Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 17A – Costs
- Part 1 – PreliminaryPart 2 – Costs of a Proceeding
- [680] Entitlement to recover costs
- [681] General rule about costs
- [682] General provision about costs
- [683] Costs in proceeding before Magistrates Court
- [684] Costs of question or part of proceeding
- [685] Costs if further proceedings become unnecessary
- [686] Assessment of costs without order
- [687] Assessed costs to be paid unless court orders otherwise
- [688] Costs when proceeding removed to another court
- [689] Costs in an account
- [690] Lawyer’s delay or neglect
- [691] Australian lawyer’s costs
- [692] Amendment
- [693] Application in a proceeding
- [694] Default judgment
- [695] Extending or shortening time
- [696] Costs of inquiry to find person
- [697] Costs of proceeding in wrong court
- [698] Reserved Costs
- [699] Receiver’s costs
- [700] Trustee
- [700A] Estates of deceased persons and trusts
- [701] Application of div 2
- [702] Standard basis of assessment
- [703] Indemnity basis of assessment
- [704] Trustee
- [705] Costs statement
- [706] Objection to costs statement
- [707] Consent order
- [708] Default assessment if no objection to costs statement
- [709] Setting aside default assessment
- [709A] Failure to serve costs statement
- [710] Application for costs assessment
- [711] Service of application
- [712] Agreed costs assessor
- [713] Costs assessor if no agreement
- [713A] Service of order appointing costs assessor
- [714] Powers of an assessing registrar
- [715] Powers of a costs assessor
- [716] No participation by a party
- [717] Issue or question arising
- [718] Notice of adjournment
- [719] Conflict of interest
- [720] Procedure on assessment
- [721] Discretion of a costs assessor
- [722] Assessment must be limited
- [723] Disbursement or fee not paid
- [724] Professional charges and disbursements
- [725] Parties with same lawyer
- [726] Counsel’s advice and settling documents
- [727] Evidence
- [728] Solicitor advocate
- [729] Premature brief
- [730] Retainer of counsel
- [731] Refresher fees
- [732] Costs of assessment
- [733] Offer to settle costs
- [734] Acceptance of offer to settle costs
- [735] Reduction of more than 15%
- [736] Agreement as to costs
- [737] Certificate of assessment
- [737A] Information about outcome of costs assessment
- [738] Written reasons for decision
- [739] Application of div 6
- [740] Judgment for amount certified
- [741] Costs may be set off
- [742] Review by court
- [743] Definition for pt 4
- [743A] Application for costs assessment
- [743B] If recovery proceedings started
- [743C] Court may direct preparation of itemised bill
- [743D] Notice of application
- [743E] Agreed costs assessor
- [743F] Costs assessor if no agreement
- [743G] Directions hearing
- [743H] Application to court for directions after certificate of assessment filed
- [743I] Application of other rules
- [743J] Eligibility
- [743K] Application
- [743L] Appointment
- [743M] Ongoing disclosure of adverse matters and updated details
- [743N] List of costs assessors
- [743O] Charges for costs assessments
- [743P] Ending an appointment upon request
- [743Q] Ending an appointment for sufficient reason
- [743R] Effect of ending of appointment or notice about possible ending of appointment
- Division 1 – Costs of a proceeding generally
- Division 2 – Basis of assessment of costs of a party in a proceeding
- Division 1 – Before Application
- Division 2 - Application
- Division 3 - Assessment
- Division 4 - Costs of assessment and offers to settle
- Division 5--Certificate of costs assessor
- Division 6 – After assessment
[678] Application of ch 17A go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[679] Definitions for ch 17A go to top
Proceedings brought on a guarantee are not proceedings to enforce a legal liability to pay costs, such as to make the person a “party” for the purposes of r 679: Thomas v Balanced Securities Ltd [2012] 2 Qd R 482 [59] (White JA, Wilson AJA & Martin J agreeing).
It is arguable that “party” in r 679 may be broad enough to encompass the person standing behind the litigation: Thomas v Balanced Securities Ltd [2012] 2 Qd R 482 [59] (White JA, Wilson AJA & Martin J agreeing), citing Knight v FP Special Assets Ltd (1992) 174 CLR 178.
Division 1 – Costs of a proceeding generally
[680] Entitlement to recover costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[681] General rule about costs go to top
The discretion to award costs is unfettered but must be exercised without caprice and by having regard only to relevant considerations: Herrod v Johnston [2013] QCA 184, [24] (Muir and Gotterson JJA, Applegarth J), citing Oshlack v Richmond River Council (1998) 193 CLR 72 at 96.
The general principle is that costs follow the event. This principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. Oshlack v Richmond River Council (1998) 193 CLR 72 (McHugh J) at [67], quoted in New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119 (Bowskill J); Rintoul v State of Queensland [2018] QCA 20 at [40].
In exercising its discretion in relation to costs, the court is entitled to take an impressionistic and pragmatic view as to what were the real heads of controversy in the litigation and will strive to avoid assessments of costs in a complicated form, according to issues in the technical sense. However, this does not detract from the general rule that costs follow the event, or relieve a party which seeks to invoke the discretion under r 684 from the requirement to identify the “particular question” in a proceeding, or the “particular part” of a proceeding, in respect of which the court is asked to make an order for costs: Vision Eye Institute Ltd v Kitchen (No 3) [2015] QSC 164, [13] (Applegarth J).
