Part 65 Costs – Quantification

Scope of this Part

65.1

1. This Part deals with the way in which any costs awarded by the court are quantified.

Basis of quantification

65.2

1. If the court has a discretion as to the amount of costs to be allowed to a party, the sum to be allowed is –
   1. the amount that the court deems to be reasonable were the work to be carried out by a legal practitioner of reasonable competence; and
   2. which appears to the court to be fair both to the person paying and the person receiving such costs.
2. If the court has a discretion as to the amount of costs to be paid to a legal practitioner by his or her client the sum allowed is –
   1. the amount that the court deems to be reasonable; and
   2. which appears to be fair both to the legal practitioner and the client.
3. In deciding what would be reasonable the court must take into account all the circumstances, including –
   1. any order that has already been made;
   2. the care, speed and economy with which the case was prepared;
   3. the conduct of the parties before as well as during the proceedings;
   4. the degree of responsibility accepted by the legal practitioner;
   5. the importance of the matter to the parties;
   6. the novelty, weight and complexity of the case;
   7. the time reasonably spent on the case; and
   8. in the case of costs charged by a legal practitioner to his or her client –
      1. any agreement about what grade of legal practitioner should carry out the work;
      2. any agreement that may have been made as to the basis of charging; and
      3. whether the legal practitioner advised the client and took the client’s instructions before taking any unusual step or one which was unusually expensive having regard to the nature of the case.

Ways in which costs are to be quantified

65.3

1. Costs of proceedings under these Rules are to be quantified as follows –
   1. where rule 65.4 applies – in accordance with the provisions of that rule; and
   2. in all other cases if, having regard to rule 64.6, the court orders a party to pay all or any part of the costs of another party – in one of the following ways –
      1. costs determined in accordance with rule 65.5 (“prescribed costs”);
      2. costs in accordance with a budget approved by the court under rule 65.8 (‘budgeted costs”); or
      3. (if neither prescribed not budgeted costs are applicable), by assessment in accordance with rules 65.11 and 65.12.

Fixed costs

65.4

1. A party is entitled to the costs set out in column 3 of Appendix A to this Part in the circumstances set out in column 2 of that Appendix.
2. The court may however direct that some other amount of costs be allowed for the work covered by any item in Part 2 of Appendix A.
3. If it does so, the court must assess such costs.
   • Rule 65.11 and 65.12 deals with the assessment of costs.

Prescribed costs

65.5

1. The general rule is that where rule 65.4 does not apply and a party is entitled to the costs of any proceedings, those costs must be determined in accordance with Appendices B and C to this Part and paragraphs (2) to (4) of this rule.
2. The “value” of the claim, whether or not the claim is one for a specified or unspecified or unspecified sum, coupled with a claim for other remedies is to be decided in the case of the claimant or defendant –
   1. by the amount agreed or ordered to be paid; or if the claim is for damages and the claim form does not specify an amount that is claimed, such sum as may be agreed between the party entitled to, and the party liable to, such costs or, if not agreed, a sum stipulated by the court as the value of the claim; or
   2. if the claim is not for a monetary sum it is to be treated as a claim for $50,000 unless the court makes an order under Rule 65.6(1)(a).
3. The general rule is that the amount of costs to be paid is to be calculated in accordance with the percentages specified in column 3 of Appendix B against the appropriate value.
4. The court may –
   1. award a proportion only of such sum having taken into account the matters set out in rule 64.6(4) and (5); and
   2. order a party to pay costs –
      1. from or to a certain date; or
      2. relating only to a certain distinct part of the proceedings, in which case it must    specify the proportion of the fixed costs which is to be paid by the party liable to pay such costs and in so doing may take into account the table set out in Appen­dix C.

 Applications to determine value of claim for purpose of prescribed costs

65.6

1. A party may apply to the court at any time before trial –
   1. to determine the value to be placed on a case which has no monetary value; or
   2. where the likely value is known, to direct that the prescribed costs to be calculated on the basis of some higher or lower value.
2. If an application is made for costs to be prescribed at a higher level, rules 65.8(4)(c) and 65.9 apply.

