Boensch v Bingham (No 2) [2026] NSWSC 529 | Case summary | Zoe

NSWNSWSC

Boensch v Bingham (No 2)

[2026] NSWSC 529

Supreme Court of NSW|2026-05-15|Before: Richmond J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-05-15

Before

Richmond J

Catchwords

OCCUPATIONS — Legal practitioners — Solicitors — Professional negligence — Where solicitor acted for client in special leave application and ultimately appeal to the High Court — Whether solicitor negligent in failing to advise client that appeal bound to fail — No question of principle OCCUPATIONS — Legal practitioners — Retainer — Whether solicitor should have acted for the client in matters outside the retainer agreement — No question of principle ESTOPPEL — Res judicata — Merger — Finality NEGLIGENCE — Damages — Exemplary, punitive and aggravated damages JUDGMENTS AND ORDERS — Declaratory relief — Where client seeks declarations that solicitor has breached various provisions of the Legal Profession Uniform Law (NSW) — Whether client has made out the basis for seeking declaratory relief — Whether any utility in making such declaration — No question of principle

Catchwords

OCCUPATIONS — Legal practitioners — Solicitors — Professional negligence — Where solicitor acted for client in special leave application and ultimately appeal to the High Court — Whether solicitor negligent in failing to advise client that appeal bound to fail — No question of principle OCCUPATIONS — Legal practitioners — Retainer — Whether solicitor should have acted for the client in matters outside the retainer agreement — No question of principle ESTOPPEL — Res judicata — Merger — Finality NEGLIGENCE — Damages — Exemplary, punitive and aggravated damages JUDGMENTS AND ORDERS — Declaratory relief — Where client seeks declarations that solicitor has breached various provisions of the Legal Profession Uniform Law (NSW) — Whether client has made out the basis for seeking declaratory relief — Whether any utility in making such declaration — No question of principle

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Boensch v Bingham (No 2) [2026] NSWSC 529

Hearing dates: 17-20 June 2025

Date of orders: 15 May 2026

Decision date: 15 May 2026

Jurisdiction: Equity

Before: Richmond J

(1) The proceedings are dismissed. (2) The plaintiff is to pay the defendant’s costs on the ordinary basis, as agreed or assessed.

Cases Cited: Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6
Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1
Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459
Bingham v Boensch [2023] FCA 117
Boensch as trustee of the Boensch Trust v Pascoe [2015] NSWSC 1882
Boensch v Bingham [2022] NSWSC 1432
Boensch v Bingham [2023] NSWSC 1152
Boensch v Bingham (2018) 264 FCR 25; [2018] FCAFC 234
Boensch v Bingham (No 2) [2022] FedCFamC2G 47
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Boensch v Somerville Legal [2021] FCAFC 79
Boensch v Somerville Legal Pty Ltd [2019] FCA 1752
Boensch v Somerville Legal Pty Ltd [2019] FCA 590
Boensch v Somerville Legal Pty Ltd [2019] FCCA 868
Boensch v Somerville Legal Pty Ltd [2019] NSWCA 249
Boland v Yates (1999) 167 ALR 575; [1999] HCA 64
Frontier Law Group Pty Ltd v Robert Glenn Barkman [2016] NSWSC 1542
Goldsmiths v Sandilands (2002) 76 ALJR 1024; [2002] HCA 31
Hall v Foong (1995) 65 SASR 281
Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15
Heydon v NRMA Ltd (2000) 51 NSWLR 1; [2000] NSWCA 374
Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10
Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56
Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204
Linprint Pty ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508
Lucantonio v Kleinert [2011] NSWSC 753
Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
Notaras v Sly & Weigal [2005] NSWCA 275; (2005) 12 BPR 23,765
NRMA Ltd v Morgan [1999] NSWSC 407
Official Trustee in Bankruptcy v Ritchie (1988) 12 NSWLR 162
Pillnow v Armstrong [2000] NSWCA 245
Shoal Bay Beach Constructions No 1 Pty Ltd v Mark Hickey & the persons listed in Schedule A to the Notice of Appeal trading as Sparke Helmore [2023] NSWCA 23
Somerville Legal Pty Ltd v Boensch [2019] NSWSC 267
Somerville Legal v Boensch [2019] FCCA 3637
State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Willi v Banks [2018] QSC 284
Yates Property Corporation v Boland (1998) 85 FCR 84

In these proceedings the plaintiff, Mr Franz Boensch, brings a number of claims against his former solicitor, Mr John David Bingham (the defendant), regarding their dealings in relation to three sets of proceedings which spanned a period in 2019 when the defendant acted as the plaintiff’s solicitor and subsequent proceedings in which the defendant sought to recover his fees for his services during that period. In broad terms, the four proceedings were:
Proceedings brought by the plaintiff against Mr Scott Pascoe, his trustee-in-bankruptcy, seeking compensation under s 74P(1) of the Real Property Act 1900 (NSW) (Compensation Proceedings) due to Mr Pascoe having lodged a caveat in respect of a property in Rydalmere owned by the plaintiff as trustee of a trust for the benefit of his children called the Boensch Trust (Rydalmere property);
Proceedings in relation to the failed attempt to set aside a bankruptcy notice issued by Somerville Legal, who had acted for the plaintiff at first instance in the Compensation Proceedings, in respect of unpaid fees charged by Somerville Legal for their services in that matter (Bankruptcy Proceedings);
Proceedings brought by Somerville Legal against the plaintiff to extend the operation of a caveat it had lodged in respect of a mortgage granted by the plaintiff over the Rydalmere property to Somerville Legal as security for the legal costs incurred in respect of the Compensation Proceedings (Somerville Caveat Proceedings); and
Proceedings in relation to a costs assessment sought by the defendant in the amount of $391,555.44 (incl. GST) for his costs and disbursements arising from the High Court appeal in the Compensation Proceedings (Costs Proceedings).
In essence the plaintiff claims that the defendant’s conduct as his solicitor in 2019 breached the terms of his retainer, his common law and contractual duty of care and provisions of the Legal Profession Uniform Law (NSW) concerning his costs disclosure to the plaintiff and his skills and performance.
The original Amended Statement of Claim (ASOC) filed by the plaintiff (who is self-represented) in this matter was defective: Boensch v Bingham [2023] NSWSC 1152 (J).
Following that decision, on 18 February 2024 the plaintiff filed a Further Amended Statement of Claim and then at the commencement of the hearing on 17 June 2025 he filed in court a Second Further Amended Statement of Claim (2FASOC), without objection from the defendant, which introduced the sixth claim referred to below.

There are essentially six claims made in the 2FASOC against the defendant which in summary are as follows:
The first claim is pleaded at [12]-[49] of the 2FASOC and relates to the Compensation Proceedings. The plaintiff’s case is he should have been advised not to press an application for special leave to appeal, or an appeal, to the High Court on the basis that both were bound to or highly likely to fail, and by failing to do so, the defendant breached his contractual duty of care in the retainer between them, as well as that at common law.
The second claim is pleaded at [50]-[69] of the 2FASOC and relates to the Bankruptcy Proceedings. The plaintiff’s case is that the defendant should have acted more promptly to set aside a bankruptcy notice which had been served on the plaintiff, and failure to do so caused him loss and damage.
The third claim is pleaded at [70]-[81] of the 2FASOC and relates to the Somerville Caveat Proceedings. The plaintiff contends that the defendant informed the Court that various parts of a c****ross-claim were not pressed by the plaintiff, without instructions and without having given advice.
The fourth claim is pleaded at [82]-[86] of the 2FASOC and relates to the Costs Proceedings. The plaintiff contends that the defendant (in connection with the first claim) sought to have his costs assessed at an amount which was in excess of a cap in the costs agreement and therefore committed a breach of his retainer agreement.
The fifth claim is pleaded at [87]-[103] of the 2FASOC. This effectively is a continuation of the fourth claim and seeks exemplary damages.
The sixth claim was introduced late (at the beginning of the hearing) and is pleaded at [104]-[106] of the 2FASOC. This is a claim that the defendant should be denied any remuneration in respect of the services he performed for the plaintiff in 2019 due to his various breaches of duty to the plaintiff.
The relief sought in the 2FASOC comprises: (1) damages; (2) a declaration that the defendant breached his duty of care, both in contract and at common law, and the retainer agreement, as pleaded in the 2FASOC; (3) a declaration that the defendant breached ss 174-175 of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law) concerning his costs disclosure to the plaintiff, as pleaded in the 2FASOC; (4) a declaration that the defendant breached ss 172, 174 and 178 of the Uniform Law concerning his skills and performance; (5) exemplary damages; (6) costs; and (7) interest.

