Boensch v Bingham

1. [1]

   GLEESON JA: In the underlying proceedings, Mr Franz Boensch, the registered proprietor of land at Rydalmere in New South Wales, challenged the validity of a caveat lodged by Mr John Bingham claiming an interest in the Rydalmere land pursuant to a mortgage given by Mr Boensch to Mr Bingham dated 12 March 2019. The mortgage was unregistered. The primary judge (Peden J) found that the caveat was valid and made declarations concerning the validity of the mortgage and its enforceability: Bingham v Boensch [2023] NSWSC 1187 (the primary judgment).

2. [2]

   Mr Boensch appeals from that judgment. For the reasons that follow the appeal should be dismissed.

Background

1. [3]

   In 2019 Mr Bingham represented Mr Boensch and briefed a barrister, Mr Christopher Bevan, to appear for his client on an application for special leave to appeal to the High Court in a dispute between Mr Boensch and his trustee in bankruptcy, Mr Scott Pascoe. The High Court granted special leave to appeal on 21 June 2019, the appeal was heard on 11 October 2019 and was dismissed on 13 December 2019: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49.

2. [4]

   Mr Boensch and Mr Bingham have since fallen out in relation to Mr Bingham’s claim for legal costs including counsel’s fees, and whether the advice provided in connection with the High Court appeal was negligent. The background to the dispute concerning legal costs is as follows.

3. [5]

   In February 2019 Mr Bingham provided Mr Boensch with a “Costs Disclosure & Costs Agreement” which included a costs estimate totalling $32,500 in respect of three stages of work: (i) special leave application - $7,700, (ii) any application for security for costs - $5,500, and (iii) appeal - $20,000. The barrister also provided Mr Bingham with two separate costs agreements; the first dated 2 February 2019, with an estimate of total fees of between $63,000-$75,000 plus GST in respect of the three stages of work, and the second dated 6 February 2019, with an estimate of total fees at $60,000 plus GST plus travelling and out-of-pocket expenses.

4. [6]

   On 12 March 2019 Mr Boensch gave a mortgage over the Rydalmere property to Mr Bingham as security for the continuing provision of legal services (the mortgage). The terms and conditions of the mortgage were contained in Annexure A to the mortgage and included:

5. [7]

   On 21 June 2019 Mr Bingham lodged caveat AP338562 over the Rydalmere property claiming an interest in the property pursuant to the unregistered mortgage.

6. [8]

   On 4 October 2019 Mr Bingham provided Mr Boensch with an updated “Costs Disclosure & Costs Agreement” which included a costs estimate excluding GST totalling $358,700 comprising (i) solicitors’ fees - $35,000, (ii) barrister’s fees - Mr Bevan - $295,000 and Mr Michael Wells - $20,000, and (iii) disbursements (third party expenses) - $8,500 and internal expenses - $200. Mr Boensch rejected that costs agreement immediately on receipt on 4 October 2019.

7. [9]

   Notwithstanding the terms of the mortgage, Mr Bingham applied in October 2020 for an assessment of his costs of legal services provided to Mr Boensch, including counsel’s fees. A costs assessor issued a certificate of determination on 9 December 2020 in the sum of $358,234.71 and on 7 May 2021 the determination was forwarded to the parties by the Manager, Costs Assessment. Mr Bingham registered this certificate as a judgment of the District Court on 4 June 2021 in the sum of $372,674.84, including interest and costs. A bankruptcy notice was served on Mr Boensch on 6 September 2021. Mr Boensch made application to the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) to set aside the bankruptcy notice.

8. [10]

   In October 2021 Mr Boensch served on Mr Bingham a lapsing notice issued by the Registrar General under s 74I of the Real Property Act 1900 (NSW). Mr Bingham then commenced proceedings in the Equity Division seeking declarations that the caveat was valid and ought to remain on title and that the mortgage binds the parties. The caveat was initially extended by the Court for an interim period and was extended on 7 December 2021 until further order. Mr Boensch filed a cross-claim in the underlying proceedings seeking declarations that the caveat and mortgage were invalid and void.

