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Solicitor clashes with client over Sydney property
A Sydney solicitor has been locked in a lengthy court fight to hold onto a caveat lodged on a former client’s Rydalmere home.
Naomi Neilson
Five months after winning the first battle to keep the caveat, North Sydney solicitor John David Bingham has been dragged through yet another court hearing against former client Franz Boensch.
Boensch attempted to have this security found “nil and void” late last year with a cross-claim but was knocked back by Justice Elisabeth Peden, who found Boensch “is not entitled to any relief”.
In the appeal before Justices Fabian Gleeson, Richard White and John Griffiths, Boensch has argued five grounds, including that a separate claim of negligence against Bingham “should be set-off against any liability arising under the mortgage” if successful.
Boensch argued the mortgage and caveat are void because Bingham allegedly failed to provide an updated costs disclosure and breached a costs agreement obtained in the mortgage by applying and enforcing a judgment for costs before they became payable.
The former client went on to argue that a review by a costs review panel prevents Bingham from recovering any costs and the mortgage was not properly witnessed and is therefore invalid.
In their reasons, Justices Gleeson, White and Griffiths found Justice Peden “did not misinterpret findings” about the costs disclosure between the two, and agreed the “only costs agreement which binds the parties is the agreement constituted by the mortgage”.
As for the argument of the set-off, the appeal bench said neither party has a judgment for a sum against the other, “so no judgments are presently capable of being set-off”.
“The primary judge did not err in finding Bingham is prima facie entitled to some payment under the mortgage, notwithstanding separate ongoing proceedings between the parties that may result in an award of damages to Boensch,” the justices added.
Boensch’s final argument was a discrepancy in the justice of the peace’s number on the mortgage when it was witnessed invalidated it, but Justices Gleeson, White and Griffiths said this argument does “not demonstrate anything more than a typographical error”.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