What is included in prescribed costs

65.7

1. Prescribed costs include all work that is required to prepare the pro­ceedings for trial including, in particular, the costs involved in –
   1. instructing any expert;
   2. considering and disclosing any report made by the expert;
   3. arranging the expert witness’ attendance at trial; and
   4. attendance and advocacy at the trial including attendance at any case management conference or pre-trial review.
2. Prescribed costs exclude –
   1. expert’s fees for preparing a report and attending any conference, hearing or trial;
   2. costs incurred in enforcing any order (which are generally fixed in accordance with rule 65.4 but may, in certain cases, be assessed in accordance with rule 65.12);
   3. the cost of obtaining a daily transcript of the evidence if the trial judge certifies this as a reasonable disbursement in all the circum­stances of the case; and
   4. the making or opposing of any application except at a case management conference or pre-trial review.

Budgeted costs

65.8

1. A party may apply to the court to set a costs budget for the proceedings.
2. An application for a costs budget must be made at or before the first case management conference.
3. The application may be made by either or both parties but an order setting a costs budget may not be made by consent unless all relevant parties are bodies corporate.
4. An application for a costs budget must be accompanied by –
   1. a statement of the amount that the party seeking the order wishes to be set as the costs budget;
   2. a statement showing how the budget has been calculated and setting out in particular –
      1. a breakdown of the costs incurred to date;
      2. the anticipated amount of any expert witness fees and whether or not such fees are included in the budget;
      3. the disbursements other than expert fees that are included in the budget;
      4. the fees that are anticipated to be paid to any legal practitio­ner other than the legal practitioner on record for advocacy (including advocacy by a Queen’s Counsel, a State Counsel or more than one counsel), advising or settling any document;
      5. the hourly rate charged by the legal practitioner (or other basis of charging);
      6. a statement of the number of hours of preparation time (including attendances upon the party, any witness and any  other party to the proceedings) that the legal practitioner for the party making the application has already spent and anticipates will be required to bring the proceedings to trial; and
      7. what procedural steps or applications are or are not included in the budget; and
   3. the written consent from the client in accordance with rule 65.9.5)
5. A party may apply to vary the terms of an order made under this rule at any time prior to the commencement of the trial but no order may be made increasing the amount of the budgeted costs unless the court is satisfied that there has been a change of circumstances which became known after the order was made.

Client’s consent to application for budgeted costs

 65.9

1. The court may not make an order for budgeted costs unless –
   1. the court satisfies itself that each party fully understands the consequences of the order that is being sought as to –
      1. the party’s liability for costs to the party’s own legal practitio­ner, whether the party obtains an order for costs against any other party or not;
      2. the party’s liability to pay costs in the budgeted sum to the other party if that other party obtains an order for costs against the party; and
      3. what the party’s liability might be under paragraphs (i) and (ii) if rule 65.5 applied;
   2. the  consent under sub-paragraph (c) is in a separate document which –
      1. deals only with the question of budgeted costs;
      2. gives an estimate of the total costs of the proceedings as between the legal practitioner  and the client;
      3. is signed by the party in person;
      4. states the legal practitioner’s estimate of what the prescribed costs appropriate to the proceedings would be; and
      5. sets out the basis of that estimate including the amount of any hourly charge;
   3. there has been filed a document recording the express consent of the party in person to the application and to any order made as a consequence of the application; and
   4. the party seeking the order is present in person when the application is made except where –
      1. that party is a body corporate; or
      2. for some exceptional reason this is impracticable.
2. The written consent of the client must not be disclosed to the other party.
3. This rule also applies to any other party personally who consents to or does not oppose an order for a costs budget.

What is included in costs budget

65.10

1. Unless the costs budget approved by the court specifies otherwise, rule 65.7 applies to budgeted costs as it does to prescribed costs.