9. [11]

   On 4 February 2022 Judge Manousaridis set aside the bankruptcy notice on the ground that the District Court judgment did not represent any debt payable by Mr Boensch to Mr Bingham. His Honour found that (i) the February and October 2019 costs agreements were not binding on Mr Boensch, (ii) the only binding costs agreement was that contained in the mortgage, (iii) given the terms of Annexure A to the mortgage, no legal costs were payable to Mr Bingham at the time he applied for the assessment of his costs, and (iv) it followed that the costs assessor purported to embark on an assessment of legal costs he had no authority to make, and therefore purported to make a costs determination in relation to the High Court proceedings he had no jurisdiction to make: Boensch v Bingham (No 2) [2022] FedCFamC2G 47 (Boensch (FCFCOA)) at [85]. An appeal by Mr Bingham from that decision was dismissed by Abraham J: Bingham v Boensch [2023] FCA 117 (Boensch (FCA)).

10. [12]

    On 21 October 2022 the certificate of determination was referred to a Costs Review Panel, after Mr Boensch obtained an extension of time for review: Boensch v Bingham [2022] NSWSC 1432. The Panel issued two new certificates, together with reasons on 29 March 2023. The certificate of costs was issued in a $Nil amount with reasons, which included the following:

11. [13]

    Mr Boensch was self-represented in the underlying proceedings. His cross-claim relevantly asserted that:

12. [14]

    At the hearing below Mr Boensch advanced eight reasons (one of which was not pressed) why the caveat ought to be removed from the title of the Rydalmere property and why the mortgage had no work to do. Relevantly for this appeal, the first reason was that “[t]his Contract/costs-agreement is now void and declared by courts as void” and “therefore the Mortgage securing Annexure ‘A’ … void as well”.

13. [15]

    On 6 October 2023 the primary judge delivered judgment, rejecting each of the reasons advanced by Mr Boensch, dismissed the cross-claim and ordered Mr Boensch pay Mr Bingham’s costs of the proceedings on the ordinary basis as agreed or assessed. Her Honour made the following declarations concerning the mortgage:

The appeal

1. [16]

   Mr Boensch appeals from the whole of the judgment below. He was self-represented in this Court and unfortunately the notice of appeal is prolix; it contains 28 grounds which are mostly in general or conclusionary terms, and fails to state briefly, but specifically, the grounds relied upon in support of the appeal, as required by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.18(1)(e).

2. [17]

   In his written submissions Mr Boensch contends that the mortgage is void for five broad, somewhat overlapping reasons, and the caveat ought therefore to be removed from the title to the Rydalmere property. It is convenient to reproduce Mr Boensch’s summary of his argument in par [17] of his written argument:

3. [18]

   The reasons in (a), (b), (d) and (e) above are relied upon for the central proposition that Mr Boensch’s liability under the mortgage for the legal costs is “undefined” and “a forensic or speculative amount”, with the consequence that the caveat should not be extended. The reason in (c) above is relied upon for the alternative proposition that the mortgage is not binding on Mr Boensch as the signature of Mr Bingham was not properly witnessed.

4. [19]

   In oral argument, Mr Boensch identified his primary argument as that referred to in (a) above. This reason directs attention to several provisions in the Legal Profession Uniform Law 2014 (NSW) (Uniform Law) dealing with legal costs.