The following factual chronology which underlies the claims in the 2FASOC is largely drawn from the summary in the J at [5]-[43] and is not in dispute.
On 23 August 2005, a sequestration order was made in respect of the plaintiff's estate following service of a bankruptcy notice on the plaintiff (1****st Bankruptcy Notice) as a result of a judgment against him obtained in the Local Court in 2003. Mr Pascoe was appointed as the trustee in bankruptcy.
On 25 August 2005, Mr Pascoe lodged a caveat in respect of the Rydalmere property. Ultimately the caveat lapsed in September 2009. All the disputes to which the 2FASOC relates arise out of the proceedings which the plaintiff then brought in this Court seeking compensation from Mr Pascoe pursuant to s 74P of the Real Property Act on the basis that the caveat had been lodged (and refused to be withdrawn) without reasonable cause. These are the Compensation Proceedings referred to earlier. Separate questions in respect of whether the plaintiff was entitled to compensation were heard and determined by Darke J. Somerville Legal acted for the plaintiff, and instructed Mr Bevan of counsel who appeared for the plaintiff with Ms Sethi of counsel.
On 10 December 2015, Darke J answered the separate questions contrary to the plaintiff and dismissed the proceedings with costs: Boensch as trustee of the Boensch Trust v Pascoe [2015] NSWSC 1882.
A dispute arose between the plaintiff and Somerville Legal regarding the costs charged by the latter for acting in the proceedings before Darke J. Somerville Legal lodged an application for assessment of its costs and following the issue by a costs assessor of two certificates of determination the plaintiff lodged an application for review by the costs review panel. This was determined in favour of Somerville Legal and led to Somerville Legal obtaining two judgments against the plaintiff in the Local Court for $91,212.35 and $4,061.75, the latter being for the costs of those assessments, plus interest accrued thereon.
On 8 February 2017, the plaintiff filed a summons in the District Court appealing from the decisions of the costs review panel. On 14 December 2018, following repeated failures by the plaintiff to comply with court orders for the service of evidence, Wilson DCJ ordered that the appeal summons be struck out.
On 27 February 2017, Somerville Legal commenced proceedings in this court numbered 2017/63611 against the plaintiff seeking to extend the operation of a caveat which had been lodged by Somerville Legal over the Rydalmere property. These are the Somerville Caveat Proceedings referred to earlier. In May 2017 the plaintiff filed a cross-claim in those proceedings (referred to below).
On 20 December 2018, the plaintiff’s appeal from the decision of Darke J to the Full Court of the Federal Court of Australia was dismissed with costs: Boensch (As Trustee of Boensch Trust) v Pascoe (2018) 264 FCR 25; [2018] FCAFC 234 (1****st FFC Decision). The plaintiff was represented on the appeal by Mr Bevan instructed by Madison Marcus Law Firm.
In early 2019, there were discussions between the plaintiff, the defendant, and Mr Bevan in respect of an application for special leave to appeal from the decision of the Full Court to the High Court of Australia, and the terms on which the defendant and Mr Bevan would act, including a proposed mortgage over the Rydalmere property to secure payment of their fees.
An aspect of these discussions which has led to subsequent litigation between the plaintiff and the defendant, and other litigation between Mr Bevan and the defendant, was the terms of the costs agreements they entered into — in particular whether the costs agreement between the plaintiff and the defendant included a ‘cap’ on the fees payable by the plaintiff of $100,000, and whether the defendant was entitled to receive payment prior to 1 March 2024.
Ultimately, on 12 March 2019, the plaintiff entered into a mortgage of the Rydalmere property in favour of the defendant which included an Annexure marked ‘A’ setting out the terms on which the plaintiff would be liable to the defendant for legal costs incurred by the plaintiff as the plaintiff of the defendant (Mortgage).
In the meantime, on 7 February 2019, a bankruptcy notice (2****nd Bankruptcy Notice) was issued by the Official Receiver at the request of Somerville Legal (which had acted for the plaintiff in the proceedings before Darke J) and was served on the plaintiff that day. The 2nd Bankruptcy Notice claimed the total of the amounts due to Somerville Legal under the two judgments against the plaintiff referred to above.
On 4 March 2019, the plaintiff brought proceedings in the Federal Circuit Court of Australia (Circuit Court) to have the 2nd Bankruptcy Notice set aside. These are the Bankruptcy Proceedings referred to earlier. On 4 April 2019 Judge Street dismissed this application with costs on the basis that the application was not brought within the 21-day period for compliance with the bankruptcy notice and the Circuit Court had no power to extend time for compliance as an act of bankruptcy had occurred: Boensch v Somerville Legal Pty Ltd [2019] FCCA 868 (1****st Circuit Court decision). The defendant acted for the plaintiff in this application.
On 13 March 2019, Henry J made final orders in the Somerville Caveat Proceedings relating to the caveat lodged by Somerville Legal over the Rydalmere property: Somerville Legal Pty Ltd v Boensch [2019] NSWSC 267 (Somerville Caveat decision). The final orders made by Henry J did not deal with the substantive claims made in the proceedings (including the plaintiff’s cross-claim) which had been resolved by the parties without a hearing on the merits: Somerville Legal Pty Ltd v Boensch [2019] NSWSC 267 at [8]-[11]. The defendant said to the plaintiff in an email sent on 12 November 2019 that the plaintiff’s cross-claim was not pursued because ‘evidence was not put on to support the cross claim before I was involved’.
On 20 March 2019, after the plaintiff’s original appeal summons from the decisions of the costs review panel referred to above was struck out, he filed a notice of motion in the District Court seeking leave to file an amended appeal summons. On 10 July 2019, Balla ADCJ declined to grant that leave. An application for judicial review was brought by the plaintiff against that decision in the Court of Appeal and was dismissed with costs: Boensch v Somerville Legal Pty Ltd [2019] NSWCA 249. The defendant acted for the plaintiff in both of these proceedings.
On 5 April 2019, Somerville Legal filed a creditor's petition in the Circuit Court based on the plaintiff’s failure to comply with the 2nd Bankruptcy Notice.
On 11 April 2019, Robertson J dismissed an interlocutory application that the plaintiff had filed in the Federal Court on 9 April 2019 in relation to the 1st Circuit Court decision seeking urgent orders (in the nature of extending time for compliance with the 2nd Bankruptcy Notice): Boensch v Somerville Legal Pty Ltd [2019] FCA 590. An appeal from the 1st Circuit Court decision was subsequently brought in the Federal Court on 26 April 2019 and dismissed with costs by Abraham J on 25 October 2019: Boensch v Somerville Legal Pty Ltd [2019] FCA 1752.
On 21 June 2019, the High Court granted special leave to appeal to the plaintiff against the Full Court’s decision in respect of the dispute with Mr Pascoe.
On 11 October 2019, the High Court heard the appeal. Mr Bevan appeared with Mr Wells of counsel for the plaintiff, instructed by the defendant. On 13 December 2019, the High Court dismissed the plaintiff's appeal with costs: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 (High Court judgment).
In the meantime, on 6 December 2019, the defendant had issued an invoice to the plaintiff in respect of the High Court proceedings for $391,555.44 (incl. GST), which included $301,636.72 (incl. GST) for Mr Bevan's fees.
On 12 December 2019, Somerville Legal’s creditor’s petition filed on 5 April 2019 was heard, following which the Circuit Court made a sequestration order against the plaintiff's estate based on the 2nd Bankruptcy Notice: Somerville Legal v Boensch [2019] FCCA 3637 (2****nd Circuit Court decision). By this time, the defendant had ceased to act for the plaintiff and he appeared in person at the hearing.
On 17 February 2020, the trustees of the plaintiff’s bankrupt estate appointed under the 2nd Circuit Court decision issued a report to creditors which disclosed that the defendant had lodged a total claim for his costs and disbursements owing by the plaintiff of $550,355.46 of which $100,000 was claimed to be secured by the Mortgage. It seems that the difference between this amount and the amount of the defendant’s invoice dated 6 December 2019 is the fees for the other work the defendant performed for the plaintiff during his retainer.
On 15 October 2020, the defendant lodged an application for assessment of his costs in relation to the High Court proceedings claimed in the 6 December 2019 invoice. Also around that date, Mr Bevan lodged an application for assessment of his costs (with the defendant being the costs respondent) in respect of the High Court proceedings.
On 26 November 2020, the plaintiff submitted a letter to the costs assessor setting out his objections to the defendant's application in respect of the High Court proceedings.
On 9 December 2020, the costs assessor made a decision about the costs assessment in respect of the High Court proceedings and issued a costs certificate in the amount of $372,674.84 (incl. GST), comprising the defendant’s costs ($358,234.71), interest ($10,524.58) and a filing fee ($3,915.55). The costs certificate was not provided to the plaintiff until it was emailed to him on 12 May 2021.
On 26 May 2021, the Full Court of the Federal Court allowed the appeal from the 2nd Circuit Court decision in respect of the sequestration order made on 12 December 2019 essentially on the basis that the primary judge had failed to afford procedural fairness to the plaintiff: Boensch v Somerville Legal [2021] FCAFC 79 (2****nd FFC Decision). The Full Court remitted the creditor’s petition filed by Somerville Legal to the Circuit Court, differently constituted, for hearing. The plaintiff sought special leave to appeal from this decision to remit the creditor’s petition to the Circuit Court which was refused on 7 April 2022. In Somerville Legal’s response to the application, it stated that it had offered to the plaintiff to withdraw the creditor’s petition because, given his financial circumstances, there was no utility in pursuing it.
On 4 June 2021, the defendant lodged the costs certificate (in respect of the High Court proceedings) for registration as a judgment with the District Court, and judgment in the sum of $372,674.84 against the plaintiff was entered that day.
On 23 June 2021, the defendant applied for a bankruptcy notice to issue based on the District Court judgment of 4 June 2021 (3****rd Bankruptcy Notice), and on 6 September 2021, the 3rd Bankruptcy Notice was served on the plaintiff.
On 22 September 2021, the plaintiff applied to the Circuit Court to set aside the 3rd Bankruptcy Notice.
On 23 November 2021, the plaintiff filed an application to review the decision of the costs assessor dated 9 December 2020 and sought an extension of time in which to do so. On 3 December 2021, the Manager, Costs Assessment, refused the extension of time sought to challenge the decision of the costs assessor.
On 24 January 2022, the plaintiff made an application by a summons filed in this Court, to review the decision of the Manager, Costs Assessment of 3 December 2021. These are the Costs Proceedings referred to earlier.
On 4 February 2022 Judge Manousaridis set aside the 3rd Bankruptcy Notice: Boensch v Bingham (No 2) [2022] FedCFamC2G 47 (3****rd Circuit Court decision). In broad terms, Judge Manousaridis found that that the costs agreement entered into by the plaintiff with the defendant in relation to the High Court proceedings was the agreement constituted by the Mortgage under which the defendant’s fees were subject to a ‘cap’ of $100,000, and that any liability he had could not be enforced until 1 March 2024, with the result that there was no debt underlying the judgment in respect of the costs certificate.
On 21 October 2022, Chen J granted the plaintiff the extension of time sought and set aside the decision of the Manager, Costs Assessment, and directed that the matter be referred to a review panel: see Boensch v Bingham [2022] NSWSC 1432 (Costs decision).
On 22 February 2023, Abraham J dismissed the appeal from the 3rd Circuit Court decision expressing agreement with the analysis of Judge Manousaridis above: Bingham v Boensch [2023] FCA 117.
On 8 March 2023 the review panel sent a letter to the plaintiff and the defendant which set aside the Costs Assessor's determination and issued a ‘$ Nil certificate as to costs’. This was on the basis of the 3rd Circuit Court decision that at the time the application was filed Mr Boensch had no liability to Mr Bingham on account of the High Court costs and the Costs Assessor had no authority to undertake any costs assessment of those costs.