As is implicit in r 681(1), the court has a discretion to make another order if that is required in the interests of justice where, for example, “the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; or obtains relief which the unsuccessful party had already offered in settlement of the dispute”: West v Blackgrove [2012] QCA 321, [49] (Muir JA, Holmes JA & Daubney J agreeing), citing Oshlack v Richmond River Council (1998) 193 CLR 72 at [69].
The general or usual order as to costs, that a successful party in litigation is entitled to an order of costs in its favour, is grounded in reasons of fairness and policy. There are limited exceptions to the usual order as to costs, which focus “on conduct of the successful party which disentitles it to the beneficial exercise of the discretion” or on the existence of “special” or “exceptional” circumstances: Bucknell v Robins [2004] QCA 474, [17] (Philippides J, McMurdo P & Williams JA agreeing), citing Oshlack v Richmond River Council (1998) 193 CLR 72; see also Oldfield v Gold Coast City Council [2009] QCA 124 [71] (Muir JA, White & Wilson JJ).
Because the basis of a costs order is compensatory rather than punitive, the fact that an unsuccessful party is not legally represented or is impecunious or otherwise disadvantaged is not in itself a ground for refusing to make a costs order in favour of the successful party: Sochorova v Commonwealth of Australia [2012] QCA 152, [17] (Wilson J, Muir & Fraser JJA agreeing).
The discretionary power in r 681 is wide enough to support an order that one party contribute to another in respect of costs ordered to be paid by the latter to a third party: Robinson v Ware [2012] QCA 70, [95] (Fryberg J).
The disproportionate amount of time consumed on the trial by unmeritorious issues may justify a departure from the normal order that costs follow the event: McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152 [14] (Muir JA, Cullinane & Douglas JJ agreeing).
In an appropriate case, an order for costs can be made pursuant to s15 of the Civil Proceedings Act 2011 (Qld) and r 681, in respect of a proceeding commenced in the Supreme Court of Queensland under s22 of the Dangerous Prisoners’ (Sexual Offenders) Act 2003 (Qld): Attorney-General (Qld) v Fardon [2015] QSC 20, [22] (P Lyons J).
Costs follow the “event”
Costs follow the “event” which, when read distributively, means the events or issues, if more than one, arising in the proceedings: Interchase Corporation Limited (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26; [2001] QCA 191 [84] (McPherson JA), in respect of the former r 689; cited in Mio Art Pty Ltd v Mango Boulevard Pty Ltd (No 3) [2013] QSC 95 [4] (P McMurdo J) in respect of the current r 681.
It appears to follow from the decision of the Court of Appeal in Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26 and by reference to the language of rr 681 and 684, that, under the current rules, events in an action are to be identified by reference to individual issues or questions in the action, and the event is not simply the result or outcome of the action; and, at least by implication, that the predilection for making orders for costs by reference to success on individual events within the action remains: McDermott v Robinson Helicopter Co (No 2) [2015] 1 Qd R 295; [2014] QSC 213, [30] (P Lyons J).
Although r 681(1) speaks of costs following the “event”, that is not a word which is given any particular meaning in either the UCPR or other statutory provisions. However, the use of that word in the context of the court’s power to make an order for costs has a rich history, explained in Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26. For the purpose of making an order for costs, the court has the power to treat each separately determined issue as an event. The power to separate the events in a proceeding for the purpose of making an order for costs is further informed by r 684: Gladstone Area Water Board v AJ Lucas Operations Pty Ltd [2015] QSC 52, [11] (Jackson J).
The application of the general principle that costs follow the event may lead to costs orders which reflect different results on separate events or issues, unless the court considers that some other order is more appropriate: Sequel Drill and Blast Pty Ltd v Whitsunday Crushers Pty Ltd (No 2) [2009] QCA 239, [4] (de Jersey CJ, Fraser & Chesterman JJA), citing Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26 at [84].
Rules 681(1) and 682(2) recognise that that the costs of an application in a proceeding may be separately dealt with in the ordinary case: Sino Iron Pty Ltd v Palmer (No 4) [2015] QSC 189, [12] (Jackson J).
It is common that a judgment dismissing a claim is treated as an “event”: Sino Iron Pty Ltd v Palmer (No 4) [2015] QSC 189, [13] (Jackson J).
Costs order where party fails on some issues
The “event” is not to be determined merely by reference to the judgment or order obtained by the plaintiff or appellant. However, a party which has not been entirely successful is not inevitably or even, perhaps, normally deprived of some of its costs: Alborn v Stephens [2010] QCA 58, [8] (Muir JA, Holmes JA & Daubney J agreeing).
Ordinarily, the fact that a successful plaintiff fails on particular issues does not mean that it should be deprived of some of its costs. However, a successful party that has failed on certain issues may not only be deprived of the costs of those issues, but may be ordered as well to pay the other party’s costs of them: Kosho Pty Ltd v Trilogy Funds Management Ltd (No 2) [2013] QSC 170 [5] (Applegarth J), citing AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd (No 2) [2009] QSC 75; Hughes v Western Australian Cricket Association (Inc.) (1986) ATPR 40-748.
Multiple Parties
Generally in multiple-party litigation, an order that costs be paid by two or more parties to the litigation should create a joint and several liability for the payment of those costs: Cart Provider Pty Ltd v Park [2017] QSC 27 (Bond J) at [10]-[11].
