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Solicitor’s fight over fees extends into property war
An NSW man told a court a caveat on his property to secure legal services should be voided because of an extensive fight with his former solicitor over deception and fraud allegations.
Naomi Neilson
Just weeks after solicitor John David Bingham and former client Franz Boensch were in the NSW Supreme Court to argue over an amended statement of claim, the two warring parties returned to determine the fate of a caveat on the latter’s Sydney property.
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The caveat was registered in June 2023 by Mr Bingham to secure the mortgage for costs incurred for legal services between February and December 2019. The relationship soon broke down, and Mr Bingham is still seeking the payment of his fees.
In February 2022, Mr Boensch filed a cross-claim seeking a finding that Mr Bingham breached the terms of the costs agreement and that the conditional security through the mortgage was “nil and void”.
Mr Boensch gave eight reasons in favour of voiding the caveat, including that he has other proceedings on foot against Mr Bingham alleging “professional misconduct, negligence, deception and unjust enrichment due to fraud” relating to the period of his legal services.
He submitted these proceedings could lead to damages awarded in his favour and, because he said there is not a valid costs agreement, and the terms of the mortgage were breached, the mortgage secures a speculative claim to fees, and the caveat should be removed.
While not advanced in writing, Mr Boensch also argued that Mr Bingham had not demonstrated the mortgage agreement was valid because there was “some uncertainty” around a signature.
The Supreme Court did not agree and found Mr Boensch is “not entitled to any relief sought in his cross-claim”.
The court ordered the mortgage secures the costs incurred for the provision of legal services, and Mr Bingham is entitled to enforce this.