As noted earlier the Compensation Proceedings involved a claim brought by the plaintiff for compensation under s 74P of the Real Property Act on the basis that Mr Pascoe’s caveat had been lodged (and refused to be withdrawn) without reasonable cause.
At first instance, Darke J dismissed the plaintiff’s claim on essentially two grounds. The first ground for his Honour’s decision was that on the authority of Official Trustee in Bankruptcy v Ritchie (1988) 12 NSWLR 162 and Lewis v Condon (2013) 85 NSWLR 99, even if the plaintiff merely holds a bare legal interest in property, upon his bankruptcy that interest will nevertheless vest in Mr Pascoe and confers upon the latter a caveatable interest in the property, and that Mr Pascoe’s description of the Pascoe caveat was an adequate description capable of sustaining the caveat. As such, under the first limb of the test laid down in Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459, the plaintiff had not discharged his onus of proving that Mr Pascoe did not have a caveatable interest in the property.
The second ground was that even if he was wrong on the first basis, Mr Pascoe nevertheless failed to discharge his onus under the second-limb of the test in Beca Developments that Mr Pascoe lacked ‘an honest belief, based on reasonable grounds, that he had [a caveatable interest]’. His Honour found that Mr Pascoe did have an honest belief based on reasonable grounds that he had a caveatable interest and therefore reasonable cause to lodge and maintain that caveat within the meaning of s 74P of the Real Property Act. Importantly for present purposes, a matter which was relevant to his Honour’s conclusion in respect of this second ground was a finding that Mr Pascoe had reasonable grounds to believe that Mr Boensch might have had a right of indemnity out of the Rydalmere property as at the relevant time which was capable of supporting that caveat.
In the 1st FFC Decision, the Full Federal Court (Besanko, McKerracher and Gleeson JJ) agreed with Darke J in respect of both grounds of his Honour’s decision and dismissed the appeal. In respect of the first ground, their Honours considered that although the matter was not free from difficulty, they (like Darke J) should follow Ritchie and Lewis v Condon in holding that a ‘bare legal interest’ is capable of vesting in a bankrupt’s trustee-in-bankruptcy upon the former’s bankruptcy. Their Honours were otherwise in agreement with Darke J as to the remainder of his Honour’s reasons.
Although special leave was granted, the High Court nevertheless unanimously dismissed the appeal from the Full Federal Court judgment. The High Court held that the proposition of law deriving from Ritchie and Lewis v Condon above (and which were followed in the lower courts) was ‘unduly wide’, and that the correct position is that upon a sequestration order, the property of a bankrupt will pass to his or her trustee-in-bankruptcy only to the extent that the bankrupt has a valid beneficial interest in the property: High Court judgment at [4]-[6], [93]. Thus, if the plaintiff had only a ‘bare legal title’ to the Rydalmere property and no valid beneficial interest in the property, the legal title would not have passed to Mr Pascoe.
However, in order to demonstrate this, the plaintiff had to prove that he had an obligation to account to the Boensch Trust which would negate a right of indemnity accrued to him by virtue of the expenditures he incurred as trustee of that trust, which the High Court found he failed to do: High Court Judgment at [9]-[12], [96]-[102]. Importantly, another basis upon the High Court’s dismissal of the appeal was that, under the test in Beca Developments (which their Honours refused to disturb), Mr Boensch bore the onus in proving that Mr Pascoe lacked at least an honest belief, based on reasonable grounds, that he had a caveatable interest in the Rydalmere property, which he failed to discharge on the bases identified by Darke J and upheld by the Full Federal Court.

When the defendant was engaged by the plaintiff to act for him in early February 2019 in respect of the special leave application, there were prolonged negotiations between the plaintiff and both Mr Bevan and the defendant as to the terms of their respective costs agreements, including the taking of security over the Rydalmere property. Ultimately, the Mortgage was entered into by the plaintiff in favour of the defendant on 12 March 2019. Its operation was a matter of considerable controversy between the parties and has been the subject of a number of judgments, but for present purposes the following terms are noted:
The principal sum for legal costs incurred by the plaintiff secured by the Mortgage shall be limited to $100,000 (cl 6);
The defendant could enforce that liability only to the extent that it could be satisfied out of the Rydalmere property (cl 4); and
The defendant could not enforce that mortgage until 1 March 2024 (cl 2).
The defendant lodged a caveat over the Rydalmere property on 21 June 2019 claiming an interest pursuant to the Retainer Agreement (Bingham caveat).
In October 2020, the defendant lodged an application for his costs arising from the High Court appeal (initial costs assessment) to be assessed. This was ultimately assessed to the tune of $372,674.84 (incl. GST), which was registered as a judgment by the District Court on 4 June 2021. The defendant subsequently issued and served the 3rd Bankruptcy Notice on the plaintiff on the basis of this District Court judgment on 23 June and 6 September 2021 respectively.
A key issue in the Costs Proceedings was whether there is a provision within the costs agreement which capped the amount of fees chargeable by the defendant in respect of the High Court appeal in the Compensation Proceedings. This was also the basis upon which the plaintiff challenged the initial costs assessment (as well as the resultant 3rd Bankruptcy Notice) referred to in the preceding paragraph. In addition, there was also litigation surrounding the enforceability of the Bingham caveat in the form of application to the Court by the defendant in late October 2021 seeking declarations as to its validity, following the service of a lapsing notice by the plaintiff on the defendant at around the same time. The plaintiff, predictably, filed a cross-claim seeking various relief, the most important of which was the removal of the caveat from title, largely on the same grounds as that which he relied on in challenging the initial costs assessment and the 3rd Bankruptcy Notice.
To recapitulate, the state of play by the end of 2021 was that there were three proceedings on foot in relation to the Costs Proceedings: (a) the challenge regarding the 3rd Bankruptcy Notice; (b) the challenge regarding the initial costs assessment; and (c) the defendant’s application in relation to the Bingham caveat.
Due to of procedural reasons, the challenge against the 3rd Bankruptcy Notice ended up being decided first. On 4 February 2022, Judge Manousaridis delivered the 3rd Circuit Court decision that the only costs agreement which existed between the plaintiff and the defendant was the Retainer Agreement (which was the same as the Mortgage) rather than any other purported costs disclosure, that the Mortgage was indeed capped at $100,000, and further that any liability outstanding on the part of the plaintiff was not enforceable until 1 March 2024. As a result, there was no liability underlying the relevant costs certificate and his Honour therefore set the bankruptcy notice aside. As noted above, this decision was upheld on appeal by Abraham J in the Federal Court on 22 February 2023.
In between these two decisions, Chen J issued his Costs decision, following which, on 8 March 2023, the review panel revoked the initial costs assessment and issued a $Nil certificate as to costs.
Finally, in September 2023, Peden J delivered her decision with respect to the defendant’s application for declarations regarding the Bingham caveat: Bingham v Boensch [2023] NSWSC 1187 (Caveat judgment). In that judgment, her Honour accepted at [28] that the holding of the 3rd Circuit Court decision (and the resultant appeal decision by Abraham J) was that the Mortgage was the binding costs agreement between the parties, but concluded at [31] that were it to be void (due to non-compliance with the Uniform Law) the defendant would not be barred from the opportunity to claim his fees on a quantum meruit basis. Her Honour further found that the terms of the Mortgage were such that although the quantum of the security is presently unknown the defendant was nevertheless entitled to enforce the Mortgage after 1 March 2024. For that reason, the Bingham caveat, which was based on the Mortgage, was validly lodged and her Honour made the declarations sought by Mr Bingham. Her Honour also rejected the argument put by the plaintiff in his cross-claim that the conduct of the defendant in suing the plaintiff for more than $100,000 contrary to the mortgage cap, seeking payment before the obligation crystallized on 1 March 2024 and seeking payment other than by way of sale proceeds of the Rydalmere property, constituted breaches of the Mortgage of the kind which would have rendered the Mortgage void or terminated: at [35].
An appeal from the Caveat judgment by the plaintiff was dismissed by the Court of Appeal in 2024: Boensch v Bingham [2024] NSWCA 116 (Caveat appeal judgment). The Caveat judgment is said by the defendant to create a res judicata estoppel in relation to the fourth claim in these proceedings.

