Reading time: 3 minutes

There is nothing worse than achieving a win in court and then being out of pocket with your legal costs. Thankfully, though, there are processes by which you can recover your costs from your opponent. A good percentage of costs disputes are resolved through negotiation between the parties. In New South Wales, there is a costs assessment process provided by the Legal Profession Act 2004 (NSW), which provides a relatively affordable and easy method of getting costs assessed and determined.

Costs Assessment Process

A party can apply to have their costs assessed to the Costs Assessment Manager for the whole or any part of their legal costs. The application is made by:

  • Completing the approved form with any supporting documentation; and
  • Filing the application with the Registry of the Supreme Court in triplicate and payment of the filing fee.

Once the application is made the other side will be given 21 days to provide a response. Regardless of whether a response is received, after 21 days the Manager will refer the application to a Costs Assessor as soon as reasonably practicable.

Costs Assessment Form

The Costs Assessment Form allows the party to make a detailed list of objections to the bill of costs, with supporting documentation. If necessary it also allows the client to apply to have the costs agreement set aside as being not fair, just or reasonable.

Supporting documentation includes:

  • The costs agreement;
  • The bill of costs; and
  • Any additional documentation that is relevant to the fairness and reasonableness of the costs

The Costs Assessment Form also:

  • Authorises a costs assessor to have access to and inspect all documents held by the applicant or the law practice concerning the relevant matter;
  • States that there is no reasonable prospect of settlement of the matter by mediation.

Costs Assessment Criteria

The costs assessor will consider a number of factors including:

  • Whether or not it was reasonable to carry out the work to which the legal costs relate
  • Whether the work was carried out in a reasonable manner
  • Fairness and reasonableness of the amount of legal costs about the work, to which the costs assessor may take into account:
  • Compliance with relevant legislation and legal profession rules
  • Costs disclosures made
  • Relevant advertisements made regarding the law practice’s costs or skills
  • Skill, labour and responsibility showed by the law practice
  • Whether work was done within the scope of the retainer
  • Complexity of the matter
  • Quality of work
  • Timeframe that the work was done in
  • Any other relevant circumstances

Determination

The Costs Assessor will either confirm the original bill or, if the assessor feels the costs are unfair or unreasonable, substitute an amount that the assessor feels is a fair and reasonable amount.

Section 372 of the Legal Profession Act states a costs assessor’s determination of an application is binding on all parties and is final. However, either party can apply for a review of the determination within 30 days to the Manager under section 373. The determination can then be registered as a judgment in the Court and enforced as you would an ordinary judgment.

LegalVision has a team of experienced litigation lawyers with extensive experience with Costs Assessments. If you have any questions about the process or filling out a Costs Assessments form, get in touch with us.

Webinars

Construction Contract Essentials

Thursday 12 August | 11:00 - 11:45am

Online
Understand how construction contracts are drafted and how to protect your construction business.
Register Now

Startup 101: Understanding Cap Tables and ESOPs

Thursday 19 August | 11:00 - 11:45am

Online
Cap tables and employee share option plans are essential for fast-growing startups. Learn more with this free webinar.
Register Now

Expanding to NZ: Structuring Your Business For Success

Thursday 26 August | 2:00 - 2:45pm

Online
Launching a business in New Zealand? Understand how to structure your business for success with this free webinar.
Register Now

Preventing Modern Slavery: Your Business’ Legal Obligations

Thursday 9 September | 11:00 - 11:45am

Online
Are you an Australian business with $100m+ annual consolidated revenue? Learn how to determine if you are a modern slavery reporting entity and your obligations under the legislation with this free webinar.
Register Now

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. From just $119 per week, get all your contracts sorted, trade marks registered and questions answered by experienced business lawyers.

Learn more about LVConnect

Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • 2020 Excellence in Technology & Innovation – Finalist – Australasian Law Awards 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice – Winner – Australasian Lawyer 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards 2021 Law Firm of the Year - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer