Bevan v Bingham

Mr. Bevan Submissions

1. Mr Bevan submitted that the non- application of UCPR 50.16A is a significant omission because UCPR 50.16A prevails over UCPR 42.
2. He referred to AB v State of NSW [2014] NSWCA 243 ("AB") at [19], where Leeming JA said (in relation to the identical provision in UCPR 51.41 concerning appeals made to the Court of Appeal): "Ordinarily, the starting point for the exercise of the costs discretion in s 98 of the Civil Procedure Act 2005 (NSW) is that costs should follow the event: r 42.1. That rule is expressed to be "Subject to this Part", but it is also necessary for it to be construed in light of the UCPR as a whole, and in particular, in light of the special provision made by r 51.41 which is in mandatory terms ('"the respondent is not entitled to costs of the appeal"). The provisions of r 51.41 represent. in my view. "an exhaustive definition" of the manner as to which the s 98 power to make orders as to costs is to be exercised in cases of this kind They also reflect a "particular provision which prescribes the mode in which [the power] shall be exercised and the conditions and restrictions which must be observed". The previous two sentences echo the language of the High Court in Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 and Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR I. In accordance with the settled principles of construction there identified by the High Court, the general language of r 42.1 is displaced".
3. The costs provisions in UCPR 50.16A(2) are operative in this case because the first defendant did not comply with UCPR 50.16A, and the proceedings were dismissed on the basis of incompetence, where they were found to be doomed to fail because they were brought in the wrong jurisdiction, Bevan 1 at [29], [69], [74].
4. Mr Bevan also referred to the power of the court to set-aside orders under UCPR 36.16 where a significant submission has not been dealt with (known as the Autodesk principle) which was recently explained by Kunc J in Ghosh v Newtown (No 10) [2024] NSWSC 1170 at [11]-[12], where his Honour said: "There was no dispute concerning the relevant legal principles as to the application of r 36.16. Ms Ghosh primarily relied on the proposition that it was appropriate for a party to make an application under r 36.16 to the trial judge if she or he had not dealt with a significant submission made by that party: Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4 per Macfarlan J (Bathurst CJ and Tobias AJA agreeing) at [39-41]. Ms Ghosh also relied on the oft-cited dictum of Mason J (as his Honour then was) in Autodesk inc v Dyason (No2) (1993) 176CLR 300, 302-303; [1993] HCA 6: 'These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases'."
5. These principles set out above are not in dispute.
6. Mr Bevan submitted that he is not entitled to a reconsideration of the orders simply because he has brought an application under UCPR 36.16(3A). The court's discretion should be exercised cautiously and is usually exercised only in special circumstances. Such circumstances will exist where the argument before the court proceeded to be determined on a misapprehension of the relevant law, Johnson v MacKinnon (No 2) [2022] NSWCA 22 at [5].
7. The jurisdiction under UCPR 36.16 is enlivened in this case because the argument before the court proceeded to be determined on a misapprehension that principles relevant to UCPR 42 were applicable, instead of under UCPR 50.16A. The distinction between the two provisions is stark because UCPR 50.16A works from the starting point that the first defendant is not entitled to costs.
8. The question then becomes, should the order be set-aside so that it is consistent with UCPR 50.16A(2) and there is no costs order in favour of Mr Bingham? Or should the court make an order requiring him to pay any costs incurred by Mr Bevan which are, upon assessment, proven to be useless or unnecessary?
9. Mr Bevan further submitted that the court should require Mr. Bingham, pursuant to UCPR 50.16A(2), to pay any costs incurred by him which are, upon assessment, proven to be useless or unnecessary, for the following reasons: 1. Mr Bingham has not displaced the onus which is cast upon him to persuade the court not to apply the default position contemplated by UCPR 50.16A(2), AB at [26]. 2. An 'otherwise order' has not been sought by the first defendant to displace the default position under UCPR 50.16A(2). Further, the 14- day window under UCPR 36.16 in which the first defendant could have made an application to set-aside the order and replace it with an order for costs in his favour under UCPR 50. l 6A(2) has passed. 3. The notice of motion objecting to competency was filed more than one month after the proceedings were commenced. The difference in time between when the last date by which any objection as to competency was to be filed pursuant to UCPR 50.16A, and when the objection was in fact filed, was more than two weeks. 4. There was no apparent obstacle to compliance with UCPR 50.16A(l). The letter sent by the solicitors for the first defendant to the solicitors for the plaintiff on 28 June 2024, which first raised the question of competency, contains no mention of the delay, (CB 72.) 5. By the time Mr Bingham's objection as to competency was filed (2 July 2024), the proceedings had already been set down for hearing (at the directions hearing on 26 June 2024). Whilst not strictly expedited, the proceedings were progressing swiftly at the behest of the first defendant. 6. Had Mr Bingham's notice of motion challenging the competence of the appeal been filed within the time required (which was before the proceedings were listed before the court and were set down for hearing), it can be expected that the notice of motion would have been heard before the substantive appeal was listed for hearing and determined without the parties incurring the costs associated with preparing to argue the substantive dispute (as the strict time frame in UCPR 50.16A is clearly intended to achieve). 7. In the premises, unnecessary costs would have been incurred by Mr Bevan that might have been avoided had the first defendant complied with UCPR 50.16A.

Mr. Bingham's Submissions

1. At [75] her Honour in Bevan 1 recognised the circuitous nature of the continuing disputes about costs (having originated in an appeal from a costs order made by Bellew J on 7 February 2023, two years ago) and encouraged the parties to attempt to resolve the issue of costs. Both parties attempt to arrive at an agreed gross lump sum costs amount for costs have, unfortunately, been unsuccessful (Exhibit A).
2. Mr Bevan seeks to set aside the orders made on 25 October 2025, on the basis that, in making the orders on 25 October 2025, the Court misapprehended the relevant law. For the reasons that follow, Mr Bevan's motion is misconceived and ought to be dismissed.
3. The reason why Mr Bevan's application is misconceived and ought to be dismissed, is because the premise upon which it is brought is wrong. Paragraph [10] of his written submissions state, "The costs provisions in UCPR 50.16A(2) are operative in this case because the first defendant did not comply with UCPR 50.16A, and the proceedings were dismissed on the basis of incompetence where they were found to be doomed to fail because they were brought in the wrong jurisdiction: Judgment [29], [69], [74]."
4. Mr Bevan's appeal was not dismissed on the basis of incompetence. Mr Bevan's appeal was dismissed because "[a]t the outset of the hearing before [Harrison AsJ], the plaintiff's counsel advised that the plaintiff would discontinue the appeal or in the alternative, that the appeal should be dismissed"
5. That application for discontinuance was made pursuant to UCPR 12.1: Mr. Bevan reply submission dated 30 August 2024 at [4].
6. The order for costs that was made by her Honour was therefore correctly made and predicated entirely on Mr Bevan's request to discontinue the proceedings, or in the alternative, for them to be dismissed. Her Honour did not "dismiss the appeal as incompetent" to use language of r 50.16A. Her Honour dismissed the appeal because Mr Bevan requested that she do so.
7. Her Honour did not fail to address any submission made by Mr Bevan nor did her Honour misapprehend the law in determining the argument before her. There is no basis for Mr Bevan to have the orders made on 25 October 2024 set aside under UCPR 36.16. Any complaint that Mr Bevan has about the orders made on 25 October 2024, ought to have been the subject of an appeal to the Court of Appeal, and not the trial judge.
8. Her Honour's reasoning with which Mr Bevan appears to take issue is in response to Mr Bevan's submission, recorded at Judgment [39(3)] that the principles of Ex parte Lai Qin (1997) 186 CLR 622 apply, "where the plaintiff acted reasonably in commencing the proceedings and is acting reasonably in seeking to discontinue the proceedings".
9. Her Honour found in Bevan 1 at [59] that "[t]he proceedings should never have been commenced in this Court"
10. and at [63] - [64] that: "Mr. Bevan has not acted reasonably in commencing or continuing his appeal in the face of an invitation from Mr. Bingham to consent to the appeal being dismissed with no order as to costs or taking up the Calderbank offer. Paragraph [15] of Mr. Bevan's 3 September 2024 affidavit is the foundation for his excuse as to why the proceedings were brought. That cannot be accepted as the funds that were applied to the judgments were first received on 26 July 2024, two months after the commencement of these proceedings. It is disingenuous to now submit that the proceedings would not have been commenced had Mr. Bevan known the funds had been received. It is also contrary to Mr Bevan's email of 7 May 2024 (PTB p679). Mr. Bevan has instead caused Mr. Bingham to incur costs in considering and responding to the plethora of material he sought to put before the Court. A corresponding approach was taken by Mr. Bevan in the actual proceedings in which the costs order was made."