The principal statutory provisions – Uniform Law

1. [20]

   Pt 4.3 (Legal Costs), Div 2 (Legal costs generally), includes s 172 which deals with the requirement that legal costs must be fair and reasonable. It provides:

2. [21]

   Div 3 (Costs disclosure) includes s 174 which deals with the disclosure obligations of a “law practice”; that expression is defined in s 6 to include a legal practitioner or a law firm. It relevantly provides:

3. [22]

   Section 178 deals with the consequences of non-compliance with disclosure obligations for a costs agreement. It relevantly provides:

4. [23]

   Div 4 (Costs Agreements) contains other material provisions, including: ss 180, 184 and 185. They relevantly provide:

Non-compliance with disclosure obligations

1. [24]

   The primary judge recorded at [27], consistently with Mr Boensch’s written submission referred to at [14] above, that Mr Boensch submitted that the mortgage only secured the costs agreement, which Judge Manousaridis and Abraham J had determined to be void. The primary judge rejected this submission at [28]-[31] of her judgment. After noting that Mr Boensch was correct in submitting that Mr Bingham’s alleged costs agreements (that is, the February and October 2019 costs disclosures) had not been accepted in the Federal Court as an agreement that binds the parties, and referring to the reasons of Judge Manousaridis at first instance and Abraham J on appeal, the primary judge said at [30]-[31]:

2. [25]

   Mr Boensch contends by grounds 3, 4, 5 and 6 that the primary judge (i) misinterpreted the decisions of Judge Manousaridis and Abraham J , (ii) erred in failing to find that there was non-compliance with disclosure obligations given the amount enforced was about $376,000, exceeding the capped amount of $100,000 under the mortgage, and (iii) erred in finding “that the mortgage as an essential part of the costs agreement was not void as regulated under s 178(1)(a) of the Uniform Law”.

3. [26]

   In oral argument, Mr Boensch said that the mortgage which secures legal costs, is part of the costs agreement and is void due to the costs agreement being void. Thus, it is said that there is no amount for the caveat to secure.

4. [27]

   The first argument ignores the findings of Judge Manousaridis, which were upheld by Abraham J. Contrary to the submission, Judge Manousaridis did not find that the February and October costs disclosures were void under s 178 of the Uniform Law for non-compliance with the solicitor’s disclosure obligations under s 174(1). That was not in issue before Judge Manousaridis. As his Honour recorded, Mr Boensch’s argument was that the February and October 2019 costs disclosures were not binding costs agreements because they were never accepted by Mr Boensch, whilst the mortgage was a costs agreement, and the liability, if any, to pay legal costs to Mr Bingham was regulated entirely by the mortgage: Boensch (FCFCOA) at [3], [59], [60(b)(i) and (ii)], [61] and [62(b)]. Mr Boensch adhered to that position on the appeal before Abraham J: see Boensch (FCA) at [7].

5. [28]

   Although lengthy, it is appropriate to reproduce the findings of Judge Manousaridis in Boensch (FCFCOA) at [83]-[85]:

6. [29]

   Dismissing the appeal, Abraham J stated at [85]-[86]:

7. [30]

   The primary judge did not misinterpret the findings made by Judge Manousaridis and Abraham J.

8. [31]

   Compliance with the disclosure obligations under s 174(1) of the Uniform Law and the consequences of non-compliance for the costs agreement concerned (if any) under s 178(1)(a) were not issues that were pleaded by Mr Boensch in his defence or cross-claim. The pleaded issue raised by the cross-claim (pars 8-12) was that Mr Bingham had “broken” the agreement in Annexure A to the mortgage by enforcing his claim for legal costs in an amount more than the capped amount of $100,000 and prior to 1 March 2024. Accordingly, it is unsurprising that the primary judge made no findings concerning Mr Bingham’s disclosure obligations under s 174(1) of the Uniform Law, or whether the mortgage was void under s 178(1)(a) of the Uniform Law.

9. [32]

   It is said that the primary judge found that “the mortgage … was not void as regulated under s 178(1)(a) of the Uniform Law”. That is not an accurate statement of her Honour’s findings: cf [30]-[31] of the primary judgment. Insofar as it said that the primary judge erred in not finding that “there was non-compliance with disclosure obligations given the amount enforced was about $376,000, exceeding the capped amount of $100,000 under the mortgage”, this assumes that compliance with the disclosure obligations under s 174(1) was a matter in issue below. As indicated, this issue was not pleaded.