On 29 January 2019, Mr Bevan telephoned the defendant about the application for special leave and explained to him in general terms that he had been acting for the plaintiff in the proceedings against Mr Pascoe in the Supreme Court, an appeal to the Full Federal Court, and now an application for special leave to the High Court. Mr Bevan asked the defendant if he was willing to act for the plaintiff on the special leave application as the previous solicitor who acted on the Full Federal Court appeal had ceased to act, and also told that him there was a lot of time pressure to prepare the necessary material for the special leave application.
On the following day the plaintiff sent an email to Mr Bevan confirming that he was happy to act for the plaintiff ‘in the forthcoming application for leave to appeal to the High Court and also the subsequent appeal if leave is granted’.
On 31 January 2019 at 11.30am, Mr Bevan then forwarded the defendant’s email to the plaintiff, confirming he (Mr Bevan) recommended the defendant to the plaintiff ‘to assume carriage of the High Court proceedings’.
On 5 February 2019 at 2pm, in a conference in Mr Bevan’s chambers attended by the defendant and the plaintiff. As recorded in the defendant’s file note of the conference, Mr Bevan advised that ‘chances of getting special leave aren’t high’. However, the plaintiff’s evidence is that Mr Bevan also advised that if special leave was granted, the prospects of success in the appeal proceedings were ‘good’ (T84.27). It was agreed that Mr Bevan would prepare all the necessary documentation for the application for special leave. There was also a discussion about the fee arrangements for the matter including that the fees of both the defendant and Mr Bevan would be secured by a mortgage over the Rydalmere property.
On 5 February 2019 at 5.02pm, Mr Bevan sent an email to the defendant and the plaintiff attaching his proposed costs agreement. Mr Bevan and the plaintiff exchanged emails on the following day regarding the proposed costs agreement, and in one of those emails Mr Bevan stated that filing the application for special leave was a priority as, if it was not filed, Mr Pascoe would proceed to tax his costs, and that would send the plaintiff bankrupt.
On 6 February 2019 at 10.32am, Mr Bevan sent an email to the defendant, copied to the plaintiff, attaching a revised costs agreement, and in the context of a suggestion that another junior counsel be retained to assist him, said “I only need his help in the event we secure a grant of special leave (which is a 7%-8% chance statistically, as I have already explained)”.
On Thursday 7 February 2019 at 9am, the defendant, the plaintiff and Mr Bevan met at Mr Bevan’s chambers to collect the documentation for the application for special leave (which was to be filed that day), and there was a further discussion about the fee arrangements. Following this meeting the plaintiff and the defendant attended the High Court registry to file the special leave application and as they were leaving the plaintiff told the defendant that he (the plaintiff) would be attending Court again the following week, as he was involved in a dispute against Somerville Legal concerning their fees in acting for him in the proceedings against Mr Pascoe heard by Darke J. The defendant had not previously been aware that the plaintiff was involved in other litigation.
In the 3rd Circuit Court Decision at [10] Judge Manousaridis states that the defendant provided to the plaintiff on or shortly after 7 February 2019 with a document dated 7 February 2019 and entitled ‘Costs Disclosure & Costs Agreement’ (7 February engagement letter). I have not been able to find in the Court Book a document with that title bearing the date 7 February 2019 (and the parties did not identify such a document). Judge Manousaridis describes its terms in the 3rd Circuit Court Decision at [15]-[17] including that the estimate of the defendant’s fees ‘covered three anticipated activities - an application for special leave ($7,000), resisting a potential application for security for costs ($5,500), and the appeal ($20,000)’. This is different from the updated ‘costs disclosure & costs agreement’ which the defendant sent to the plaintiff on 25 February 2019 (see below) which also included the Somerville Caveat Proceedings in the Schedule.
As noted earlier, during the course of 7 February 2019 the 2nd Bankruptcy Notice was served on the plaintiff. It is not clear when the plaintiff informed the defendant of this, but it is likely that it was on Monday 11 February 2019, in light of the email sent by the defendant on 18 February 2019 set out below.
On Friday 8 February 2019 at 9.24am, the defendant sent an email to the plaintiff attaching documents relating to a mortgage to be granted by the plaintiff to the defendant over the Rydalmere property to secure the fee arrangements and recommended that the plaintiff speak to another solicitor to get independent legal advice. Later that day and on the following day the plaintiff sent a number of voluminous emails to the defendant attaching documents concerning the Somerville Caveat proceedings including the plaintiff’s Cross-Claim in those proceedings*.* The attached documents included letters from Somerville Legal to the plaintiff informing him that one senior counsel and one junior counsel had, prior to Mr Bevan being briefed, separately advised that a claim for compensation against Mr Pascoe was unlikely to succeed.
On 11 February 2019, the defendant appeared for the plaintiff before Henry J, in respect of the Somerville Caveat Proceedings.
On 12 February 2019 at 12.48pm, Mr Bevan sent an email to the plaintiff (copying the defendant), suggesting that the plaintiff should settle his dispute with Somerville Legal regarding their outstanding fees and adding:

This email refers to a letter sent by the defendant to Somerville Legal on 18 February 2019 which referred to a proposed Amended Defence by the plaintiff which raised an allegation that Somerville Legal’s claim was an abuse of process. The letter went on to refer to the 2nd Bankruptcy Notice and asserted this constituted an election to sue on the costs agreements, which was inconsistent with the pleading in the Somerville Proceedings, and therefore that constituted a further abuse of process. The letter foreshadowed that leave would be sought from Henry J on 25 February 2019 to incorporate the further abuse of process in the proposed amended defence.
On 19 February 2019 at 4.03pm, the plaintiff sent an email to the defendant, replying to the 18 February 2019 email of 4.54pm. He wondered if the point raised would have applied to the two earlier bankruptcy notices which had been issued to him by Somerville Legal for the same debt (both of which had been set aside after the plaintiff made the necessary application as a self-represented litigant), and asked (i) if that would have an impact on the Somerville mortgage but not on the 2nd Bankruptcy Notice, (ii) if there should be a motion to stay prosecution of the local court judgment, and (iii) if an extension of time on the 2nd Bankruptcy Notice based on the stay would still be necessary. The defendant responded by email later that day indicating that he had set out the intended approach, could not speak to previous actions, would prepare an affidavit for the Somerville Caveat Proceedings and would appear at the directions before Henry J in the Somerville Caveat Proceedings on 25 February 2019, which he did.
On Monday 25 February 2019 at 6.55pm, the defendant sent an email to the plaintiff, reporting on the directions hearing before Henry J earlier that day. There was a tight timetable set for the amended defence, affidavits (including in reply), submissions, and a hearing on 13 March 2019. The order extending the time for the plaintiff’s affidavit evidence was subject to a guillotine order, reflecting the fact that the plaintiff was in breach of previous orders for the filing of his evidence. The defendant’s email emphasised that the costs agreement/mortgage had not been finalised. It stated relevantly (emphasis added):