11. Her Honour concluded at paragraphs [69] - [74], under the heading "Resolution": "It is my view that Mr Bevan incorrectly commenced these proceedings in this court rather than the District Court. These proceedings were bound to fail in this Court. If the Appeal was transferred to the District Court, I consider that they would have similarly failed there. Even though Mr Bevan did not provide any reasons as to why leave should be granted, applying the test for leave to appeal (set out earlier in this judgment) leave would not be granted as the grounds of appeal had little merit. Further, both the Costs Assessor and the Review Panel gave reasons as to why Mr Bevan's submissions on the indemnity principle failed. Those reasons are uncontroversial. It is clear the appeal would have failed even if Mr Bevan had not been paid in full due to the terms of the retainer. Further, Mr Bevan unreasonably rejected a Calderbank offer dated 20 June 2024 as it represented a 20% deduction of the monies, he was liable to pay. Since the Rothman J decision and in his Appeal before me, Mr Bevan relied mostly on irrelevant documents and submissions. Further, On 24 July 2024, the Registrar directed Mr Bevan to notify Mr Bingham as to the pages of Mr Bevan's tender bundle to be relied upon in support of the grounds of appeal. Mr Bevan's reliance on voluminous and irrelevant materials had previously been the subject of criticism by Bellew J. Despite the previous criticism by Bellew J of Mr Bevan's approach to his Appeal dealing with costs and the subsequent direction of the Registrar in this current Costs Appeal, Mr Bevan did not take heed of either. As a result, Mr Bingham had to incur additional costs in preparing to meet the grounds of appeal and considering and addressing the voluminous material. I find that Mr Bevan's conduct has been unreasonable. The application for leave to Appeal and the Appeal itself were always doomed to fail. The law as to indemnity costs was well settled. Mr Bevan was unsuccessful both before the Costs Assessor and the review Panel. In the exercise of my discretion and in these circumstances I make an order that Mr. Bevan pay Mr. Bingham's costs."
12. In any event, to the extent that Mr Bevan alleges that her Honour determined the proceedings on a misapprehension of the relevant law, it is notable that Mr Bevan did not address the trial judge on any of the legal principles the subject of his written submissions. The extent of Mr Bevan's submissions as to the operation of r 50.16A are contained at paragraph 5(a) of his written submission in reply dated 30 August 2024 (recorded at Judgment [39(1)]) under the heading Mr Bevan submissions state: "That leaves the question of the costs of the appeal. The plaintiff submits that there should be no order as to the costs of the appeal, with the effect that each party bears their own costs. That outcome is appropriate in circumstances where: The first defendant was late in filing his motion objecting to the competency of the appeal pursuant to UCPR r 50.16A, which he did more that 14 days after being served with the Summons, which was filed and served on 31 May 2024, and after the first directions hearing in the proceedings at which the first defendant had pressed for the proceedings to be set down for final hearing at the earliest opportunity. It was only after the proceedings had been set down for final hearing that the first defendant filed his motion on 2 July 2024."