Where there are a number of parties who unsuccessfully brought or defended proceedings, but one party was only involved only in a discrete claim, it may be appropriate to order that party to pay only a proportion of the opposite party’s costs: Bert v Red 5 Limited [2017] QSC 8 (Applegarth J) at [13].
Where one defendant seeks contribution from another defendant pursuant to Law Reform Act 1995 (Qld) ss 6 and 7, the application of those provisions also determined how they were to share the costs of the proceedings: Kerle v BM Alliance Coal Operations Pty Ltd (No 2) [2017] QSC 7 (McMeekin J) at [57].
Costs orders where Calderbank offer has been made
The making of a Calderbank offer is one circumstance in which the court might exercise its discretion to make an order different from the “usual” order that costs follow the event on the standard basis: Queensland v Hayes [2013] QSC 80 [8] (Philippides J). An offer to settle purportedly made under UCPR r 360 or 361, but which does not attract the specific costs provisions of those rules, may have a similar effect on costs: Gramotnev v Queensland University of Technology (No 2) [2018] QSC 81 Bert & Ors v Red 5 Limited & Anor [2017] QSC 8.
The fact that a Calderbank offer to settle is not accepted and the offeree ends up worse off than if the offer had been accepted is a matter which the court may have regard to in deciding whether to exercise the costs discretion to depart from the usual order, but it does not automatically bring a different order as to costs: Queensland v Hayes [2013] QSC 80 [11] (Philippides J), citing SMEC Testing Pty Ltd v Campbelltown City Council [2000] NSWCA 323; Jones v Bradley (No 2) [2003] NSWCA 258.
In considering whether the discretion ought to be exercised other than in the usual manner, regard will be had as to whether the Calderbank offer made was a genuine one. Whether or not an offer is viewed as genuine depends on the circumstances of the case: Queensland v Hayes [2013] QSC 80 [12] (Philippides J), citing Leichhardt Municipal Council v Green [2004] NSWCA 341. The offeree ought to be provided with an appropriate opportunity to consider and deal with the offer: Queensland v Hayes [2013] QSC 80 [13] (Philippides J), citing Elite Protective Personnel v Salmon [2007] NSWCA 322.
It will be relevant to consider whether the rejection of the offer was unreasonable in the circumstances of the case: Queensland v Hayes [2013] QSC 80 [14] (Philippides J), citing Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435.
An imprudent rejection of an offer may provide a ground on which to order indemnity costs. Six main factors are relevant to the determination of whether an offer has been imprudently rejected: Gramotnev v Queensland University of Technology (No 2) [2018] QSC 81 (Flanagan J) at [10] quoting Mott v Philip (No 2) [2017] QSC 255 (McMeekin J) at [23]. Those factors are:
- the stage of proceeding at which the offer was received;
- the time allowed to the offeree to consider the offer;
- the extent of the compromise offered;
- the offeree’s prospects of success, assessed as at the date of the offer;
- the clarity with which the terms of the offer were expressed;
- whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.
Special considerations may apply to litigants in person, because of their lack of expertise: Mowen v Rockhampton Regional Council [2018] QSC 44 (McMeekin J) at [11]-[14].
Costs orders against non-parties
Rule 681 provides the statutory basis for the making of a costs order against a non-party: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84 [37] (Martin J).
There is no doubt that courts have a general discretion to award costs against non-parties. So much is encompassed in the term "other orders" in r 681 and Knight v FP Special Assets Ltd (1992) 174 CLR 178. But non-party costs orders are exceptional, as the authorities and the terms of r 681 recognise. They are only made where the interests of justice clearly warrant such an order: Plante v James [2011] QCA 109, [3]-[4] (McMurdo P).
A non-party costs order may be made against a person associated with either a claimant or a defendant to proceedings: Murphy v Mackay Labour Hire Pty Ltd [2018] QCA 90 at [28].
One category of case in which it may be appropriate to make a non-party costs order is where: (a) the party to the litigation is an insolvent person or man of straw; where the non-party has played an active part in the conduct of the litigation; (c) where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation; and (d) the interests of justice require that the order be made: Murphy v Mackay Labour Hire Pty Ltd [2018] QCA 90 at [19], [28]; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 192-193.
In relation to the second of these elements, a director of a corporate party will not be subject to a non-party cost order simply because he or she has actively promoted the company’s interests in pursuing litigation: Plante v James [2011] QCA 109 at [4]. However, the position is different if the director acted to ensure that there was financial support available to the corporation to continue the litigation: Murphy v Mackay Labour Hire Pty Ltd [2018] QCA 90 at [42].
In relation to the third of these elements, a non-party who controls over a corporate party as if he or she were a controlling member of the corporation may be characterised as having an interest in the subject matter of the litigation: Murphy v Mackay Labour Hire Pty Ltd [2018] QCA 90 at [43].
In The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84, Martin J set out some fundamental premises upon which a discretion to order costs against a non-party should be exercised (at [38], citations omitted):
(a) A non-party costs order will ordinarily be made “when, in the circumstances of the particular case, it is just and equitable that a non-party pay the costs of a party to the litigation”. Put another way, a court will ordinarily not make a non-party costs order unless the interests of justice justify a departure from the general rule that only parties to proceedings are subject to costs orders.
