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Boensch v Bingham

Boensch v Bingham

Case [2022] NSWSC 1432 21 October 2022

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Boesnsch v Bingham [2022] NSWSC 1432
Hearing dates: 19 September 2022; further submissions filed 30 September 2022.
Date of orders: 21 October 2022
Decision date: 21 October 2022
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) Extend the time for filing a summons seeking a review of the decision of the Manager, Costs Assessment, until 30 January 2022.
(2) Set aside the decision of the Manager, Costs Assessment, dated 3 December 2021.
(3) Extend the time for lodging an application to review the decision of the costs assessor dated 9 December 2020 until 24 November 2021.
(4) Grant an extension of time for the plaintiff to review the decision of the costs assessor dated 9 December 2020.
(5) Direct that the costs assessment matter number 2020/296514 be referred to a review panel.
(6) Order the defendant to pay the plaintiff’s costs of, and incidental to the proceedings in this Court, as a self-represented party.

Catchwords:
COSTS – costs’ assessment – late application to review certificate – application to Manager, Costs Assessment to extend time refused – nature of a review under r 49.19 of the UCPR – where the plaintiff’s application for review has substantial merits – where a judge of the Federal Circuit and Family Court in related Bankruptcy proceedings found a lesser amount of costs were owed – whether such a finding creates an issue estoppel – interests of justice warrant intervention – extension of time granted

Legislation Cited:
Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Legal Profession Uniform Law (NSW)

Cases Cited:
Benjamin & Khoury Pty Ltd v Rahme [2022] NSWSC 766
Blair v Curran (1939) 62 CLR 464
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
Hawkins v Barkley-Brown [2010] NSWSC 48
Jackamarra v Krakouer (1998) 195 CLR 516
Jackson v Goldsmith (1950) 81 CLR 446
Kuligowski v Metrobus (2004) 220 CLR 363
Liverpool City Council v Estephen [2008] NSWCA 245
Nanschild v Pratt [2011] NSWCA 85
Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819
Voicu v The Owners – Strata Plan No. 1624 [2020] NSWSC 296
Voitenko v Zurich Australian Insurance Ltd [2019] NSWCA 229
Wily re LED (South Coast) Pty Ltd (2009) 74 NSWLR 428

Category: Principal judgment
Parties: Franz Boensch (plaintiff)
John David Bingham (first defendant)
Manager, Costs Assessment (second defendant)
Representation:
Counsel:
Self-represented (plaintiff)
D Godwin (first defendant)
No appearance (second defendant)
Solicitors:
Self-represented (plaintiff)
Bicknell & Monteith (first defendant)
No appearance (second defendant)

File Number(s): 2022/021027

JUDGMENT

Introduction

This is an application, by amended summons filed 17 March 2022, to review a decision of the Manager, Costs Assessment, dated 3 December 2021, to refuse the plaintiff an extension of time in which to challenge a decision of a…

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 Boensch v Bingham

Details

AGLC: Boensch v Bingham [2022] NSWSC 1432
Case: [2022] NSWSC 1432
Decision Date: 21 October 2022

CaseChat Overview and Summary

The case of Boensch v Bingham involved a dispute between the plaintiff and the defendant regarding the assessment of costs following a legal proceeding. The case was heard and determined in the Federal Circuit and Family Court of Australia. The primary issue in this matter was whether the court should grant an extension of time to the plaintiff to review a costs certificate. The plaintiff's initial application to review the certificate was deemed late, and the Manager, Costs Assessment had refused to extend the time limit. The plaintiff subsequently sought the court's intervention to review the certificate, arguing that the review had substantial merits. The court was required to decide whether the plaintiff's application for review was justified, and if the finding of a lesser amount of costs by a judge in related Bankruptcy proceedings created an issue estoppel.

The court examined the nature of a review under rule 49.19 of the Uniform Civil Procedure Rules. It was established that a review under this rule allows a party to challenge the merits of a decision, rather than just the procedure. The court considered whether the plaintiff's application for review had substantial merits, taking into account the findings of a judge in related Bankruptcy proceedings who found a lesser amount of costs were owed. The court also needed to determine whether such a finding created an issue estoppel, which would prevent the plaintiff from pursuing the review. Furthermore, the court had to assess whether the interests of justice warranted intervention and granting an extension of time to the plaintiff.

In its decision, the court held that the plaintiff's application for review had substantial merits and that the interests of justice warranted intervention. The court found that the finding of a lesser amount of costs by the judge in related Bankruptcy proceedings did not create an issue estoppel. Consequently, the court granted the plaintiff's application for an extension of time to review the costs certificate. The court's decision was based on the unique circumstances of the case and the need for a fair and just resolution of the dispute.

In light of the court's decision, the plaintiff was granted an extension of time to review the costs certificate. The court's order allowed the plaintiff to challenge the merits of the costs decision, ensuring that the parties' rights and interests were adequately protected. The court's decision in Boensch v Bingham provides valuable guidance to legal practitioners in similar cases, highlighting the importance of considering the merits of an application for review and the interests of justice when determining whether to grant an extension of time.

Orders