Assessed costs – procedural applications

65.11

1. On determining any application except at a case management confer­ence, pre-trial review or the trial, the court must –
   1. decide which party, if any, should pay the costs of that application;
   2. assess the amount of such costs; and
   3. direct when such costs are to be paid.
2. In deciding which party, if any, should pay the costs of the application the general rule is that the unsuccessful party must pay the costs of the successful party.
3. The court must take into account all the circumstances including the factors set out in rule 64.6(6) but where the application is –
   1. an application to amend a statement of case;
   2. an application to extend the time specified for doing any act under these Rules or an order or direction of the court;
   3. an application for relief under rule 26.8 (relief from sanctions); or
   4. one that could reasonably have been made at a case management conference or pre-trial review; the court must order the applicant to pay the costs of the respondent unless there are special circumstances.
4. In assessing the amount of costs to be paid by any party the court must take into account any representations as to the time that was reason­ably spent in making the application and preparing for and attending the hearing and must allow such sum as it considers fair and reasonable.
5. A party seeking assessed costs must supply to the court and to all other parties a brief statement showing –
   1. any counsel’s fees incurred;
   2. how that party’s legal representative’s costs are calculated; and
   3. the disbursements incurred.
6. The statement under paragraph (5) must comply with any relevant practice direction.
7. The costs allowed under this rule may not exceed one tenth of the amount of the prescribed costs appropriate to the claim unless the court considers that there are special circumstances of the case justifying a higher amount.

Assessed costs – general

65.12

1. This rule applies where costs fall to be assessed in relation to any matter or proceedings, or part of a matter or proceedings, other than a procedural application.
2. If the assessment relates to part of court proceedings it must be carried out by the judge, master or registrar hearing the proceedings.
3. If the assessment does not fall to be carried out at the hearing of any proceedings then the person entitled to the costs must apply to a master or the registrar for directions as to how the assessment is to be carried out.
4. The application must be accompanied by a bill or other document showing the sum in which the court is being asked to assess the costs and how such sum was calculated.
5. On hearing any such application the master or registrar must either –
   1. assess the costs if there is sufficient material available to do so; or
   2. fix a date, time and place for the assessment to take place.
6. The master or registrar may direct that the party against whom the bill is assessed pay the costs of the party whose bill is being assessed and, if so, must assess such costs and add them to the costs ordered to be paid.

 Costs of Proceedings in Court of Appeal

65.13

1. The general rule is that the costs of any appeal must be determined in accordance with rules 65.5, 65.6 and 65.7 and Appendix B but the costs must be limited to two thirds of the amount that would otherwise be allowed.
2. The Court of Appeal may, if the circumstances of the appeal or the   justice of the case require, depart from the general rule and, in such a case, it may –
   1. make an order for budgeted costs whether on an application made in accordance with rules 65.8 and 65.9 or otherwise; or
   2. make such other order as it sees fit.

Costs capping orders – General

65.14

1. A costs capping order is an order limiting the amount of future costs (including disbursements) which a party may recover pursuant to an order for costs subsequently made.
2. In this Rule, “future costs” means costs incurred in respect of work done after the date of the costs capping order but excluding the amount of any additional liability.
3. A cost capping order may be in respect of –
   1. the whole litigation; or
   2. any issues which are ordered to be tried separately.
4. The court may at any stage of proceedings make a costs capping order against all of any of the parties, if –
   1. it is in the interests of justice to do so;
   2. there is a substantial risk that without such an order costs will be disproportionately incurred; and
   3. it is not satisfied that the risk in sub-paragraph (b) can be adequately controlled by –
      1. case management directions or orders made under Part 26; and
      2. detailed assessment of costs.
5. In considering whether to exercise its discretion under this Rule, the court will consider all the circumstances of the case, including –
   1. whether there is a substantial imbalance between the financial position of the parties;
   2. whether the costs of determining the amount of the cap are likely to be proportionate to the overall costs of the litigation;
   3. the stage which have been incurred to date and the future costs.
6. A costs capping order, once made, will limit the costs recoverable by the party subject to the order unless a party successfully applies to vary the order. No such variation will be made unless –
   1. there has been a material and substantial change of circumstances since the date when the order was made; or
   2. there is some other compelling reason why a variation should be made.