(b) As there is no doubt as to the jurisdiction to make such an order, the circumstances in which an order of this nature will be made are those which are confined by questions of discretion. Many different ways of expressing the degree of caution necessary have been set out in the authorities. They include that any such application should be treated “with considerable caution”. Such orders should be granted only when “exceptional circumstances make such an order reasonable and just”. Such orders should be granted only “sparingly”.
(c) As with any discretion, it must be “exercised judicially and in accordance with general legal principles pertaining to the law of costs”. The exercise of the discretion is accurately described by the author of “Law of Costs”: “It inevitably comes down to a fact-specific inquiry informed by various relevant considerations.”
A party who sought and obtained security for costs is not precluded from subsequently obtaining a costs order against a non-party. Rather, the omission to make an application for security can be a strong argument against exercising the discretion against a non-party: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84, [66] (Martin J).
Obtaining one or more orders for security for costs will not, if other matters warrant it, stand in the way of obtaining an order against a non-party for the difference between the costs which have been secured and those which have been assessed: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84 [67] (Martin J).
A successful application for security for costs can constitute sufficient notice to a non-party that it is at risk of having a costs order made against it: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84 [72] (Martin J).
It is a matter of judgment whether a non-party should have been warned in advance of the risk that an order for costs might be sought against him or her. Failure to do so is one of the factors to be taken into account and, in some cases, may be a factor counting against exercising the discretion in the applicant’s favour. In other cases, it may be apparent that it is not unjust to order costs, even though the non-party has not specifically been put on notice, for example, if the person was the force behind continuation of the action in circumstances where the prospects of success were objectively minimal: Tsui v Westpac Banking Corporation [2002] 2 Qd R 335, [36] (Mackenzie J, Williams JA agreeing). See also The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84 [68] (Martin J), Murphy v Mackay Labour Hire Pty Ltd [2018] QCA 90 at [44]-[47].
Costs in Judicial Review Proceedings
The terms of s 49(1)(d) of the Judicial Review Act 1991 (Qld) – which authorise orders for one party to be indemnified for costs – only applies prospectively: New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119 (Bowskill J) at [42] (fn 22); Attorney-General for the State of Queensland v Barnes [2014] QCA 152 at [44].
The terms of s 49(1)(e) of the Judicial Review Act 1991 (Qld) – which authorise orders for a party to bear their own costs – have been held to apply at any time: Burragubba v Minister for Natural Resources and Mines (No 2) [2017] QSC 265 (Bond J) at [11]; Foster v Shaddock [2016] QCA 163.
Where a prospective costs order is not made under s 49 of the Judicial Review Act 1991 (Qld), the costs of a judicial review proceeding are to be determined under r 681. However, considerations which would be relevant under a s 49 application may have relevance to an application under r 681: Hytch v O’Connell (No 2) [2018] QSC 99 at [5]-[6], [8] (Applegarth J); Attorney-General for the State of Queensland v Barnes [2014] QCA 152 at [44].
The fact that an unsuccessful application for judicial review raised important issues of statutory construction, and was reasonably arguable, does not necessarily displace the rule that costs should follow the event, which has an important basis in fairness and public policy. However, it may result in some moderation of the costs order: Hytch v O’Connell (No 2) [2018] QSC 99 at [7]-[9] (Applegarth J).
A successful application for judicial review does not usually result in a costs order against a decision-maker who, consistently with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, does not participate in the hearing: New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119 (Bowskill J) at [41] (fn 21).
A successful application for judicial review does not necessarily result in a costs order against an interested party who opposed the order being made, as that party may not have added to the costs of the proceedings and may have served a valuable role as a contradictor: New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119 (Bowskill J) at [43]-[44].
In relation to the position of an intervener, the fact that the intervener is a necessary party and provides important assistance to the court does not necessitate an order that the intervener recover costs. As a general rule, a successful intervener can recover costs only if the intervention was necessary to protect an interest not common with the main parties: Hytch v O’Connell (No 2) [2018] QSC 99 at [2] (Applegarth J).
Practitioner Admission Matters
An unsuccessful application for admission as a legal practitioner may result in an adverse costs order against the applicant, but the Legal Practitioners Admission Board will not necessarily receive a full award of its costs on a standard basis: Re Ayobi [2018] QCA 1 at [15]-[23].
In an application for admission as a legal practitioner, the Legal Practitioners Admission Board is not itself exposed to an order for costs, absent misconduct: Re Ayobi [2018] QCA 1 at [17].
Change of Circumstances
Where a change in circumstances after the commencement of proceedings results in an application being dismissed, it may be appropriate for the applicant to be awarded their costs up to a particular point and then for the applicant to pay the respondent’s costs beyond that point: Posgate v Hanson (No 2) [2018] QSC 120 (Henry J) at [3]-[18].
Public Interest Considerations
Although in some contexts the “public interest” may be a relevant consideration in exercising the discretionary power to order a party to pay another party’s costs of a proceeding, there are difficulties associated with the concept of “public interest litigation”. However, whatever the scope of the discretionary power to order costs in “public interest litigation”, when a constitutional challenge to the validity of legislation is raised in private litigation, costs appear invariably to follow the event: Electoral Commission of Queensland v Awabdy (No 2) [2018] QSC 52.
