Boensch v Bingham [2024] NSWCA 116

Court of Appeal Supreme Court New South Wales 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 & Ph 161; 41 ER 451 Re Fewin Pty Ltd [2017] NSWSC 1093 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (2019) 100 NSWLR 432; [2019] NSWCA 135 Texts Cited: Derham, On the Law of Set-off (Oxford University Press, 4th Ed, 2010) Category: Principal judgment Parties: Franz Boensch (Appellant) John David Bingham (Respondent) Representation: Counsel: D P Robinson SC / M A Hazan (Respondent)