There followed an exchange of emails between the defendant, Mr Bevan and the plaintiff, including one email from Mr Bevan to the plaintiff (with a copy to the defendant) on 15 March at 9.03am stating that the costs assessor was wrong and this was an error of law which the District Court has power to correct. In that email he also asked the plaintiff to send all the ‘paperwork’ in relation to the Circuit Court bankruptcy matter to the defendant ‘to enable [the defendant] to get the bankruptcy notice set aside’.
On 15 March 2019 at 1.57pm the defendant sent an email to the Circuit Court Registry stating that he was instructed by the plaintiff and would be in a position to respond to the email of 14 March 2019 after obtaining further information from his client, the plaintiff. As explained below, it was not until this time (or the previous day) that the defendant accepted instructions from the plaintiff to act for him in relation to the 2nd Bankruptcy Notice.
As noted earlier, on 4 April 2019, the defendant appeared for the defendant at the hearing before Judge Street of the application to set aside the 2nd Bankruptcy Notice, which was dismissed. On the following day Somerville Legal filed a creditor’s petition, and the plaintiff brought an application on 9 April 2019 in the Federal Court, seeking a stay of the proceedings pending an appeal from Judge Street’s decision in the Bankruptcy Proceedings, which was dismissed by Robertson J on 11 April 2019. The defendant acted for the plaintiff on that application.
On 24 April 2019 the defendant sent an email to the plaintiff headed ‘you & Somerville Legal – re bankruptcy’. This email attached a document entitled ‘Costs Disclosure & Costs Agreement’ (24 April engagement letter) and noted that the defendant had attended to filing documents with both the Federal Court and the Circuit Court and that Somerville Legal’s creditor’s petition was due to be heard on 16 May 2019. Relevantly, the document stated under the heading ‘scope of work’ that the plaintiff had instructed the defendant to provide ‘the legal services set out in the schedule below’, that the defendants professional fees be charged at an hourly rate of $360 (plus GST), that the estimate for the professional fees was $17,000 (excluding GST). The Schedule was in the following form:

On 21 June 2019, the oral argument of the application for special leave to appeal from the Full Court’s decision in the Pascoe case took place. In particular:
Nettle J initially asked questions about whether, if there was a right to indemnity, that would have been a basis sufficient to lodge the caveat, which was accepted by Mr Bevan (but that did not grapple with the underlying evidence).
Gordon J asked if there was a right of indemnity. Mr Bevan disputed that there was, and he referred to evidence regarding the “mutually beneficial arrangement” (which is addressed in the High Court judgment at [98]-[99]).
Mr Bevan then referred their Honours to the passage in the 1st FFC Decision concerning the Full Federal Court’s approach of not resolving the right of indemnity point (at [155]-[156] of the judgment).
Mr Bevan then referred to some of the evidence about the right of indemnity, including that it was de minimis according to Mr Pascoe.
Mr Priestley SC, who appeared for Mr Pascoe, identified that the right of indemnity was still an issue.
Nettle J said “We could not resolve these questions of fact, could we”, in response to Mr Priestley identifying that payments had been made.
Mr Priestley referred to the “very meagre evidence” that was before the court, and the plaintiff relying on the “mutually beneficial arrangement” and that the plaintiff bore the onus.
During reply submissions, Nettle J asked Mr Bevan what he would say if Mr Priestley filed a Notice of Contention to argue that there was a right of indemnity.
Mr Bevan said that he would meet that on the evidence, on the merits, and also on the basis put to the Full Court as to why it was not the real issue at the trial before Darke J.
Gordon J then raised the possibility that the High Court would have to undertake the fact-finding exercise. Nettle J pointed out this was so unless Mr Bevan was successful, as he was before the Full Court, in saying that the contention should not be entertained. Special leave was granted immediately.
On 2 October 2019, shortly before the hearing in the High Court, the defendant sent to the plaintiff a further ‘Costs Disclosure & Costs Agreement’ in relation to the High Court proceedings. It applied to the ‘legal services set out in the schedule below’, stated that the defendants hourly rate was the same as in his previous engagement letters, included an estimate for the work of $358,700 (being 35,000 for the defendant’s fees, $315,000 for the barristers’ fees, and $8,700 for disbursements) and included a schedule as follows:

It is necessary to deal with a preliminary issue relevant to each of the claims which is what was the scope of the defendant’s retainer. The plaintiff pleads that the parties entered into a retainer agreement on 12 March 2019 (which is the date when the Mortgage was entered into) but does not identify what it comprised: 2FASOC [4]-[5]. The defendant pleads that the retainer agreement took the form of the Mortgage and in addition the ‘Costs Disclosure and Costs Agreement’: Defence [4(b)]. I take that to be a reference to the 25 February engagement letter, which was the most recent Costs Disclosure and Costs Agreement at the time the Mortgage was entered into, and had been attached to the email sent by the defendant to the plaintiff on 8 March 2019 with the final form of the Mortgage.
The 25 February engagement letter provided, as is common practice, that the offer contained in it could be accepted by either ‘(a) by signing and returning this document to us, or (b) continuing to instruct us’. It was not accepted by the first method, but I consider that it was accepted by the second method once the Mortgage was signed but, of course, subject to the terms of the Mortgage (in particular the provisions of the Mortgage concerning costs as found in the 3rd Circuit Court decision). Importantly, nothing in the Mortgage addresses the scope of the work to be undertaken by the defendant, and I find that the schedule to the 25 February engagement letter sets out the terms of the defendant’s retainer in relation to the scope of the work to be performed at the time the Mortgage was entered into.
The defendant’s retainer was expanded by the 24 April engagement letter, which was accepted by the plaintiff by the second method referred to in the previous paragraph, but again subject to the terms of the Mortgage in relation to costs. The Costs Disclosure and Costs Agreement sent by the defendant to the plaintiff on 2 October 2019 is not relevant, as it was rejected by the plaintiff.
The conclusions above do not to deny that, as found by Judge Manousaridis in the 3rd Circuit Court decision, the Mortgage is the relevant costs agreement, and are consistent with his Honour’s observation at [84(d)(ii)] of the 3rd Circuit Court decision that in construing the expression ‘legal costs incurred by the Mortgagor’ in the Mortgage the admissible extrinsic evidence ‘would at the very least include the Solicitors February costs disclosure, particularly that part which identifies the legal work Mr Bingham will perform, and the rates at which he would perform the work’.

