Boesnsch v Bingham [2022] NSWSC 1432

Boesnsch v Bingham [2022] NSWSC 1432

The interests of justice required intervention because the Manager, Costs Assessment's refusal to extend time had a decisive impact on the plaintiff's rights, the approach to prejudice and the pending Federal Circuit and Family Court hearing was flawed, the plaintiff had been actively contesting the asserted costs liability, and the Federal Circuit and Family Court had made findings that the relevant costs agreement was constituted by the mortgage and that the plaintiff's costs liability was capped at $100,000. Those findings gave the proposed review substantial merit and either had preclusive effect by issue estoppel or were highly material to any review panel. Any delay and imperfect...

Jurisdiction
Australia
Judgment Date
21 October 2022
Procedural Posture
Application to Review a Decision of the Manager, Costs Assessment Refusing an Extension of Time to Challenge a Costs Assessor's Decision / Principal Judgment on Amended Summons
Outcome
Application granted; decision of the Manager, Costs Assessment set aside; extensions of time granted; costs assessment referred to a review panel.
Legal Topics
['costs Assessment' 'extension of Time' "review of Registrar's Decision" 'review Panel' 'issue Estoppel' 'bankruptcy Notice']
['costs' 'legal Profession' 'civil Procedure'] ['costs Assessment' 'extension of Time' "review of Registrar's Decision" 'review Panel' 'issue Estoppel' 'bankruptcy Notice']

Case Brief

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Procedural Posture

Application to Review a Decision of the Manager, Costs Assessment Refusing an Extension of Time to Challenge a Costs Assessor's Decision / Principal Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether time should be extended for filing a summons seeking review of the decision of the Manager, Costs Assessment.' 'Whether the decision of the Manager, Costs Assessment dated 3 December 2021 should be set aside.' "Whether time should be extended for lodging an application to review the costs assessor's decision dated 9 December 2020." "Whether the plaintiff's proposed review had substantial merit in light of findings of the Federal Circuit and Family Court of Australia about the costs agreement and costs cap." 'Whether the defendant would suffer prejudice if an extension of time were granted.' 'Whether findings in the related Federal Circuit and Family Court proceedings gave rise to an issue estoppel or were otherwise highly material to the costs review.']

Ratio Decidendi

The interests of justice required intervention because the Manager, Costs Assessment's refusal to extend time had a decisive impact on the plaintiff's rights, the approach to prejudice and the pending Federal Circuit and Family Court hearing was flawed, the plaintiff had been actively contesting the asserted costs liability, and the Federal Circuit and Family Court had made findings that the relevant costs agreement was constituted by the mortgage and that the plaintiff's costs liability was capped at $100,000. Those findings gave the proposed review substantial merit and either had preclusive effect by issue estoppel or were highly material to any review panel. Any delay and imperfect...

Court Disposition

Application granted; decision of the Manager, Costs Assessment set aside; extensions of time granted; costs assessment referred to a review panel.

Orders

  • ['Extend the time for filing a summons seeking a review of the decision of the Manager, Costs Assessment, until 30 January 2022.' 'Set aside the decision of the Manager, Costs Assessment, dated 3 December 2021.' 'Extend the time for lodging an application to review the decision of the costs assessor dated 9 December...