Bingham v Bevan [2023] NSWSC 123

Bingham v Bevan [2023] NSWSC 123

The solicitor had proffered the usual undertaking as to damages and had an arguable contractual case that, under clauses 4 and 7 of the retainer agreement, the barrister's right to payment or enforcement was conditional on the solicitor first being put in funds by his client. The Court had jurisdiction because the costs assessment process had concluded. The balance of convenience favoured preserving the dispute because registration would make the certificates judgments, with significant adverse consequences and only limited bases for setting them aside, while any prejudice to the barrister could be addressed by the undertaking as to damages.

Jurisdiction
Australia
Judgment Date
14 February 2023
Procedural Posture
Summons Seeking Declarations and Interim Injunction / Interlocutory Application for Interim Injunction
Outcome
Interim injunction granted
Legal Topics
['interim Injunction' 'costs Certificates' 'registration of Costs Certificates as Judgment' 'retainer Agreement' 'undertaking as to Damages' 'balance of Convenience']
['legal Practitioners' 'civil Procedure' 'contract Law' 'costs Assessment'] ['interim Injunction' 'costs Certificates' 'registration of Costs Certificates as Judgment' 'retainer Agreement' 'undertaking as to Damages' 'balance of Convenience']

Case Brief

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Procedural Posture

Summons Seeking Declarations and Interim Injunction / Interlocutory Application for Interim Injunction

Legal Issues

  1. 1 ['Whether the solicitor had an arguable claim that the barrister could not register or enforce the Costs Certificates until the solicitor was put in funds by his client.' 'Whether the Supreme Court had jurisdiction to restrain registration of the Costs Certificates after the costs assessment process had concluded.' 'Whether the balance of convenience favoured granting an interim injunction restraining registration and enforcement of the Costs Certificates.']

Ratio Decidendi

The solicitor had proffered the usual undertaking as to damages and had an arguable contractual case that, under clauses 4 and 7 of the retainer agreement, the barrister's right to payment or enforcement was conditional on the solicitor first being put in funds by his client. The Court had jurisdiction because the costs assessment process had concluded. The balance of convenience favoured preserving the dispute because registration would make the certificates judgments, with significant adverse consequences and only limited bases for setting them aside, while any prejudice to the barrister could be addressed by the undertaking as to damages.

Court Disposition

Interim injunction granted

Orders

  • ['Order until further order that the defendant be restrained by himself, his servants or agents from taking any step or causing any step to be taken to register a Certificate of Determination of Review dated 22 April 2021 in the amount of $222,285.80 as a judgment of any Court, and the Certificate of Determination...