Self-Represented Litigants
A self-represented litigant, who is not a legal practitioner, is not entitled to recover monies to compensate him or her for the time and labour involved in dealing with the proceedings: Reihana v QCAT Client Services Manager [2017] QCA 117 at [18].
[682] General provision about costs go to top
Rules 681(1) and 682(2) recognise that that the costs of an application in a proceeding may be separately dealt with in the ordinary case: Sino Iron Pty Ltd v Palmer (No 4) [2015] QSC 189, [12] (Jackson J).
[683] Costs in proceeding before Magistrates Court go to top
Despite the absence of any specific provision in an Act giving the Magistrates Court power to award costs, Chapter 17A of the UCPR provides an effective statutory basis for the Magistrates Court to award costs: Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304; [2007] QCA 235 [36] (McMurdo P, Wilson & Lyons JJ), in relation to the former Chapter 17.
[684] Costs of question or part of proceeding go to top
Rule 684 is more likely to find application where a plaintiff has been partially successful. The defendant who has restricted the plaintiff's success may have an argument, the strength of which will depend on the circumstances, that it should pay only part of the costs or indeed be paid part of the costs. Where, however, a defendant has been completely successful it would be unusual to require it to pay any part of the plaintiff's costs. There may be exceptional cases where the defendant by its conduct has made it appropriate that it should be deprived of its costs or even pay its opponent's costs, but cases in which a successful defendant has not recovered costs are rare: Emanuel Management Pty Ltd (in liquidation) v Foster's Brewing Group Ltd [2003] QSC 299, [85] (Chesterman J), in respect of the former r 682.
In the context of a trial of a claim and counterclaim in a civil proceeding, where there may be a verdict and judgment in favour of one party on the claim and there may be a verdict and judgment in favour of the other party on the counterclaim, it has long been recognised that the judgment of the claim may be treated as one event and the judgment on the counterclaim may be treated as another event: Gladstone Area Water Board v AJ Lucas Operations Pty Ltd [2015] QSC 52, [12] (Jackson J).
In exercising its discretion in relation to costs, the court is entitled to take an impressionistic and pragmatic view as to what were the real heads of controversy in the litigation and will strive to avoid assessments of costs in a complicated form, according to issues in the technical sense. However, this does not detract from the general rule that costs follow the event, or relieve a party which seeks to invoke the discretion under r 684 from the requirement to identify the “particular question” in a proceeding, or the “particular part” of a proceeding, in respect of which the court is asked to make an order for costs: Vision Eye Institute Ltd v Kitchen (No 3) [2015] QSC 164, [13] (Applegarth J).
It appears to follow from the decision of the Court of Appeal in Interchase Corp Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26 and by reference to the language of rr 681 and 684, that, under the current rules, events in an action are to be identified by reference to individual issues or questions in the action, and the event is not simply the result or outcome of the action; and, at least by implication, that the predilection for making orders for costs by reference to success on individual events within the action remains: McDermott v Robinson Helicopter Co (No 2) [2015] 1 Qd R 295; [2014] QSC 213, [30] (P Lyons J).
The general rule remains that costs should follow the event and r 684 provides an exception. Necessarily the circumstances which would engage r 684 are exceptional circumstances, and the enquiry must be: what is it about the present case which warrants a departure from the general rule? That this remains the approach under rr 681 and 684 comes not only from the terms of the rules themselves but also from the recognised purposes for it: BHP Coal Pty Ltd v O and K Orenstein and Koppel AG (No 2) [2009] QSC 64 [7] (McMurdo J).
Rule 684 is to the similar, general, effect as former O 91 r 3 of the Rules of the Supreme Court, though the change in wording is no doubt deliberate and confers a wider discretion than the former rule which was limited to “issues”, a word which itself gave rise to difficulty: Todrell v Finch (No 2) [2008] 2 Qd R 95; [2007] QSC 386, [13] (Chesterman J).
[685] Costs if further proceedings become unnecessary go to top
To decide whether a plaintiff would have been entitled to their costs under r 685 does not require the proceedings to be argued in full. It calls for no more than a decision whether or not the plaintiff had reasonable grounds for complaint and an arguable case to support the taking of proceedings up to the time at which it became unnecessary to continue: Nolan v Warne [2001] QCA 537, [8]-[9] (McPherson JA, Mackenzie & Mullins JJ agreeing), citing R v Gold Coast City Council, ex parte Raysun Pty Ltd [1971] QWN 13, in respect of the former r 683.
Leave to discontinue or withdraw a claim will generally result in the party granted that leave being ordered to pay the costs of the other party. However, an order for costs in favour of that other party will not be made if there are legitimate grounds for the court, in the exercise of its discretion, to order otherwise. Relevant factors in the exercise of that discretion include the circumstances of the grant of leave, the conduct of the parties and the fact the defendant was required to defend proceedings the plaintiff has chosen not to pursue to finality. A further relevant factor is that the question of costs is being determined in circumstances where there has been no determination of the application on its merits: Kennedy v Griffiths [2014] QSC 43, [63], [65] (Boddice J).
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried: Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 624-5, cited in Hammercall Pty Ltd v Robertson [2011] QCA 214, [27].
[686] Assessment of costs without order go to top
Rule 686(a) expressly provides that costs may be assessed without an order for assessment having been made if the court orders a party to pay another party’s costs. Yet practitioners still regularly seek an order that costs be assessed. That habit seems to have ensued from the requirement under a prior statutory regime that an order for taxation of costs was required: Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271 [12] (Jackson J).
