Bingham v Bevan [2023] NSWCA 86

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bingham v Bevan [2023] NSWCA 86 Hearing dates: 24 April 2023 Date of orders: 5 May 2023 Decision date: 05 May 2023 Before: Meagher JA at [1]; White JA at [2]; Basten AJA at [3] Decision: (1) Allow the appeal and set aside the judgment delivered on 29 June 2022 in the Common Law Division and the orders entered on 12 September 2022. (2) In place thereof: (a) set aside the judgment entered in favour of the plaintiff on 19 February 2021; and (b) order that the plaintiff (Christopher Bevan) pay the costs of the defendant (John David Bingham) of the proceedings on the notice of motion of 30 March 2021. (3) Order that the respondent pay to the appellant the amount of $136,525.95 by way of reimbursement of moneys paid to the respondent pursuant to a garnishee order. (4) Order that the respondent pay the appellant's costs of the proceedings in this Court. Catchwords: COSTS – assessment – jurisdiction of costs assessor to make binding finding as to liability to pay costs – effect of finding as to breach of disclosure obligations by applicant for assessment – effect of certificate determining amount of costs payable – whether finding that costs due and payable COSTS – disclosure obligations – costs agreements – agreement between law practices – payment contingent on solicitor being funded by client – barrister's disclosure obligations to solicitor – barrister issued invoice for amount grossly in excess of costs estimate – contravention of disclosure obligations – costs agreement void – effect on contingent liability – statutory protection from liability for more than due under void contract – effect of s 185(2) of Legal Profession Uniform Law (NSW) JUDGMENTS AND ORDERS – certificate of determination of costs – effect of filing of certificate and entry as judgment of court – whether taken to be a judgment of that court if no liability to pay fees –whether judgment entered irregularly, illegally or against good faith – whether judgment given in absence of a party Legislation Cited: Civil Procedure Act 2005 (NSW), ss 100, 101, 133 Interpretation of Legislation Act 1984 (Vic), ss 35, 36 Legal Profession Act 2004 (NSW), s 368 Legal Profession Uniform Law Application Act 2014 (NSW), ss 70, 93C Legal Profession Uniform Law (NSW), ss 169, 171, 172, 174, 175, 178, 179, 180, 181, 182, 183, 184, 185, 199 Legal Profession Uniform General Rules 2015 (NSW), r 72A Uniform Civil Procedure Rules 2005 (NSW), rr 36.1, 36.10, 36.15, 36.16 Cases Cited: Birketu v Castagnet [2022] NSWSC 1435 Boensch v Pascoe [2019] HCA Trans 133 Calandra v Murden [2015] NSWCA 231 Wentworth v Rogers [2002] NSWSC 709 Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 Wills v Woolworths Group Ltd [2022] FCA 1545 Category: Principal judgment Parties: John David Bingham (Appellant) Christopher Bevan (Respondent) Representation: Counsel: D Robinson SC / M Hazan (Appellant) M Cashion SC / I Sethi (Respondent)