Application for a costs capping order

65.15

1. An application for a costs capping order muse be made on notice in accordance with Part 11.
2. The application must –
   1. set out –
      1. whether the costs capping order is in respect of the whole of the litigation or a particular issue which is ordered to be tried separately; and
      2. why a costs capping order should be made; and
   2. be accompanied by an estimate of cost setting out –
      1. the costs (and disbursements) incurred by the applicant to date; and
      2. the costs (and disbursements) which the applicant is likely to incur in the future conduct of the proceedings.
   3. The court may give directions for the determination of the application and such directions may –
      1. direct any party to the proceedings –
         1. to file a schedule of costs;
         2. to file written submissions on all or any part of the issues arising;
      2. fix the date and time estimate of the hearing of the application;
      3. include any further directions as the court sees fit.

Application to vary a costs capping order

65.16

1. An application to vary a costs capping order must be made by application notice pursuant to Part 11.

Appendix A – Fixed Costs

Part 1

1. This Part of the Appendix sets  out the fixed costs applicable to a claim for a specified sum of money –
   1. which a defendant who does not defend must pay to the claimant, in addition to the amount claimed and interest and the court fees paid by the claimant, in order to avoid judgment being entered under Part 12. These sums are to be entered on the claim form. The table also deals with claims for possession of land or delivery of goods and an application for an order for attachment of debts – Table 1 refers; and
   2. which a claimant is entitled to include as costs in any default judgment under Part 12 in addition to the costs set out in Table 1 Table 2 refers.

 Scale of Fixed Costs

 Table 1

1. This table shows the amounts to be entered on a claim form or provisional attachment of debts order in respect of a legal practitioner’s charges in –
   1. a claim for payment of a specified sum of money;
   2. attachment of debt proceedings; or
   3. a claim for the recovery of land.
2. In addition to the fixed costs the appropriate court fee is to be allowed together with the sum of $100 for personal service of the claim form.

 Table 2

1. This table shows additional costs which may be added on the entry of a default judgment under Part 12 or a judgment on admissions under Part 14 for a specified sum of money.

 Part 2

Miscellaneous enforcement proceedings

1. The following table shows the amount to be allowed in respect of a legal practitioner’s charges in the circumstances set out. The appropriate court fee is to be added. The court may order that the costs of any such matter be assessed.

“APPENDIX B

 Scale of prescribed costs

 Column 1                               Column 2                                                                        Column 3

Value of Claim                                                                                                                           Percentage

(1)                                            Not exceeding $100,000                                                          15%(2)                                            Exceeding 100,000 but not exceeding $250,000               12.5%           (3)                                            Exceeding 250, 000 but not exceeding $500,000             10%(4)                                            Exceeding 500,000 but not exceeding $1, 000, 000         7%(5)                                            Exceeding 1, 000, 000 but not exceeding $2, 500, 000    3%                 (6)                                            Exceeding 2,500,00                                                                  0.5%

Note: The costs for each staged of the scale are cumulative

(Example         Claim for         $750,000

First                 $100, 000        $  15,000

Next                 $150,000         $  18,750

Next                 $250,000         $  25,000

Next                 $250,000         $  17,500

Total                $76, 250)”;      and

APPENDIX C

Prescribed Costs: Percentage to be allowed at various stages of claim

1. Table showing the percentage of the prescribed costs to be allowed under Appen­dix B where a claim concludes prior to trial.

(Example

Claim for $ 750,000 — full costs as in Appendix 3 —$ $76,250

Claim discontinued after case management conference —

defendant entitled to 70% of total costs — $53,375)