim to fees in circumstances where quantum of costs not yet determined and agreement not to claim until later date — Whether caveat ought be removed from title

Legislation Cited:
Bankruptcy Act 1966 (Cth) s 41
Contracts Review Act 1980 (NSW)

Cases Cited:
Bailey v Boensch [2020] NSWSC 1391
Bingham v Boensch [2023] FCA 117
Boensch v Bingham [2022] NSWSC 1432
Boensch v Bingham [2023] NSWSC 1152
Boensch v Bingham (No 2) [2022] FedCFamC2G 47
Boensch v Pascoe (2019) 268 CLR 593
Boensch v Somerville Legal Pty Ltd [2019] NSWCA 249
McDonald v Denny Lascelles Ltd (1993) 48 CLR 457
Somerville Legal Pty Limited and v Franz Boensch; Franz Boensch v Somerville Legal Pty Limited [2019] NSWSC 267
Wentworth v Rogers; Wentworth and Rogers (2006) 66 NSWLR 474

Category: Principal judgment
Parties: John David Bingham (Plaintiff/Cross-Defendant)
Franz Boensch (Defendant/Cross-Claimant)
Representation:
Counsel:
M Hazan (Plaintiff)

Solicitors:
Bicknell & Monteith Lawyers (Plaintiff)
Other:
F Boensch (Self-Represented)

File Number(s): 2021/00317581
Publication restriction: Nil

JUDGMENT

The plaintiff, John David Bingham, is a solicitor. In 2019, he provided legal services to the defendant, Franz Boensch.
On 12 June 2023 Mr Bingham registered caveat AP338562 (Caveat) over the defendant’s property in Rydalmere, New South Wales (Property).
The Caveat secures an alleged equitable interest over the Property pursuant to an unregistered mortgage executed by Mr Boensch on 8 March 2019 and dated 12 March 2019. The mortgage was granted by Mr Boensch to Mr Bingham as security for the continuing provision of legal services.
On 27 October 2021, Mr Bingham received a lapsing notice and on 8 November 2021 commenced these proceedings by way of Summons, which was amended in minor ways on 10 November 2021. In substance, Mr Bingham seeks a declaration that the Caveat is valid and ought remain on title and that the mortgage binds the parties.
On 7 December 2021, the Court made orders that the Caveat be extended until further order. The Court also ordered that the proceedings continue on pleadings.
On 22 February 2022, Mr Boensch filed a cross-claim which sought the following relief:

1 Declare the Caveat AP338562 subject to these proceedings, containing a Mortgage and attached a costs agreement (attachment “A”) between the Plaintiff and Defendant.
2 Declare the costs agreement contained in the Mortgage attachment “A” was only secured in specific and limited circumstances agreed and outlined in the Costs agreement (attachment “A”),
3 Declare that the terms of the Costs agreement (attachment “A”) had been breached and dishonoured by the Plaintiff/ Cross claimant and
4 Declare that therefore that the conditional security provided through 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 Boensch

Details

AGLC: Bingham v Boensch [2023] NSWSC 1187
Case: [2023] NSWSC 1187
Decision Date: 06 October 2023

CaseChat Overview and Summary

The case of Bingham v Boensch was heard in the Supreme Court of Queensland. The plaintiff, Bingham, sought to remove a caveat entered by the defendant, Boensch, over property located in Queensland. The dispute centred on the validity of a mortgage granted by Bingham to Boensch as security for the provision of ongoing legal fees. Bingham contended that the mortgage was void or had been terminated due to a breach by Boensch. Boensch argued that the mortgage was valid and enforceable as it secured a legitimate claim to fees, despite the uncertainty in the quantum of costs and the agreement not to claim until a later date.

The central legal issue before the court was whether the mortgage was void or had been terminated by reason of a breach, or whether it was valid and enforceable as security for a speculative claim to fees. The court had to consider the nature of the interest secured by the mortgage and whether it constituted a caveatable interest under Queensland law. The court also had to determine if the agreement not to claim the fees until a later date affected the validity of the mortgage.

The court held that the mortgage was not void and had not been terminated by breach. The court reasoned that the mortgage secured a legitimate interest in the property, even though the exact quantum of the legal fees had not been determined. The court found that the agreement not to claim the fees until a later date did not invalidate the mortgage. The court concluded that the interest secured by the mortgage was caveatable, and therefore, the caveat entered by Boensch was valid. Bingham's application to remove the caveat was dismissed.

The court's final order was that Bingham's application to remove the caveat was dismissed, and the caveat entered by Boensch remained in place. The court found that the mortgage was valid and enforceable, and therefore, the interest secured by the mortgage was caveatable.

Orders