[687] Assessed costs to be paid unless court orders otherwise go to top
The purpose of r 687(2)(c) is to avoid the expense, delay and aggravation involved in protracted litigation arising out of assessment of costs: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84 [7] (Martin J), citing Beach Petroleum v Johnson (No 2) (1995) 57 FCR 119; Seven Network Ltd v News Ltd [2007] FCA 2059; Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23.
The court must be satisfied that the approach taken to the estimate of costs is logical, fair and reasonable: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84 [7] (Martin J), citing Beach Petroleum v Johnson (No 2) (1995) 57 FCR 119.
Power to order fixed costs
An assessment by which costs are fixed does not require a process similar to that of an ordinary assessment of costs. The court applies a broad brush: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84 [7] (Martin J), citing Harrison v Schipp (2002) 54 NSWLR 738; Beach Petroleum v Johnson (No 2) (1995) 57 FCR 119; Seven Network Ltd v News Ltd [2007] FCA 2059.
It is a matter for the court in each particular case as to whether, in the circumstances of that case, it is appropriate for the court to embark on a cost-fixing exercise under r 687(2), rather than leaving the costs for assessment as is the primary position contemplated by r 687(1): Hobbs v Oildrive (No 2) [2008] QSC 52, [18] (Daubney J).
The UCPR draws a clear distinction between an assessment of costs and the process of fixing costs under r 687(2)(c). Whilst both processes require that procedural fairness be afforded to the parties, the latter is intended to be relatively speedy and inexpensive: Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 55 [28] (Fraser JA, McMurdo P & Douglas J agreeing).
Specification of a fixed sum is not the result of a process of taxation or assessment of costs. The amount can only be fixed broadly, having regard to the information before the court. The power should only be exercised when the court considers that it can do so fairly between the parties and that includes sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, approved in Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 55 [28] (Fraser JA, McMurdo P & Douglas J agreeing).
Fixing costs is intended as a summary determination of what is fair and reasonable for costs in the circumstances. It is not intended to mimic an assessment of costs: Goodwin v O'Driscoll [2008] QCA 43, [12] (McMurdo P & Wilson J).
The court is entitled to consider all the circumstances that could have a bearing on whether or not the discretion to fix costs should be exercised. The court is not restricted to material that would be relied on at an assessment of costs: Australian Securities and Investments Commission v Atlantic 3-Financial (Aust) Pty Ltd (No 3) [2008] 2 Qd R 298; [2008] QSC 9 [51] (Mullins J), citing Harrison v Schipp (2002) 54 NSWLR 738 at 742-3 [21].
It is a relevant consideration in determining whether to exercise the power to fix costs that the relevant costs order is substantially for indemnity costs. The principle that there is greater latitude in determining reasonableness of costs on an indemnity basis than on a standard basis and usually only costs that can be characterised as outlandish should be excluded on an indemnity basis may result in the court being more inclined to fix costs that are claimed on an indemnity basis where it is apparent the costs are not outlandish: Australian Securities and Investments Commission v Atlantic 3-Financial (Aust) Pty Ltd (No 3) [2008] 2 Qd R 298; [2008] QSC 9 [39] (Mullins J).
In Australian Securities and Investments Commission v Atlantic 3-Financial (Aust) Pty Ltd (No 3) [2008] 2 Qd R 298; [2008] QSC 9, Mullins J collected authorities that provide guidance on the circumstances where it may be appropriate for the court to award fixed costs (at [32], [36], citations omitted):
- The purpose of making a gross sum order is to save the parties the time, trouble, delay and expense and aggravation in protracted litigation arising out of taxation.
- The specification of a gross sum order is not the result of a process of taxation or assessment of costs.
- The power to make a gross sum order should be exercised only when the court considers that it can do so fairly between the parties, and that includes sufficient evidence in arriving at an appropriate sum on the materials available.
- The gross sum can only be fixed broadly having regard to the information before the court.
- Expert evidence analysing the bills of costs and/or giving an opinion about the likely outcome of the taxation has been utilised by the court in making the gross sum order.
- The court should be confident in fixing the amount of the gross fee that the approach taken to estimate costs is logical, fair and reasonable.
- The power to order gross sum amounts is appropriate to be used in complex cases.
- The court must be astute to prevent prejudice to the party ordered to pay the costs by overestimating the costs, but must also be astute not to cause an injustice to the successful party by an arbitrary ‘failsafe’ discount on the cost estimates submitted to the court.
- The power to order a gross sum may appropriately be exercised where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment.
In relation to the exercise of the power conferred on the court by r 687(2), it is relevant that the issues in question are in short compass and concern matters of broad principle. It is also relevant that the respondent does not advance any reason why the court should not exercise the power to fix costs. There is, therefore, no good reason why the court should allow the quantum of costs to be fixed in the traditional way rather than to exercise the power conferred by r 687(2) in order to save further delay and expense: ChongHerr Investments Ltd v Titan Sandstone Pty Ltd [2007] QCA 278, [6] (de Jersey CJ, Keane JA & Philippides J), in relation to the previous r 685.