10. [33]

    Nevertheless, complaint is made that the primary judge misunderstood Mr Boensch’s position concerning the costs agreement contained in the mortgage, as recorded in her Honour’s reasons at [30] (which are set out at [24] above). This submission directs attention to the way the case was run at trial. The transcript records that the primary judge sought clarification of Mr Boensch’s position, given the findings of Judge Manousaridis, which were upheld by Abraham J. Mr Boensch responded that the mortgage was an agreement which bound the parties; his said that the mortgage “no longer binds the parties because Mr Bingham breached the covenants”. As indicated, that was a different reason why Mr Boensch said the mortgage was no longer binding, which the primary judge separately addressed: see [45]f below.

11. [34]

    Mr Boensch also accepted that: (i) he had sought a declaration in the negligence proceeding that the mortgage is a contract and therefore a legally binding agreement; (ii) the primary judge did not need to decide whether the mortgage contained a costs agreement, as that had been decided in the FCFCOA and FCA; and (iii) his primary argument was that the mortgage was void because Mr Bingham had breached the contract and therefore the contract (being the costs agreement in the mortgage) could not be enforced. However, Mr Boensch also made passing references below to the Uniform Law and non-disclosure, relevantly, he said:

12. [35]

    It is evident that there was a degree of confusion, and some tension, in Mr Boensch’s responses to the primary judge’s questions. It is not clear whether Mr Boensch’s reference to the costs agreement being “not updated properly”, was a reference to the October costs disclosure not being a binding agreement, as Judge Manousaridis found, or an assertion of non-disclosure by Mr Bingham of an updated estimate of legal costs under s 174(1)(b).

13. [36]

    The primary judge sought clarification of Mr Boensch’s position concerning the mortgage after the luncheon adjournment below. Mr Boensch accepted that the Federal Court had made a finding about the mortgage, and went on to say that that the “agreement, including mortgage, … falls away because being void, not being updated it falls away”. It is appropriate to reproduce this exchange in full:

14. [37]

    Thus, there remained a degree of confusion in Mr Boensch’s responses to the primary judge’s questions, even after her Honour sought clarification from Mr Boensch. Nevertheless, it does not follow that the primary judge was in error in not deciding a matter which had not been pleaded, relevantly, whether Mr Bingham had contravened the disclosure obligations under s 174(1)(b), and if so, what was the effect of non-compliance on the mortgage, given s 178(1)(a).

15. [38]

    Plainly, an assertion that Mr Bingham had contravened the disclosure obligations under s 174(1)(b) was likely to be contentious. It should have been pleaded. It was not suggested by Mr Boensch that the parties had departed from the pleadings in the conduct of the trial. Nor was it suggested that it should be inferred that Mr Bingham acquiesced in such a course, assuming that course had been adopted by Mr Boensch at trial: Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 287.

16. [39]

    Two further matters serve to reinforce the conclusion just mentioned as to the way the case was run at trial. The first is that it is not immediately obvious that Mr Bingham was required to provide an updated estimate under s 174(1)(b) in circumstances where Mr Bingham and the barrister had provided a total estimate of legal costs in February 2019 of $92,500 and the parties had negotiated and signed the mortgage containing a costs agreement which capped costs at $100,000.

17. [40]

    The second is that Mr Boensch’s submissions below did not address the meaning of the word “void” in s 178(1)(a) of the Uniform Law, which was considered in Bingham v Bevan (2023) 111 NSWLR 287; [2023] NSWCA 86 at [40]-[49]. Contrary to the premise of Mr Boensch’s submission in this Court, “the word “void” is not used to the Uniform Law to indicate some absolute absence of legal effect”: Bingham v Bevan at [41] (Basten AJA, Meagher and White JJA agreeing). Further, as Basten AJA also observed at [41], s 178(1) of the Uniform Law identifies specific consequences of contravention of the disclosure obligations, which may arise where there is a void costs agreement: namely, 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: s 178(1)(b) and (c). The primary judge ought not be criticised for not dealing with a matter which was not pleaded, nor the subject of a clearly articulated argument.

