Bingham v Bevan [2022] NSWCA 248

Bingham v Bevan [2022] NSWCA 248

Leave to appeal should be granted to the extent required because the dismissal was final in practical terms, the registered judgment concerned a substantial amount, and the proposed appeal raised issues of general importance and principle concerning legal profession costs regulation, costs assessment, and registered judgments that were more than reasonably arguable.

Jurisdiction
Australia
Judgment Date
05 December 2022
Procedural Posture
Application for Leave to Appeal / Leave to Appeal From Judgment and Orders Made in the Common Law Division Dismissing a Summons to Set Aside a Registered Judgment
Outcome
Leave to appeal granted to the extent required; costs of the leave application ordered to be costs in the appeal.
Legal Topics
['leave to Appeal' 'registered Judgment' 'costs Assessment Certificate' 'costs Disclosure' "barristers' Fees" 'setting Aside Judgments']
['civil Procedure' 'legal Profession' 'costs'] ['leave to Appeal' 'registered Judgment' 'costs Assessment Certificate' 'costs Disclosure' "barristers' Fees" 'setting Aside Judgments']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Leave to Appeal From Judgment and Orders Made in the Common Law Division Dismissing a Summons to Set Aside a Registered Judgment

Legal Issues

  1. 1 ['Whether leave to appeal was required for an appeal from an order dismissing a motion to set aside a judgment where the practical effect was final.' 'Whether fees were payable where a fee disclosure agreement between barrister and solicitor provided that the barrister could not recover fees from the solicitor unless the solicitor was put in funds by the client, but the disclosures did not comply with the Legal Profession Uniform Law (NSW).' 'Whether the costs assessor had determined that the amount of costs assessed was payable and whether the factual findings supported that conclusion.' 'Whether the operation of the fee agreement was a matter to be determined by the costs assessor under the current Uniform Law.' 'Whether registration of a costs assessment certificate constituted entry of a judgment or order for the purposes of Pt 36 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the registered judgment was given or order made irregularly, illegally or against good faith within r 36.15(1).']

Ratio Decidendi

Leave to appeal should be granted to the extent required because the dismissal was final in practical terms, the registered judgment concerned a substantial amount, and the proposed appeal raised issues of general importance and principle concerning legal profession costs regulation, costs assessment, and registered judgments that were more than reasonably arguable.

Court Disposition

Leave to appeal granted to the extent required; costs of the leave application ordered to be costs in the appeal.

Orders

  • ['To the extent the matter requires a grant of leave to appeal, grant the applicant leave to appeal from the judgment and orders made in the Common Law Division.' 'Order that the costs of the application for leave be costs in the appeal.']