Resolution

1. It is my view that once Mr Bevan sought that the proceedings be discontinued or dismissed, Mr Bingham's notice of motion seeking an order that the appeal is incompetent became otiose. Further, Mr Bingham did not ever seek to move on this notice of motion. If Mr Bevan had made a clear, articulated argument in relation to UCPR 50.16A, for which Mr Bingham had the opportunity to speak to it, I would have made an otherwise order.
2. The only issue that was left for me to determine was one of costs of the appeal. I ordered costs against Mr Bevan on the basis that he did not act reasonably in commencing his appeal and for the reasons already set out at [63]-[64] and [69]-[74] of Bevan 1 which have been set out earlier in this judgment and need not be reproduced again here. In these circumstances, I dismissed Bevan's notice of motion filed 8 November 2024 with costs. I shall return to deal with the appropriate order for costs, for both the appeal proceeding and the notice of motion.

Mr Bingham's Notice of Motion.

1. The first notice of motion was filed on 1 November 2024 by Mr Bingham. He seeks, 1. Pursuant to rule 36.16 of the UCPR, the costs order made on 25 October 2024 be varied. 2. Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the Defendant is entitled to a specified gross sum in the amount of $72,852.00 in satisfaction of the costs order in his favour made on 25 October 2024. 3. The Plaintiff pay the Defendant's costs of the notices of motions dated 8 November 2024 and 1 November 2024 in the gross lump sum of $11,964.00
2. As I noted in Bevan 1 at [74]: "Despite the previous criticism by Bellew J of Mr Bevan's approach to his Appeal dealing with costs and the subsequent direction of the Registrar in this current Costs Appeal, Mr Bevan did not take heed of either. As a result, Mr Bingham had to incur additional costs in preparing to meet the grounds of appeal and considering and addressing the voluminous material. I find that Mr Bevan's conduct has been unreasonable. The application for leave to Appeal and the Appeal itself were always doomed to fail. The law as to indemnity costs was well settled. Mr bevan was unsuccessful both before the Costs Assessor and the review Panel. In the exercise of my discretion and in these circumstances I make an order that Mr. Bevan pay Mr. Bingham's costs."
3. I ordered at [75] with respect to costs, on 25 October 2024, that Mr Bevan pay Mr Bingham's costs on an ordinary basis until 20 June 2024 and on an indemnity basis thereafter.
4. I also commented at [75] "rather than having yet another round of costs assessment… the parties would be best served by attempting to settle the quantum of costs".
5. As previously stated, the parties did attempt to settle the quantum of costs of the appeal but those attempts were ultimately unsuccessful.
6. In support of his motion, Mr Bingham relies on the affidavits of Mr Patrick Ferguson ("Mr Ferguson") a costs assessor and member of the Review Panel, sworn 8 November 2024 and the affidavit of Graeme Monteith (his solicitor) sworn 6 February 2025. Mr Bevan relied upon the affidavit of Kate Chan (his solicitor) ("Ms Chan") dated 31 January 2025.
7. In relation to the lump sum award for costs, both parties relied upon Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 ("Bechara") per Beazley P; Meagher JA; Payne JA at [12] - [15]: "The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing). A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814]."
8. Mr Bingham seeks a gross lump sum of $72,852, in satisfaction of the costs order made on 25 October 2024. This is comprised of 1. Solicitors' costs and disbursements of $7,430; 2. Senior counsel's costs of $40,500; and 3. Junior counsel's costs of $25,080.

Mr. Bingham's Submissions

1. Mr Bingham submitted that this motion is brought on in an attempt to avoid the cost and time associated with a further costs assessment, review and appeal (in circumstances where the costs order made by Bellew J itself arose out of a costs assessment, review and then appeal).
2. Mr Ferguson, his expert costs assessor has had regard to the fact that part of the order is for costs on the ordinary basis up to 20 June 2024 and then from 21 June 2024 and the remainder on an indemnity basis. His solicitor Mr Monteith has discounted the solicitor's costs by 10% to the extent that they concern the time period captured by the ordinary costs order.
3. All of senior and junior counsel's costs concern the period of time captured by the indemnity costs order. Mr Ferguson has opined that none of those costs have been unreasonably incurred or are for an unreasonable amount - having regard to r 42.5(b) UCPR.
4. Mr Ferguson provided a thorough and detailed assessment of the reasonableness of the costs incurred by Mr Bingham. The conclusion reached by Mr Ferguson is consistent with the approach of the Costs Assessor and Review Panel (in the assessment and review the subject of this dispute) who, with respect to the assessment of a costs order made on the ordinary basis only, reduced Mr Monteith's fees by 14.4%, Mr Robinson SC's fees by 11.6% and made no reduction to Mr Hazan's fees.
5. Kate Chan's evidence, on the other hand, ought be given no weight in circumstances where she is forthright in acknowledging in her curriculum vitae at Annexure H to her affidavit that: "Kate is committed to maximising costs recovery for successful parties and minimising costs liability for unsuccessful parties."
6. Addressing the factors summarised in Bechara: 1. there is sufficient material before the Court to enable it to fairly determine the appropriate gross sum. Mr Ferguson is a Costs Assessor and member of the Review Panel; 2. Her Honour found Mr Bevan's conduct to have unnecessarily contributed to the costs of the proceedings. Mr. Bevan's submission at [21(a)] that the costs claim are disproportionate to the "the sum of money at stake in the proceedings" is precisely the point, especially where the Court would have no confidence that Mr Bingham will not continue to be put to further unnecessary and avoidable costs if the costs have to be again assessed (or be subject to a review and then subsequent appeal); 3. the approach taken in Mr Bevan's written submissions is not to adopt a broad brush approach; 4. insofar as the costs concern the period of time captured by the ordinary costs order, a discount has been applied. That discount is consistent with the discount applied by the Costs Assessor in the assessment the subject of the appeal.
7. Mr Bingham has relied on Mr Ferguson's report as to the gross sum costs order that should be made in relation to both notices of motion that are a subject of this judgment.
8. Mr Ferguson assessed, 1. Solicitor's fees and disbursements of $5,734; 2. Junior counsel's costs of $4,655; and 3. Expert's fees of $1,575. 4. Total: $11,964
9. Mr Bingham seeks an order that, 1. The plaintiff pay the first defendant's costs of his notice of motion dated 7 November 2024 and the plaintiff's notice of motion dated 8 November 2024 in the sum of $11,964.

