Boensch v Bingham

Case [2024] NSWCA 116

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Boensch v Bingham [2024] NSWCA 116
Hearing dates: 22 April 2024
Date of orders: 20 May 2024
Decision date: 20 May 2024
Before: Gleeson JA at [1]
White JA at [70]
Griffiths AJA at [71]
Decision:

Appeal dismissed with costs.

Catchwords:

MORTGAGES AND SECURITIES — Unregistered mortgage — Where mortgage granted as security for legal fees — Whether caveat claiming an interest pursuant to mortgage valid — Whether mortgage void or otherwise terminated for breach — Whether mortgage secures forensic and speculative amount — Whether mortgage executed as a deed in accordance with requirements of Conveyancing Act 1919 (NSW), s 38

COSTS — Solicitor/client — Costs agreement — Where costs estimate given and costs agreement capped legal costs — Whether mortgage constituting costs agreement void by reason of asserted non-compliance with disclosure obligations to provide an updated costs estimate

COSTS — Solicitor/client — Costs assessment — Where Costs Review Panel found costs payable pursuant to mortgage constituting costs agreement — Where mortgage terms cap amount payable and defer date for payment of costs — Where Costs Review Panel determined it lacked jurisdiction to determine costs assessment application before costs became payable under agreement — Whether attempt to enforce costs agreement before costs fell due constitutes breach of agreement

APPEALS — Appeal by mortgagor against declarations that mortgage secures legal costs and is enforceable subject to final quantification by assessment process after a future date — Whether trial judge misinterpreted findings of other courts on related issues between same parties

CIVIL PROCEDURE — Pleadings — Departure from pleadings — Whether respondent acquiesced in appellant’s departure from pleadings — Whether trial judge should have made findings on matters not pleaded below

EQUITY — Defences — Set-off — Whether client’s claim against solicitor in negligence in separate proceedings capable of offsetting amount owing under costs agreement — Where negligence claim still on foot and neither party presently has a monetary judgment against the other

Legislation Cited:

Contracts Review Act 1980 (NSW)

Conveyancing Act 1919 (NSW), ss 23B, 38

Legal Profession Uniform Law 2014 (NSW), ss 172, 174, 178, 180, 184, 185

Real Property Act 1900 (NSW), s 74I

Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.18(1)(e)

Cases Cited:

Australian Beverage Distributors Pty Ltd v Evans and Tate Premium Wines Pty Ltd [2006] NSWSC 560; (2006) 58 ACSR 22

Bailey v Boensch [2020] NSWSC 1391

Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279

Bingham v Bevan (2023) 111 NSWLR 287; [2023] NSWCA 86

Bingham v Boensch [2023] FCA 117

Boensch v Bingham (No 2) [2022] FedCFamC2G 47

Boensch v Bingham [2022] NSWSC 1432

Boensch v Bingham [2023] NSWSC 1152

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Graham v Hall (2006) 67 NSWLR 135; [2006] NSWCA 208

Lord v Direct Acceptance Ltd (1993) 32 NSWLR 362

Mostyn v Mostyn (1989) 16 NSWLR 635

Rawson v Samuel (1841) 1 Cr…

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AGLC
Boensch v Bingham [2024] NSWCA 116
Case
[2024] NSWCA 116
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between a mortgagor, Boensch, and a mortgagee, Bingham, a solicitor. Boensch sought to challenge the validity and enforceability of an unregistered mortgage granted to Bingham as security for legal fees. The central issue was whether the mortgage was void or otherwise terminated due to alleged breaches, and whether it secured a forensic and speculative amount. Further questions arose regarding the mortgage's compliance with the *Conveyancing Act 1919* (NSW) and whether it constituted a void costs agreement due to non-compliance with disclosure obligations concerning updated cost estimates.

The court was required to determine whether the mortgage, granted as security for legal fees, was valid and enforceable. This involved considering whether the mortgage was void or terminated for breach, and whether it secured a forensic and speculative amount. Additionally, the court had to assess whether the mortgage, if it constituted a costs agreement, was void due to asserted non-compliance with disclosure obligations to provide an updated costs estimate. The court also considered whether an attempt to enforce the costs agreement before costs became payable constituted a breach of that agreement, and whether the mortgagor's claim against the solicitor in negligence in separate proceedings could be set off against the amount owing under the costs agreement.

The court reasoned that the mortgage was validly executed as a deed in accordance with s 38 of the *Conveyancing Act 1919* (NSW). It found that the mortgage secured legal costs, and while the terms of the mortgage capped the amount payable and deferred the date for payment, this did not render it void. The Costs Review Panel had previously found costs payable pursuant to the mortgage, and the court determined that it lacked jurisdiction to determine the costs assessment application before costs became payable under the agreement. The court also held that the mortgagor's claim in negligence, being still on foot and without a monetary judgment for either party, was not capable of offsetting the amount owing under the costs agreement. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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