18. [41]

    In summary, given the pleadings and the way the case was run at trial, it was not necessary for the primary judge to make findings concerning non-compliance with the disclosure obligations under s 174(1) of the Uniform Law, or the consequences under s 178(1)(a) for the costs agreement concerned (if any), assuming a contravention of the disclosure obligations.

19. [42]

    Alternatively, it is said that if the mortgage is binding it secured, at most, the amount of $27,000. This submission assumes that (a) the estimate in the February costs disclosure should be reduced by $7,000 in respect of any application for security for costs of the appeal, as no such application was in fact made, and (b) Mr Bingham has no liability in respect of counsel’s fees given the decision of the Court in Bingham v Bevan.

20. [43]

    As to (a), the argument confuses Mr Boensch’s liability to pay legal costs which was capped at $100,000, with the integers of the estimate contained in the February costs disclosure. Whether the legal costs charged by Mr Bingham for the work actually performed are fair and reasonable (Uniform Law, s 172(1)) is a matter to be determined on a costs assessment occurring after 1 March 2024.

21. [44]

    As to (b), the argument involves a misreading of the Court’s reasons in Bingham v Bevan. The Court did not find that Mr Bingham did not have any liability whatsoever to the barrister for counsel’s fees. The Court held that the barrister could not recover any amount from the solicitor that would not have been payable if the payment condition in the costs agreement (by which the solicitor’s liability for the payment of counsel’s fees was conditional upon the solicitor recovering the barrister’s fees from either the client (Mr Boensch) or the respondent to the appeal) were still operative: at [50]-[58].

Alleged breach of the mortgage

1. [45]

   The second reason relied upon by Mr Boensch relates to the conditions of the mortgage in Annexure A. It is said that Mr Bingham breached the mortgage by taking the following steps before 1 March 2024: seeking an assessment of costs, registering the certificate of determination as a judgment, and issuing a bankruptcy notice.

2. [46]

   The primary judge rejected this argument at [32]-[37] of her judgment. It is sufficient to reproduce the dispositive reasons at [35]-[37]:

3. [47]

   In writing, Mr Boensch did not identify any error in this reasoning.

4. [48]

   In oral argument, Mr Boensch said that “if the major agreements of a contact (sic) are broken, then the contract is made void by the Contracts Review Act” and that the primary judge erred in stating at [37] that no relief pursuant to the Contracts Review Act 1980 (NSW) was pleaded. After the Court drew Mr Boensch’s attention to the terms of his cross-claim, he acknowledged that there was no pleaded claim for relief pursuant to the Contracts Review Act.

5. [49]

   Mr Boensch also said that Mr Bingham (and Mr Bevan) did not have an honest intention to comply with the “original negotiated cost agreement”. This seems to be a reference to the terms agreed in Annexure A to the mortgage, relevantly, (i) the quantum of legal fees capped at $100,000, (ii) Mr Boensch was not liable personally, (iii) payment could only be obtained from the Rydalmere property mortgaged to Mr Bingham, and (iv) payment was deferred until after 1 March 2024. Complaint is made that Mr Bingham and Mr Bevan made submissions to the costs assessor in 2021 that were inconsistent with the terms of the costs agreement. Assuming that this conduct is relied upon as a repudiation by Mr Bingham of the costs agreement, it is answered by her Honour’s findings at [35]-[36] that even if there was repudiatory conduct by Mr Bingham in having his costs assessed prior to the temporal limitation in cl 2 of Annexure A to the mortgage, there was no evidence that Mr Boensch accepted any repudiation so as to bring the contract contained in the mortgage to an end. That finding is not challenged.

Certificate of costs issued by Review Panel for a $Nil amount.

1. [50]

   The third reason relied upon by Mr Boensch relates to the certificate of costs issued by the Costs Review Panel for a $Nil amount. It is said that it is no longer possible for there to be another costs assessment because Mr Bingham cannot make another application for an assessment.