As a general rule, it is not necessary to replicate a costs statement in accordance with r 705 before the court will exercise its discretionary power to fix costs. However, the court needs to be satisfied that the amount in which it is asked to fix costs is a realistic estimate of the likely outcome of a formal assessment: Carberry v Drice as Rep of Brisbane Junior Rugby Union (An Unincorporated Body) (No 2) [2011] QSC 19, [9] (M Wilson J).
In Gladstone Area Water Board v AJ Lucas Operations Pty Ltd [2015] QSC 52 Justice Jackson declined to make an order for fixed costs because the affidavit material did not distinguish between costs on the claim and those on the counterclaim. A substantial part of the costs incurred by the plaintiffs were costs incurred in defence of the counterclaim. It may have been difficult to disentangle them: at [26].
[688] Costs when proceeding removed to another court go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[689] Costs in an account go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[690] Lawyer’s delay or neglect go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[691] Australian lawyer’s costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[692] Amendment go to top
Rule 692(2) is a provision of general application to amendments, including amendments to pleadings, which is to similar effect to r 378: Birbilis Bros Pty Ltd v Chubb Fire and Security Pty Ltd (No 2) [2018] QSC 129 (Brown J) at [21].
[693] Application in a proceeding go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[694] Default judgment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[695] Extending or shortening time go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[696] Costs of inquiry to find person go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[697] Costs of proceeding in wrong court go to top
In circumstances where the sum awarded in District Court proceedings was within the jurisdictional limit of the Magistrates Court, it was a proper exercise of discretion to award costs on the lowest District Court scale, in circumstances where the amount recovered was less than 20 per cent below the upper jurisdictional limit of the Magistrates Court: [2003] Qd R 1 [2002] QCA 60 [24] (McMurdo P) in relation to the former r 698(1) (but see [100] per Ambrose J, referring to the “exceptional” circumstances placed before the trial judge on the question of costs).
In proceedings to recover damages, where the quantum of damages was inherently uncertain but were ultimately awarded in an amount which was within the jurisdiction of a lower court, it is relevant in the application of Rule 697(4) to consider whether, on the findings which were ultimately made, the claimant ought not to have expected to recover a loss of more than the monetary limit of that lower court: Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited (No 2) [2018] QCA 91 at [6].
The power under r 697 may be exercised in defamation cases, where a right to indemnity costs has arisen under s 40 of the Defamation Act 2005 (Qld): Nationwide News Pty Ltd v Weatherup [2017] QCA 70 at [99]-[100].
[698] Reserved Costs go to top
Rule 698 is intended to make it unnecessary to make a specific order dealing with reserved costs, unless they are not to follow the order for costs of the application. That interpretation means that the practice followed under previous rules of court that reserved costs must be specifically dealt with does not generally apply in making an order for costs of an application under the UCPR: Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271 [5] (Jackson J).
[699] Receiver’s costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[700] Trustee go to top
Rule 700 reflects the general principle that a trustee is entitled to indemnity out of the trust estate for expenses properly incurred in the administration of the trust: Coral Vista Pty Ltd v Halkeas; Halkeas v Coral Vista Pty Ltd [2010] QSC 449, [40]-[41] (M Wilson J).
The considerations by which a court might order otherwise under r 700 include those arising under the general law of trusts: Park v Whyte (No 3) [2017] QSC 230 (Jackson J) at [56].
[700A] Estates of deceased persons and trusts go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2 – Basis of assessment of costs of a party in a proceeding
[701] Application of div 2 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[702] Standard basis of assessment go to top
The wording of r 702(1) means that there is no need to seek an order that costs be assessed “on the standard basis”: Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271, [12] (Jackson J).
There can be no hard rules about costs; they must be sufficiently flexible to adapt to the myriad of factual circumstances which can arise: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84 [34] (Martin J).
The test of whether some expenditure was “necessary or proper” is to be applied by reference to the circumstances that existed when the work was done, not in relation to the eventual state of the circumstances at the trial: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84, [18] (Martin J).
The distinction between what costs are “necessary” and what costs are “proper” was explained by Asprey J in W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWR 527 at 534–5: [2015] 71 MVR 182 [2015] QCA 101, [19] (Mullins J, Philippides JA & Burns J agreeing).
It is undesirable for the court to further indorse a practice of making orders for costs “of and incidental to” an application. This is because:
- the cases on which the distinction between an order for costs “of [a proceeding]” on the one hand and costs “of and incidental to [a proceeding]” on the other hand are said to arise do not give any clear meaning to the difference in scope between the two formulations;
- the inclusion of the words “and incidental to” are at best unnecessary and at worst introduce confusion as to the operation of an order made without those additional words; and
- there is no reference in any part of the text of Ch 17A of the UCPR to costs which are “incidental”.
Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271 [17]–[19] (Jackson J).
[703] Indemnity basis of assessment go to top
Rule 703(1) imposes a different standard of assessment than previously applied in respect of solicitor and client costs under the Rules of the Supreme Court: Di Carlo v Dubois [2002] QCA 225, [35] (White JA, Williams JA & Wilson J agreeing), in respect of the former r 704.