Mr Bevan's submissions

1. If, contrary to his submissions, the court is satisfied that the Mr Bingham should get his costs, then Mr Bevan submitted that there is no proper basis in the circumstances for making a gross-sum costs order for the following reasons.
2. Mr Bevan relies on the affidavit of Ms. Chan dated 31 January 2025 (Chan affidavit).
3. Mr Bevan submitted the court should not make a gross-sum costs order in the sum sought by Mr. Bingham for the following reasons: 1. The claimed costs total about $73,000 (Chan affidavit at [22]) in relation to a case with a monetary value of $88,505: Judgment [24]. That is 88% of the sum of money at stake in these proceedings. Mr. Bevan's claimed costs are disproportionate to the amount of money at stake. 2. Of the $73,000 in costs incurred by Mr Bingham, $44,550 (60%) are attributable to senior counsel: (Chan affidavit at 'G'). Objection is taken to the first defendant recovering any of senior counsel's fees from the plaintiff given the sum of money at stake in these proceedings (Chan affidavit at [26]-[27]). By comparison, Mr Bevan only engaged junior counsel, Mr Robertson (admitted to the bar in 2013).
4. Of the $73,000 in costs incurred by the first defendant, $27,274 are attributable to junior counsel (Chan affidavit at 'G'). By comparison, the fees of Mr Robertson, who appeared for Mr Bevan, totaled $11,000, which is significantly less than half the figure and is more proportionate at 12% of the sum of money at stake in these proceedings (Chan affidavit at 'I').
5. The fees charged by senior and junior counsel totaled $71,824. That is more than seven times the fees incurred by Mr Bevan for his counsel. A thorough assessment of whether Mr Bingham should be permitted to recover any of senior counsel's fees from Mr Bevan, and whether the fees charged by counsel for Mr Bingham are reasonable and proportionate, is required.

Resolution

1. It is my view that this Court should make orders for the gross lump sum costs for both the appeal and the two notices of motion, namely, Mr Bingham's notice of motion dated 1 November 2024, and Mr. Bevans notice motion dated 8 November 2024.
2. These orders should be made for the reasons I set out in Bevan 1, that Mr Bevan did not take heed despite prior warnings as to his conduct and reliance on voluminous and largely irrelevant material. As to the prior criticism in Bevan 1 at [74] which has been reproduced in this current judgment, I state my reasons for finding that Mr. Bevan's conduct of the appeal had been unreasonable. It put Mr Bingham in a position where he had to incur additional costs in the appeal considering and addressing the voluminous material.
3. Further, it was and still is my view that the gross lump sum costs orders will avoid yet another round of costs assessment, appeal to the Review Panel and further court proceedings. The appeal arose from an appeal of a costs decision before Justice Bellew. That in turn arose from an appeal of a prior costs assessment process.
4. Aside from the expense to the parties, the continued process involving Mr Bevan challenging costs assessments, decisions of Review Panels and bringing appeals to this Court, puts an inordinate burden on scarce court resources.
5. As to the evidence of Ms. Chan, firstly, in comparing her costs for acting for Mr. Bevan to those incurred by Mr. Bingham and secondly in providing her opinion that it was not necessary for Mr. Bingham to brief senior counsel at the hearing of the appeal, she failed to recognise that costs were awarded on an indemnity basis to Mr Bingham from 21 June 2024. Ms. Chan's assessment is based on the wrong test, what Mr. Bevan and Ms Chan negotiate for costs is a matter between them. Hence, I prefer and accept Mr Ferguson's opinion for the reasons outlined in Mr Bingham's submissions.
6. As for Mr Bevan's proportionate costs argument, it was his own choice to rely on voluminous and largely irrelevant material in the proceedings, that choice led to an increase of Mr Bingham's quantum of costs, as he was obliged to address those irrelevant issues.
7. As to quantum of the lump sum costs order, the gross lump sum Mr. Bevan is to pay Mr. Bingham is $72,852 in satisfaction of the costs order made on 25 October 2024 ("the appeal") in Bevan 1. I also make a gross lump sum order that Mr. Bevan is to pay Mr. Bingham for the costs of $11,964 for both notices of motion dated 1 November and 8 November 2025 that were before me and the subject of this judgment.

The Court orders that 1. The plaintiff's notice of motion filed 8 November 2024 is dismissed. 2. Pursuant to the plaintiff's application under rule 36.16 of the UCPR, the costs order made on 25 October 2024 is varied. 3. Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) , the first defendant is entitled to a specified gross sum in the amount of $72,852.00 in satisfaction of the costs order made in his favour on 25 October 2024. 4. The plaintiff is to pay the defendant's costs of both notices of motions; the defendant's dated 8 November 2024 and, the plaintiff's dated 1 November 2024. 5. The costs of both notices of motion are payable by the plaintiff as a gross lump sum of $11,964.00

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