2. [51]

   The primary judge rejected this argument at [40]-[41] of her judgment:

3. [52]

   Mr Boensch did not identify any reason why another application for costs assessment would not be available to Mr Bingham after 1 March 2024, which as her Honour observed at [40] was noted by the Costs Review Panel in its reasons at [5.16]. No error has been demonstrated in her Honour’s reasons.

Defence by way of set-off

1. [53]

   The fourth reason relied upon by Mr Boensch is that he has an offsetting claim against Mr Bingham arising from the negligence proceeding which he commenced in the Equity Division in 2021. (An application by Mr Bingham for summary dismissal of the negligence proceeding was refused by Richmond J on 22 September 2023: Boensch v Bingham [2023] NSWSC 1152.)

2. [54]

   The primary judge dealt with the set-off argument at [51]-[55] of her judgment. After noting Mr Boensch’s reference to the High Court’s reasons in Boensch v Pascoe at [90]-[91] concerning the caveat lodged by Mr Pascoe against the title to the Rydalmere land, and the observations of Parker J in Bailey v Boensch [2020] NSWSC 1391 at [39]-[46], the primary judge rejected this argument at [54]-[55]:

3. [55]

   Again, Mr Boensch did not identify any error in her Honour’s reasons. Nevertheless, he asserted in his written submissions that “if the compensation and damages claim is successful, then [Mr Bingham] is (a) not entitled to remuneration due to wrongful advice, [and] (b) is liable of (sic) payment to [Mr Boensch] for professional misconduct of (sic) for a greater sum greater than $100,000” (emphasis added).

4. [56]

   As neither party has a judgment for a sum of money against the other, no judgments presently exist between the parties which are capable of set-off on the basis that a superior court in its inherent jurisdiction may set-off one judgment or order for payment of money against another: Australian Beverage Distributors Pty Ltd v Evans and Tate Premium Wines Pty Ltd [2006] NSWSC 560; (2006) 58 ACSR 22 at [68]-[70] (White J); Re Fewin Pty Ltd [2017] NSWSC 1093 at [9]-[16] (Brereton J). See also Derham, On the Law of Set-off (Oxford University Press, 4th Ed, 2010) at [2.103-2.104].

5. [57]

   Nor did Mr Boensch submit below that he was entitled to an equitable set-off to Mr Bingham’s claim for legal costs: see, for example, Wollongong Coal Ltd v Gujarat NRE India Pty Ltd (2019) 100 NSWLR 432; [2019] NSWCA 135 at [109]-[110], [119]. The “impeachment test” for an equitable set-off, as formulated by Lord Cottenham LC in Rawson v Samuel (1841) Cr & Ph 161; 41 ER 451 at 178 (and accepted in Lord v Direct Acceptance Ltd (1993) 32 NSWLR 362 at 367), requires that the party seeking the benefit of the equitable set-off must demonstrate:

6. [58]

   In the absence of argument below, it was not necessary for the primary judge to consider whether the impeachment test was satisfied, and if so, what would be the consequence for the caveat and the mortgage.

7. [59]

   The primary judge found that Mr Bingham had a prima facie entitlement to some payment, given that the underlying proceedings concerned the validity of the caveat claiming an equitable interest in the Rydalmere land pursuant to the mortgage; it was not necessary for her Honour to go further and quantify any likely set-off claimed by Mr Boensch by way of defence arising from the negligence proceeding. Moreover, there was no admissible evidence of the likely value of Mr Boensch’s asserted claim against Mr Bingham in the negligence proceeding.

Other matters

1. [60]

   In writing, Mr Boensch said that there was “[n]o agreement implied or otherwise, that a Caveat was permitted to be lodged on the Trust Property”, being a reference to the Rydalmere property, which Mr Boensch held on trust for his children. This submission was repeated in oral argument. Mr Boensch said that there was never any discussion about a caveat and that he did not agree to a caveat. There are two answers to this submission.