The defendant submits that central to the plaintiff’s case is the allegation that the evidence in the Supreme Court, as well as the Full Federal Court, was not capable of establishing that the defendant had no relevant right of indemnity which would support a caveat (including a lack of evidence as to the extent of any offsetting claim that the Boensch Trust may have had against him). He submitted that this allegation had not been made out for a number of reasons:
For the plaintiff to prove that the evidence before the Supreme Court in the First Proceeding to be incapable of demonstrating that the plaintiff did not have the relevant right of indemnity, he would have to adduce all of that evidence in these proceedings so that the Court could make its assessment of whether that is in fact the case. His failure to do so means he cannot make good this factual allegation.
It is highly improbable that Darke J, as well as the Full Federal Court, would have made declined to make a factual finding that there was no right of indemnity if there was no sufficient evidence in support of that proposition, because if that were the case the case could simply have been decided on that basis as opposed to the way in which it was actually decided. The same point could be made as regards the decision to grant special leave.
Contrary to the plaintiff’s contentions, there was evidence which tends to demonstrate an absence of a right of indemnity on the part of the plaintiff throughout every stage of the proceedings, including most relevantly (a) the absence of any claim for a right of indemnity in the plaintiff’s statement of affairs and (b) Mr Pascoe’s own views that the right of indemnity having little or no value which was recorded in the judgment of Darke J.
The fact of the matter is that the High Court was simply not persuaded that the plaintiff has discharged his onus of proving that his right of indemnity has been completely negated by any obligation to account to the trust for the benefits, such that he could be properly said to have no right of indemnity. This does not mean that the evidence adduced at trial was ‘not capable’ of establishing that lack of a right of indemnity – it merely meant that the High Court was not persuaded that that evidence was sufficient to establish the proposition it seeks to establish.
Secondly, the defendant submitted that a solicitor in his position did not have an obligation to provide the sort of advice which the plaintiff claimed he has failed to provide for the following reasons:
The defendant was brought into the Compensation Proceedings at a very late stage, namely after the time for applying for special leave has already expired. This is said to weigh against any obligation on the part of the defendant to undertake a detailed review of the evidence in the case in order to advise the plaintiff as to whether the state of evidence with respect to the existence of the right of indemnity would have any effect in the final decision by the High Court, particularly when the defendant was not asked to provide any advice by the plaintiff as to this issue at the time;
Further to (1) above, the person who ought to have provided the plaintiff with that advice was Mr Bevan, who has been with the case since the start and on whom both he and the plaintiff relied;
Due to the plaintiff’s impecuniosity, the defendant’s only prospects of being paid was if (a) either victory was achieved in the High Court and an adverse costs order was to be obtained or (b) he were to realise his security over the Rydalmere property. In those circumstances, the low likelihood of the defendant being paid for his services further demonstrated that he had no obligation to go above and beyond in providing the type of advice which he was never asked to do.
There was sufficient evidence as to the right of indemnity issue to at least cause Darke J, the Full Federal Court and the High Court at the special leave hearing to refrain from making a finding that no such right of indemnity existed and ultimately decide the case on other grounds. It was only in the High Court where that factual finding was made. Thus, the lack of evidence was clearly not so poor as to prompt a solicitor in the defendant’s position, uninvited, to give advice, and accordingly the defendant had no duty to do so.
Thirdly, the defendant submitted that even if he is found to have breached his duty of care, it did not cause the plaintiff any loss or damage in the manner pleaded in the 2FASOC for the following reasons:
The plaintiff has not adduced any direct evidence of this causal connection;
There is no evidence which would cause the Court to infer the requisite causal connection, because there is nothing which would tend to suggest that the plaintiff would have done anything other than press on with the special leave application and eventual case in the High Court regardless of whether the advice as to the right of indemnity issue was provided by the defendant. Rather, the plaintiff’s extremely litigious tendencies, as evident throughout the multitude of cases involving him at all levels of the judicial hierarchy, would tend to confirm the opposite, and therefore no inference should be drawn in the plaintiff’s favour;
The plaintiff was informed that the odds of special leave being granted is very low, and yet he pressed on with it anyway, which ‘does not sit’ with the plaintiff’s case that he would have not proceeded had he received the relevant advice;
The plaintiff’s position at the point the defendant got involved in the matter was one where he had a significant incentive to proceed in the High Court at all costs and regardless of any weakness in his case. As outlined above and advised to the plaintiff by Mr Bevan, that is because at that point in time (following the Full Federal Court’s decision), the only thing that would improve the plaintiff’s position was a victory in the High Court and the resultant adverse costs order from that victory - the alternative option of giving up on the litigation would only confirm the plaintiff’s bankrupt status and therefore render any costs incurred up to that point completely pointless and irrecoverable. Put another way, the plaintiff effectively ‘had no choice but to run’ the special leave application and any appeal arising therefrom.
Lastly, assuming that both breach and causation have been established, the defendant submits that the plaintiff has not established that he had suffered any loss or damage arising from the defendant’s (assumed) breaches. The plaintiff has not adduced any evidence of the costs that he has personally incurred, and as far as Mr Pascoe’s fees are concerned none of it would have mattered to the plaintiff anyway because he is already judgment proof by virtue of his bankruptcy and complete lack of assets.

The plaintiff put this claim on two bases: negligence and breach of an implied term of the contract of retainer which obliged the defendant to exercise due skill and care in accordance with the plaintiff’s instructions.
It is clear that a solicitor owes a duty to exercise reasonable care and skill in both tort and contract which causes of action are co-extensive: Astley v Austrust Ltd (1999) 197 CLR 1; [1999] HCA 6 at [44]-[48]. The standard of care is that of a qualified and ordinarily competent and careful lawyer in the practice of his or her profession: Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15 at 580 per Deane J.
Section 5A of the Civil Liability Act 2002 (NSW) (the CLA) provides that Part 1A, which relevantly includes ss 5B, 5D, 5E and 5O, ‘applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise’. By reason of these provisions, it is appropriate to address the defendant’s liability in contract and tort together.
The defendant will be liable if he failed to take precautions against a foreseeable, not insignificant risk of harm to the plaintiff which a reasonable person in his position would have taken. In determining whether a reasonable person in the defendant’s position would have taken precautions, the Court is to take into account the possibility of harm if care were not taken, the likely seriousness of the harm and the burden of taking precautions as well as the social utility of the activity that creates the risk of harm: s 5B of the CLA.
The defendant did not raise in his defence or in submissions s 5O of the CLA, and referred only to s 5D. Having not invoked s 5O, the standard of care is that stated at [122] above.
In relation to the standard of care, a number of uncontroversial propositions can be stated. First, the nature and extent of the duty in the particular instance depends upon the circumstances of the case: Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [168].
Second, it is necessary to avoid the use of hindsight. In Hall v Foong (1995) 65 SASR 281 at 304 Debelle J said (Doyle CJ agreeing):

There are essentially three issues which arise: first, whether the defendant breached his duty of care to the plaintiff; secondly, whether that breach caused loss or damage to the plaintiff; and thirdly, the quantification of any such loss or damage.
The first issue requires the identification of the relevant risk of harm. It is not in dispute that this was that a failure of the defendant to provide legal advice and services in accordance with his duty of care to the plaintiff would result in ‘economic harm’ to the plaintiff. The economic harm is not identified in the 2FASOC or evidence, but I find that it is the risk that the plaintiff would suffer an adverse costs order as a result of the failure of his special leave application or, if leave was granted, the failure of his appeal.
The alleged breach of the defendant’s duty of care is the failure of the defendant to advise the plaintiff not to seek special leave because an appeal to the High Court was bound to fail or alternatively was highly likely to fail or alternatively was likely to fail, in each case for the reason that the evidence in the proceedings was incapable of establishing that the plaintiff had no right of indemnity.
The key facts relating to that question are as follows.
First, the plaintiff was instructed to act on the special leave application at short notice and in the context of advice given by Mr Bevan to the plaintiff on 5 February 2019 that the prospects of special leave being granted were low (7 to 8%) reflecting the low statistical chance of success given the sheer volume of special leave applications, but that if special leave was granted the appeal had good prospects. The plaintiff accepted in cross-examination that he received this advice from Mr Bevan and that he knew that if the special leave application was dismissed he would face an adverse costs order in the High Court, as well as costs in respect of the earlier proceedings before Darke J and the Full Federal Court. He also knew that if those costs orders were enforced, it could render him bankrupt. The plaintiff gave the following evidence in cross examination (T84.19-33):

I accept the defendant’s evidence that he relied on Mr Bevan to give the advice to the plaintiff regarding the prospects of the special leave application and the appeal to the High Court if special leave was granted because Mr Bevan had intimate knowledge of the case, the facts, the arguments and the applicable law. As noted above, the advice which Mr Bevan gave was that the appeal had good prospects if special leave was granted.
In so far as the indemnity issue is concerned, it is true that this was an issue in the appeal and the plaintiff failed on that issue because the evidence which had been led on the issue before Darke J was insufficient to discharge his onus of proof. However, three points can be made about the significance of this. The first is that when the indemnity issue was raised by Gordon and Nettle JJ in the oral hearing of the special leave application, Mr Bevan responded that he would ‘meet it’ on the evidence and on the merits. The defendant was in court when Mr Bevan said this. Mr Bevan was familiar with the evidence relevant to that issue and it was a matter of judgment whether that evidence was sufficient to discharge the plaintiff’s onus of proof. This is not a case where there was no evidence at all, and hence it cannot be said that Mr Bevan’s statement was glaringly wrong.
The second point is that in my view, contrary to the plaintiff’s contention, it cannot be said that the evidence in the proceedings was incapable of establishing that the plaintiff had no right of indemnity. I agree with the defendant’s submission that had that been so, Darke J (and the Full Federal Court) would have made the finding that the plaintiff had a right of indemnity which the High Court ultimately made, rather than declining to address the issue. Hence, this is not a case where the argument that there was a right of indemnity was hopeless which is the thrust of 2FASOC [21].
The third point is that the issues on the appeal were not limited to whether Mr Pascoe, as the trustee in bankruptcy, had a caveatable interest when he lodged the caveat by reason of the plaintiff, in his capacity as trustee of the Boensch Trust, having a right of indemnity in the Rydalmere property. Mr Bevan’s submissions on the appeal advanced number of arguments as to why even if the plaintiff had a right of indemnity, the plaintiff had discharged his onus under s 74P(1)(a). In particular, it was submitted that the ‘two-step’ test in Beca Developments was not the correct test, so that the mere existence in fact of a caveatable interest was not sufficient to prevent an obligation to pay compensation under s 74P from arising. While those submissions were rejected (see the High Court judgment at [109]-[114]), they were arguable.
Fourthly, the defendant is a general practitioner and Mr Bevan was a specialist advocate who held himself out as an expert on the law relating to bankruptcy, trusts and real property on which the issues in the appeal turned and those issues were complex and called for specialist advice.
In my opinion in all the circumstances, it was reasonable for the defendant to rely on Mr Bevan’s advice that the prospects of success on the special leave application were low but the prospects of the appeal, if special leave was granted, were good. That advice was not obviously or glaringly wrong, particularly since in circumstances where special leave is granted, a reasonable person can conclude that there is at least a prospect that the appeal will be allowed: NRMA Ltd v Morgan [1999] NSWSC 407 at [1204] per Giles J. Nor in all the circumstances was there reason for the defendant to suppose that Mr Bevan had overlooked or misapprehended a relevant aspect of the appeal.
For these reasons, the plaintiff has not established that the defendant breached his duty to exercise reasonable care in the circumstances of this case. Put in terms of the test in s 5B, the defendant did not fail to take the precautions which a reasonable solicitor in the defendant’s position would have taken against the risk of harm to the plaintiff identified earlier arising from the High Court special leave application and resulting appeal.
In light of that conclusion the issues of causation and quantification of loss do not arise. It is sufficient to address them briefly.
In relation to causation, s 5D of the CLA provides:

