Boensch v Bingham

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.