Bingham v Boensch

In the case of Bingham v Boensch, the appellant sought to appeal the decision of the primary judge who ordered that a bankruptcy notice be set aside on the basis that the costs determination did not reflect the debt in truth owed. The primary judge had found that the only costs agreement between the parties was a mortgage executed by the appellant, which regulated the respondent's liability to pay legal costs. The primary judge concluded that the costs determination did not represent a lawful determination, and therefore, the bankruptcy notice was liable to be set aside.

The court was required to decide whether the costs agreements entered into were on the terms contained in the costs disclosures sent to the respondent and whether the liability to pay legal costs was regulated by the terms of the mortgage. The court also had to determine whether there were substantial reasons for questioning that the costs determination was made free from jurisdictional error.

The court found that the primary judge's findings were supported by substantial reasons, and therefore, the costs determination was not made free from jurisdictional error. The court held that the only costs agreement between the parties was the mortgage executed by the appellant, which regulated the respondent's liability to pay legal costs. The court also held that the primary judge was correct in finding that the costs determination did not represent a lawful determination, and therefore, the bankruptcy notice was liable to be set aside.

The appeal was dismissed, and the appellant was ordered to pay the costs of the respondent to be agreed or assessed.