I have found that there was no negligence in the defendant failing to give advice to the plaintiff regarding the state of the evidence on the indemnity issue. Even if that advice had been given by the defendant, whether before or after special leave was granted, the plaintiff has not established that he would not have proceeded with the appeal. He was prepared to proceed with the special leave application despite the very low prospects of success. If, following the grant of special leave, the defendant had advised him that in the defendant’s view, the indemnity question could not, or it was likely that it could not, be met on the evidence (despite what Mr Bevan said during the course of oral argument on the special leave application), there is nothing in the evidence to suggest that Mr Bevan’s advice on prospects would have changed, particularly as the appeal did not turn solely on the indemnity issue. That is important because it is clear that the plaintiff was relying upon Mr Bevan’s advice, who as noted above is much more familiar with the matter and has already indicated that the prospects of success in the actual appeal were good. I am therefore not persuaded, on the balance of probabilities, that had the defendant given the advice in question the plaintiff would have acceded to that rather than proceeding in accordance with Mr Bevan’s advice.
Insofar as the quantification of loss is concerned, I accept the defendant’s submission that there is no evidence before the court as to the loss or damage suffered by the plaintiff even if, contrary to my view, the defendant was negligent in the manner alleged. The claimed loss is costs relating to the special leave application and the subsequent High Court appeal, and ‘other costs and liabilities connected with the Solicitor seeking to secure his costs and disbursements’: 2FASOC [49]. However, the evidence does not establish what, if any, amounts in respect of these costs have been paid by the plaintiff. Consequently, the plaintiff has not discharged his onus on quantification of the loss or damage.
For the above reasons, the plaintiff fails on the first claim.

The defendant denies liability in respect of the second claim on the following grounds.
First, the defendant submitted that by 2.02pm on 28 February 2019, the plaintiff made clear in a correspondence sent by him to the defendant that the latter ‘have not intended to do something about [the application to set aside the 2nd Bankruptcy Notice]’, which is before the relevant deadline on 1 March 2019 – a proposition which was both understood by the plaintiff to be true (since by that same correspondence he acknowledged that the time for filing that application was ‘running out tomorrow Friday 1 March’) and also determined to be actually true by Abraham J in the Federal Court. In those circumstances, the defendant submits that there was no duty owed (because he did not agree to act for the plaintiff in relation to the setting aside of the 2nd Bankruptcy Notice), and that even if a duty was owed there was no relevant breach (because the plaintiff was already appraised of the true deadline prior to the deadline for that application). To the extent that the plaintiff’s application was ultimately late, it was clear from the correspondence between the plaintiff and Mr Bevan that this was caused by mistaken advice by the Registry rather than having anything to do with the defendant.
Second, the defendant submits that even if he has been negligent and that negligence led to the plaintiff’s delay in failing to meet the deadline for the application to set aside the 2nd Bankruptcy Notice, it would still nevertheless bear no relevance on success of that application. That is because both Robertson J and Abraham J in their respective decisions made plain that independent of the delay issue, the plaintiff had no arguable grounds to set aside the 2nd Bankruptcy Notice – none of the plaintiff’s substantive arguments (which essentially involved allegations of lack of procedural fairness and abuse of process on the part of Somerville Legal in lodging the notice) were tenable. As such, the plaintiff’s case on causation must necessarily fail.
Lastly, the defendant submits that plaintiff has not demonstrated that he has suffered any loss or damage arising out of his alleged negligence in respect of the Bankruptcy Proceedings. The plaintiff has not adduced any evidence in these proceedings to make good the heads of losses which he claims in paragraph [68] of the 2FASOC.

The pleaded case is that the plaintiff instructed the defendant to make an application to set aside the 2nd Bankruptcy Notice by the email sent on 18 February 2019 and that a reasonably competent solicitor would have followed the instructions in that email and made an application in the Circuit Court to set aside the 2nd Bankruptcy Notice no later than 28 February 2019, which he did not do.
It is clear that the deadline for filing the application with the Circuit Court was in fact Friday, 1 March 2019 and not 28 February 2019, and the claim needs to be addressed on that basis (as the plaintiff accepted).
The relevant ‘instruction’ on 18 February 2019 on which the plaintiff relies is the email he sent to the defendant on that date set out earlier. I accept that on a fair reading of his email the plaintiff was asking the defendant to make an application to the Circuit Court on his behalf to set aside the 2nd Bankruptcy Notice. However, it is clear that at no stage did the defendant, on or before 1 March 2019, accept instructions or agree to act for the plaintiff in any application to set aside the 2nd Bankruptcy Notice. To the contrary, he told the plaintiff on 28 February 2019, at some time before 2.02pm, that he would not do so.
From that time, the plaintiff became aware of the need for him to make the application himself on 1 March 2019 and he did attend the Registry on that day to do so. On his evidence, he failed to do so because he was unable to complete the application for a waiver of the applicable filing fee, and was told incorrectly by the Registry staff that he would still be within time if he came back on the following Monday (which he did). It was not until around 15 March 2019 that the defendant agreed to do act for the plaintiff in relation to the 2nd Bankruptcy Notice.
The defendant had no obligation to accept instructions to perform work for the plaintiff unless that work fell within the terms of his retainer. In Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1 at [208] the Court (Spigelman CJ, Sheller and Stein JJA) said:

At the time of the 18 February 2019 email, the defendant had sent to the plaintiff the 7 February engagement letter which was an offer to provide legal services in relation to the special leave application in the High Court, and, if special leave was granted, any security for costs application and the appeal. Judge Manousaridis found in the 3rd Circuit Court decision that this offer was not accepted either in writing or by conduct because the parties were still in discussions about the terms of the Mortgage. Consequently, a contract on those terms did not come into existence. On 25 February 2019, the defendant sent to the plaintiff the 25 February engagement letter, which expanded the scope of his work to include the Somerville Caveat proceedings but did not refer to the 2nd Bankruptcy Notice. I have made a finding earlier in these reasons that this engagement letter formed part of the contract of retainer between the parties when the Mortgage was entered into. However, while that contract was entered into after 1 March 2019, both the 7 February engagement letter and the 25 February engagement letter indicate clearly the scope of the work which the defendant was offering to undertake for the plaintiff, and that did not include the setting aside of the 2nd Bankruptcy Notice.
In circumstances where there was no agreement by 1 March 2019 as to the basis on which the defendant would be entitled to charge the plaintiff for the legal services he was to provide, there could be no contractual obligation on him to act in relation to a task (setting aside of the 2nd Bankruptcy Notice) which he had not agreed to undertake. Nor, as that task was outside the scope of his retainer, did he have a duty of care to the plaintiff at common law to undertake that task.
The plaintiff submitted that the defendant ought to have given him more notice that he was not proposing to act for him on setting aside the 2nd Bankruptcy Notice. While that would have been desirable, the plaintiff had made the defendant aware on the morning of 28 February that he needed to take the necessary steps himself. The plaintiff had already taken steps to set aside two earlier bankruptcy notices issued in respect of the same debt claimed by Somerville Legal and he had been acting without legal representation in the Somerville Caveat Proceedings for a considerable period up to this time, including filing a cross-claim. The defendant was entitled to consider the plaintiff to have the necessary experience to file the application himself. Indeed, he would have been able to do so had it not been for the problem which arose at the Registry when his application for relief from the filing fee was rejected due to the absence of necessary supporting material.
This claim has not been made out.

