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Sydney barrister ordered to repay solicitor after invoice stoush
A Sydney barrister who charged a solicitor a figure almost five times higher than the original costs estimate has been handed a hefty reimbursement order in NSW’s Court of Appeal.
Naomi Neilson
Just over $136,525 will be returned to North Sydney solicitor John David Bingham following a lengthy legal stoush with barrister Christopher Bevan over an invoice for his work in the High Court.
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Mr Bevan was retained by Mr Bingham in February 2019 to seek special leave to appeal and to conduct the appeal if leave were granted on behalf of a client caught up in a bankruptcy matter.
Although the original costs order estimated a total fee of $60,000, Mr Bevan invoiced Mr Bingham’s client $291,066.60.
In an email sent to Mr Bingham about the invoice, Mr Bevan agreed the amount “well and truly exceeds my original estimates”.
As part of the parties’ costs agreement entered in February 2019, there was a stipulation that Mr Bingham’s liability for payment was conditional on either recovering the fees from the client or from the respondent “in the event of success” in the High Court.
Special leave was granted, but the appeal was dismissed, meaning no costs were rewarded and the client entered bankruptcy.
In a hearing late last month, the NSW Court of Appeal was told Mr Bingham was not liable for payment due to the costs agreement’s stipulation.
Around the time the invoice was issued in October 2019, a costs assessor found Mr Bevan “contravened his disclosure obligations”, but did not give reasons and the costs agreement was void.
The costs assessor then issued a certificate in the amount of $310,375.39, and Mr Bevan filed this as a judgment of the court.
When Mr Bingham learnt of this, he lodged an application with the costs assessor seeking an extension of time to file an application for review, but this was rejected on the basis that the “only ground of review was that the costs were not yet payable”.
Mr Bingham also filed a notice of motion seeking to set aside the registration of the judgment and a garnishee order served on the client in the amount of $131,485. This was dismissed in the Common Law Division in June 2022.
In the appeal hearing heard last month, Mr Bingham sought a finding that despite the voided costs agreement, the barrister was “not entitled to recover costs which would not have been due and payable had the agreement remained on foot”.
The Court of Appeal allowed Mr Bingham’s appeal and ordered Mr Bevan to pay Mr Bingham’s costs and reimburse the $136,525 garnishee order, including interest.
The court found the barrister was precluded from receiving the costs because “if the agreement were on foot, then (the stipulation) would dictate that costs were not payable”.
The court also found the judgment was entered “irregularly”.
