Boensch v Bingham [2024] NSWCA 116

Boensch v Bingham [2024] NSWCA 116

The appeal failed because the alleged costs disclosure issue under s 174 and s 178 of the Legal Profession Uniform Law was not pleaded or tried, the earlier FCFCOA and FCA decisions established that the binding costs agreement was the mortgage rather than the February or October 2019 costs disclosures, any premature enforcement steps by Mr Bingham did not terminate the mortgage because Mr Boensch did not accept any repudiation, the Costs Review Panel expressly left open a later assessment when liability crystallised, no present judgment or proved equitable set-off defeated the caveatable interest, and the deed was validly witnessed notwithstanding the discrepancy in the witness's JP number.

Jurisdiction
Australia
Judgment Date
20 May 2024
Procedural Posture
Civil Appeal Concerning Validity of Caveat and Unregistered Mortgage Securing Legal Costs / Appeal From Supreme Court of New South Wales, Equity Division, [2023] NSWSC 1187, Dismissed by the NSW Court of Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['unregistered Mortgage' 'caveat Under Real Property Act' 'solicitor/client Costs Agreement' 'costs Disclosure Obligations' 'costs Assessment' 'repudiation and Termination' 'set Off' 'execution of Deed']
['mortgages and Securities' 'legal Costs' 'civil Procedure' 'equity' 'appeals'] ['unregistered Mortgage' 'caveat Under Real Property Act' 'solicitor/client Costs Agreement' 'costs Disclosure Obligations' 'costs Assessment' 'repudiation and Termination' 'set Off' 'execution of Deed']

Case Brief

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Procedural Posture

Civil Appeal Concerning Validity of Caveat and Unregistered Mortgage Securing Legal Costs / Appeal From Supreme Court of New South Wales, Equity Division, [2023] NSWSC 1187, Dismissed by the NSW Court of Appeal

Legal Issues

  1. 1 ['Whether the unregistered mortgage and caveat were void because of alleged non-compliance with costs disclosure obligations under the Legal Profession Uniform Law 2014 (NSW).' 'Whether the primary judge misinterpreted earlier Federal Circuit and Family Court of Australia and Federal Court findings concerning the costs agreement constituted by the mortgage.' "Whether Mr Bingham's steps to assess costs, register a certificate as judgment and issue a bankruptcy notice before 1 March 2024 terminated or avoided the mortgage." "Whether the Costs Review Panel's $Nil certificate prevented any later costs assessment after 1 March 2024." "Whether Mr Boensch's separate negligence claim against Mr Bingham could be set off against any amount secured by the mortgage." "Whether the mortgage was invalid because Mr Bingham's signature was not properly witnessed under the Conveyancing Act 1919 (NSW)."]

Ratio Decidendi

The appeal failed because the alleged costs disclosure issue under s 174 and s 178 of the Legal Profession Uniform Law was not pleaded or tried, the earlier FCFCOA and FCA decisions established that the binding costs agreement was the mortgage rather than the February or October 2019 costs disclosures, any premature enforcement steps by Mr Bingham did not terminate the mortgage because Mr Boensch did not accept any repudiation, the Costs Review Panel expressly left open a later assessment when liability crystallised, no present judgment or proved equitable set-off defeated the caveatable interest, and the deed was validly witnessed notwithstanding the discrepancy in the witness's JP number.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']