Central to this claim is the allegation that the defendant acted without instructions in dropping the parts of the cross-claim dealing with his liability to Somerville Legal for their costs (being [48]-[52] of the cross-claim) and without advising the plaintiff as to the disadvantages of not pressing those parts of the cross-claim in light of the Bankruptcy Proceedings.
As to the first allegation, the evidence does not establish that the defendant did not have instructions to drop paragraphs [48]-[52] of the cross-claim. The plaintiff sent the email of 5 March 2019 to the defendant stating ‘now since the argument has shifted away from the counter claim, I wonder what you expect I can contribute on the weekend’ which is an apparent acceptance that the argument on the cross claim would not be pressed and this was reflected in the written submissions dated 12 March 2019 prepared by the defendant for the hearing before Henry J on the following day (which he sent to the plaintiff on 12 March 2019 at 7.27pm). Those submissions contained an explanation for why this part of the cross claim was not pressed, reflecting advice which Mr Bevan had given regarding the way to approach the matter. The plaintiff did not complain at the time that the cross-claim had not been pressed without his instructions, and indeed as a consequence of Somerville Legal capitulating at the hearing on 13 March 2019, the plaintiff received a costs order in his favour.
In so far as the allegation that the defendant did not provide advice as to the disadvantages of not pressing the cross-claim is concerned, three points can be made.
First, despite the fact that the plaintiff filed a cross-claim on 9 May 2017, as a self-represented litigant, he had not by the time the defendant became involved in the matter on around 8 February 2019 filed any evidence in support of the claim in the cross-claim that the amount owing by him to Somerville Legal was a maximum amount of $22,348.80 (let alone only $11,500). Nor was any affidavit evidence prepared by the plaintiff after 8 February 2019 dealing with that matter. Accordingly, as the plaintiff was subject to a guillotine order made by Henry J on 25 February 2019, that part of the cross-claim was hopeless.
I have reviewed carefully the email correspondence between the plaintiff and the defendant from 8 February 2019 to 13 March 2019, including the batch of emails sent by the plaintiff to the defendant from late on Friday 8 February to late on Sunday 10 February 2019 attaching various documents relating to his claim against Somerville Legal. It is largely incomprehensible and does not support the contention that his maximum liability to Somerville Legal was $11,500. For example, in the email of 9 February 2019 sent at 7.13pm, the plaintiff states:

Secondly, the plaintiff has not identified what were the disadvantages of not pressing the relevant parts of the cross-claim addressing his liability to Somerville Legal. It is apparent from the careful analysis by Judge Manousaridis in the 3rd Circuit Court decision at [70]-[82] that the plaintiff could ‘go behind’ the two Local Court judgements which were the basis for the 2nd Bankruptcy Notice in an application to set aside that bankruptcy notice or at the hearing of the creditor’s petition based on it. He could therefore have agitated the quantum of his actual liability to Somerville Legal in the Circuit Court at the hearing of the creditor’s petition. He did not explain why he was at any relevant disadvantage in doing that in the Circuit Court rather than the Supreme Court in the Somerville Caveat Proceedings.
Thirdly, it is apparent from the defendant’s email sent on 18 February 2019 and the content of the submissions dated 12 March 2019 prepared by the defendant for the hearing of the Somerville Caveat proceedings on the following day that the decision not to press the claims for relief in prayers 5, 6 and 7 of the cross claim was based on advice by Mr Bevan as to the correct strategy for dealing with Somerville Legal’s claim. That advice may have been incorrect, but that of itself does not make it negligent. Further, given what is said in the previous paragraph, that advice even if it was incorrect did not prevent the plaintiff from contesting in the Bankruptcy Proceedings the quantum of his liability to Somerville Legal.
For these reasons, in my view, the plaintiff has not established that the prosecution of the relevant parts of the cross-claim would have had a material impact on the Bankruptcy Proceedings or that there was any breach by the defendant of his duty of care in contract or tort in not pressing them. Nor has the plaintiff established that, if there was such a breach of that duty of care, it was causative of any loss suffered by the plaintiff.
Accordingly, this claim is not made out.

I accept the defendant’s submission that the fourth claim in this case is materially the same as order 7 sought by the plaintiff by way of cross-claim in the Caveat judgment, because the right or obligation asserted by the plaintiff in this fourth claim is in substance the same as the relief claimed under order 7 of the plaintiff’s cross-claim in the Caveat judgment was for ‘compensation for loss and damages for actions by the plaintiff following the breach of the attachment “A”’ (with ‘attachment A’ being the annexure to the Mortgage set out at [95] above) and the arguments made in support of that relief: Caveat judgment at [6]-[7] and [32]-[34]. At paragraph [62] of the Caveat judgment, Peden J concluded that she ‘d[id] not accept that Mr Boensch is entitled to any of the relief sought in his cross-claim’ and by order (3) in the Caveat judgment dismissed the cross-claim in its entirety. No part of her Honour’s judgment was disturbed by the Court of Appeal in the Caveat appeal judgment.
Although it may be said that Peden J’s reasons were primarily expressed as a refusal to accept that the defendant’s breaches constitute a repudiation of the Mortgage, which is distinct from the plaintiff’s current claims for damages arising out of those breaches, it is the record, comprising of pleadings and orders, rather than the reasons which determines whether a res judicata arises: Pillnow v Armstrong [2000] NSWCA 245 at [13] (Meagher JA, Sheller and Preistley JJA agreeing). This is so especially where, as here, there is no ambiguity in the record: cf Linprint Pty ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at 516-517. Consequently this is a straightforward case of res judicata and the plaintiff is therefore precluded from reagitating this claim.
Even if this conclusion is wrong and there are insufficient similarities between the causes of action asserted in the fourth claim and in the cross-claim determined by the Caveat judgment to establish a res judicata in the strict sense, the fourth claim is nevertheless precluded by the doctrine of Anshun estoppel. In circumstances where the plaintiff has already brought a cross-claim for damages for breaches of the kind described by Peden J at paragraph [33] of the Caveat judgment, it was unreasonable for him not to have brought in those proceedings the remaining claims which he now seeks to litigate here in the fourth claim: Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 at 558.

I note also the following provisions of Div 4 of Pt 4.3 concerned with costs agreements: s 180, which provides that a costs agreement must be written or evidenced in writing and may consist of a written offer that is accepted in writing or (except in the case of a conditional costs agreement) by other conduct; s 184, which provides that subject to the other provisions of the Uniform Law, a costs agreement may be enforced in the same way as any other contract; and s 185(1), which provides that a costs agreement that contravenes any provision of Div 4 of Pt 4.3 is void (but recognises in a note that if a costs agreement is void due to a failure to comply with the disclosure obligations of Pt 4.3, the costs must be assessed before the law practice can seek to recover them). The plaintiff did not rely on these provisions in the 2FASOC.
It is clear that s 178 of the Uniform Law renders the costs agreement void in a limited sense, being that the client is not required to pay the legal costs until the costs have been assessed and the law practice must not commence or maintain proceedings for recovery of any or all of the legal costs until they have been assessed: Caveat appeal judgment at [40].
The plaintiff did not articulate what the alleged breaches of s 172, 173, 174 and 175 were which would enliven s 178. However, even if it was shown that there was a relevant breach of those provisions, it would not result in the ‘rejection’ of the remuneration claimed by the defendant. The defendant would at least be entitled to claim his fees on a quantum meruit basis, subject to the terms of the Mortgage: Caveat appeal judgment at [24].
The decision of Slattery J in Frontier Law Group does not assist the plaintiff. His Honour there was concerned with an application by a solicitor to extend a caveat claiming an interest said to arise under a ‘retainer and costs agreement’ between the solicitor and his client who was the registered proprietor of the land. His Honour concluded that the caveat should not be extended due to the deficiencies in the evidence necessary to establish that the claimed interest ‘has or may have substance’ within the meaning of s 74K(2) of the Real Property Act, which included proof of the costs agreement itself. His Honour noted that there were many failures to comply with the requirements of the Uniform Law in relation to costs disclosure requirements. However, the decision does not establish that a solicitor who fails to comply with those requirements has no entitlement to recover any fees for the work done.
It is relevant to note also that these proceedings do not involve a claim by the defendant to recover any of his fees from the plaintiff.
The plaintiff has not made out this sixth claim. Further, given that the declaratory relief sought in in prayers 4 and 6 is in connection with the claim that the defendant’s entitlement to his fees should be ‘rejected’, which has not been made out, there is no utility in granting that declaratory relief.

Boensch v Bingham (No 2)

At a glance

Court

Decision date

Before

Catchwords

Catchwords

Judgment

Source

JUDGMENT

Hearing

Claims

Factual background

Compensation Proceedings

Bankruptcy Proceedings

Somerville Caveat Proceedings

Costs Proceedings

Background facts regarding the services provided by the defendant to the plaintiff

Scope of the defendant’s retainer

First claim

Plaintiff’s submissions

Defendant’s submissions

Relevant principles

Consideration

Second claim:

Plaintiff’s submissions

Defendant’s submissions

Consideration

Third Claim

Plaintiff’s submissions

Defendant’s submissions

Consideration

Fourth claim:

Plaintiff’s submissions

Defendant’s submissions

Consideration

Fifth claim:

Plaintiff’s submissions

Defendant’s submissions

Consideration

Sixth claim:

Plaintiff’s submissions

Defendant’s submissions

Consideration

Conclusion

Amendments

16 May 2026

Parties

Legislation Cited (6)

Cases Cited (51)