Bevan v Bingham (No2) [2025] NSWSC 110

Bevan v Bingham (No2) [2025] NSWSC 110

The application to set aside the costs order was dismissed because the Court found the initial dismissal of the appeal was made at Mr Bevan’s own volition and not due to incompetence; therefore UCPR 50.16A did not apply. The plaintiff acted unreasonably and put the defendant to unnecessary expense, justifying an order for indemnity and ordinary costs. It was appropriate, based on uncontested expert evidence, for those costs to be quantified by gross sum orders to avoid further litigation.

Parties
Plaintiff: Christopher Bevan; Defendant: John Bingham
Jurisdiction
Australia
Judgment Date
27 February 2025
Procedural Posture
Costs Assessment Appeal / Post Trial, Motions (final Orders on Motions and Costs)
Outcome
Plaintiff's notice of motion dismissed. Costs order varied to specify gross sums. Plaintiff ordered to pay defendant's costs of the motions and the appeal in fixed gross sums.
Legal Topics
Costs, Costs Assessment, Indemnity Costs, Notice of Motion, Gross Sum Costs Order
Civil Procedure Costs Costs Assessment Indemnity Costs Notice of Motion Gross Sum Costs Order

Case Brief

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Parties

Christopher Bevan

Plaintiff

John Bingham

Defendant

Procedural Posture

Costs Assessment Appeal / Post Trial, Motions (final Orders on Motions and Costs)

Legal Issues

  1. 1 Whether the costs order made on 25 October 2024 should be set aside or varied under UCPR 36.16
  2. 2 Whether UCPR 50.16A, relating to competency of appeals, displaced the usual costs regime under UCPR 42
  3. 3 Whether gross sum costs orders should be made and in what amount

Ratio Decidendi

The application to set aside the costs order was dismissed because the Court found the initial dismissal of the appeal was made at Mr Bevan’s own volition and not due to incompetence; therefore UCPR 50.16A did not apply. The plaintiff acted unreasonably and put the defendant to unnecessary expense, justifying an order for indemnity and ordinary costs. It was appropriate, based on uncontested expert evidence, for those costs to be quantified by gross sum orders to avoid further litigation.

Court Disposition

Plaintiff's notice of motion dismissed. Costs order varied to specify gross sums. Plaintiff ordered to pay defendant's costs of the motions and the appeal in fixed gross sums.

Orders

  • The plaintiff's notice of motion filed 8 November 2024 is dismissed.
  • Pursuant to UCPR 36.16, the costs order made on 25 October 2024 is varied.