2. [61]

   One is that the submission ignored Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [57], where the High Court confirmed:

3. [62]

   In his defence and cross-claim below, Mr Boensch did not contend that there was any vitiating element or that he had a claim for equitable or statutory relief. Mr Boensch is bound by his signature on the mortgage and Annexure A.

4. [63]

   The other matter is that Mr Boensch frankly acknowledged in oral argument that cl 8 was included to permit him to refinance the Rydalmere property by the end of March 2019. Accepting that cl 8 operated as a temporal limitation on Mr Bingham lodging a caveat before the end of March 2019, there was no contractual limitation or prohibition on him lodging a caveat against the Rydalmere property after 30 March 2019, as he did on 21 June 2019.

Validity of Mr Bingham’s execution of the mortgage

1. [64]

   The fifth and alternative reason relied upon by Mr Boensch relates to the signature of Mr Bingham on the mortgage. It is said that this signature was not properly witnessed by Mr Michael Birrell, a Justice of the Peace, because Mr Birrell wrote a different JP number (191119) on the mortgage to that given in the text of his 3 December 2021 affidavit at par [2] referring to his JP number as 10119, when deposing to witnessing Mr Bingham’s signature.

2. [65]

   The primary judge dealt with this argument at [56]-[60] of her judgment. Her Honour accepted the unchallenged affidavit evidence of Mr Birrell, who described himself as a chartered accountant and registered Justice of the Peace, that he witnessed Mr Bingham’s signature and wrote his JP number next to the signature. His evidence was that he signed the mortgage at each of the places where his signature appears: at [57]. Her Honour was not prepared to make a finding that Mr Birrell’s evidence was either false or incorrect, noting that he was not cross-examined, and that Mr Boensch did not point to any evidence to suggest that Mr Birrell did not hold the qualifications, to which he deposed: at [58]. Her Honour also observed at [59] that Mr Boensch had previously positively asserted that the mortgage was binding between the parties, as Judge Manousaridis had found in the FCFCOA.

3. [66]

   The contention that Mr Bingham’s signature was not properly witnessed directs attention to the Conveyancing Act 1919 (NSW), s 38(1) which requires with respect to each person who executes a deed, that his or her signature be witnessed by an independent witness (that is, a person not a party to the deed) and that such witness attest overseeing the execution by that party of the deed by signing his or her name in the appropriate place: Mostyn v Mostyn (1989) 16 NSWLR 635 at 638-639 (Young J). Although the effect of s 38(3) is that this requirement does not apply to land under the Real Property Act, this exception was not engaged as the mortgage given by Mr Boensch was unregistered.

4. [67]

   Accordingly, the mortgage was required to be made by deed by s 23B of the Conveyancing Act, but there was no statutory or other need for Mr Birrell to sign the mortgage as a Justice of the Peace and the act of Mr Birrell as witness in describing himself as a Justice of the Peace was gratuitous and unnecessary: Graham v Hall (2006) 67 NSWLR 135; [2006] NSWCA 208 at [84]; cf subsec (1A) and (1B) of s 38 of the Conveyancing Act which extend the facilities for executing deeds in the cases of persons who, by reasons of illiteracy or physical incapacity, are unable to sign documents where the direction is given in the presence of that person that the deed is signed in the name of that person by another person and a “prescribed witness” (which includes a Justice of the Peace) attests that the signature was affixed in those circumstances. These provisions had no application in the present case.

5. [68]

   Whether the JP number next to Mr Birrell’s signature on the mortgage was correct or not, does not cast doubt on Mr Birrell’s unchallenged evidence that he witnessed Mr Bingham sign the mortgage. It was well-open to the primary judge to accept that evidence.

Conclusion and Orders

1. [69]

   The appeal has failed. There is no reason why costs should not follow the event: UCPR, r 42.1. I propose that the appeal be dismissed with costs.

2. [70]

   WHITE JA: I agree with Gleeson JA.

3. [71]

   GRIFFITHS AJA: I agree with Gleeson JA.