The categories in which the discretion to award indemnity costs may be exercised are not closed. There needs to be some special or unusual feature in the case to justify a court departing from the ordinary practice, for instance: the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud; misconduct that causes loss of time to the court and the other parties; the fact that the proceedings were commenced at or continued for some ulterior motive; or in wilful disregard of known facts; or clearly established law; the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions; the imprudent refusal of an offer to compromise; and costs against a contemnor: Di Carlo v Dubois [2002] QCA 225, [37] (White JA, Williams JA & Wilson J agreeing), citing Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, in respect of the former r 704. See also Holloway Nominees (Q) Pty Ltd v George (No 2) [2008] QSC 71, [13] (Martin J). It is irresponsible to commence proceedings which cannot succeed because of a known legal impediment: Todrell Pty Ltd v Finch (No 2) [2008] 2 Qd R 95; [2007] QSC 386 [4] (Chesterman J).
Abuse of process may be a sufficient ground for an indemnity costs order. This includes conducting the litigation in an oppressive way. When the manner in which the litigation is conducted includes prolix documents, unnecessary or unwinnable contentions, or unreasonable factual assertions, that combine to cause excessive expense and delay for the other party, and a disproportionate burden on the public resources of the court in the disposition of the proceeding, it may reasonably be said that the proceeding and conduct of the moving party are oppressive: John Holland Pty Ltd v Adani Abbot Point Terminal Pty Ltd (No 2) [2018] QSC 48 (Jackson J) at [14]-[18].
It is important that applications for the award of costs on the indemnity basis not be seen as too readily available when a particular party against whom the order is sought is seen to carry responsibility for the state of affairs calling for a costs order without some further facts analogous to those in considered decisions: Di Carlo v Dubois [2002] QCA 225, [40] (White JA, Williams JA & Wilson J agreeing), in respect of the former r 704.
An order for indemnity costs would ordinarily be done only when there are circumstances warranting a departure from the usual order assessing costs on the standard basis: Grice v State of Qld [2005] QCA 298, [6] (McMurdo P, McPherson & Williams JJA agreeing), in respect of the former r 704.
A party who unreasonably refuses to accept a Calderbank offer, on terms more favourable than the court’s subsequent order, may be ordered to pay indemnity costs: Velvet Glove Holdings Pty Ltd v Mount Isa Mines Ltd (No 2) [2011] QCA 156, [9] (Wilson J). This principle should not be more generous in the case of a defendant who makes an offer that is not a Calderbank offer: Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197; [2013] QCA 68 [54] (Fraser JA, Holmes JA & Fryberg J agreeing).
The note to r 703(1) does not authorise or require reference to the concept of a solicitor and client taxation for the purpose of construing r 703(3). Rather, its function is simply to direct the reader’s attention to the transitional provisions in r 743S and s 133(b) of the Supreme Court of Queensland Act 1991 (Qld): Amos v Monsour Pty Ltd [2009] 2 Qd R 303 [2009] QCA 55 [19] (Fraser JA, McMurdo P & Douglas J agreeing).
Rule 703(3) is applicable to an assessment of costs by a magistrate setting the amount of costs under r 683(2): Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304; [2007] QCA 235 [26] (McMurdo P, Wilson & Lyons JJ), in relation to the former rr 681 and 704.
When costs in the Magistrates Court are being assessed on an indemnity basis in accordance with r 703(3), the scale of fees to which regard is to be had under r 703(3)(a) is the scale of fees identified by r 691(4): Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304; [2007] QCA 235 [24]-[25] McMurdo P, Wilson & Lyons JJ), citing Asset Loan Company Pty Ltd v Mamap Pty Ltd [2005] QDC 295, in relation to the former rr 690 and 704.
A determination of whether, within the meaning of r 703(3), costs are “reasonably incurred” and “of a reasonable amount” involves a consideration, at the time of the assessment of the costs, of all relevant circumstances pertaining in the particular case: Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304, [29] (McMurdo P, Wilson & Lyons JJ), in relation to the former r 704.
Rule 703(3)(a) by necessary implication requires the consideration of an element of proportionality: Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304; [2007] QCA 235, [29] (McMurdo P, Wilson & Lyons JJ), in relation to the former r 704.
When assessing whether particular costs should be allowed, in the sense that they have been reasonably incurred and are of a reasonable amount, the costs assessor should have regard to at least the following:
(a) the scale of fees prescribed in Schedule 1 of the UCPR;
(b) the terms of any costs agreement;
(c) the charges ordinarily payable by a client to a solicitor for the work;
(d) whether or not it was reasonable to carry out the work to which the costs relate;
(e) whether or not the work to which the costs relate was carried out in a reasonable way; and
(f) any other relevant circumstance such as the complexity of the case:
Nicotra v State of Queensland [2017] QSC 303 (Burns J) at [58].
Prior warning that indemnity costs will be sought
There is no inflexible requirement at the trial level that indemnity costs cannot be ordered unless there has been a prior warning that such an order might be sought. The variety of courses which a trial may follow means that such a requirement should not be imposed: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84 [101] (Martin J) And see John Holland Pty Ltd v Adani Abbot Point Terminal Pty Ltd (No 2) [2018] QSC 48 (Jackson J) at [16].
Goods and services tax
In fixing indemnity costs, it is appropriate to ignore GST in circumstances where the party is entitled to an input tax credit for the GST paid on its legal costs, as it is an amount for which the party is no longer liable: The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356; [2009] QSC 84 [113] (Martin J).
Costs agreement under r 703(3)(b)
Rule 703(3)(b) refers only to a valid and enforceable costs agreement. If an agreement is void because of non-compliance with statutory requirements then it cannot be referred to at the stage of assessing costs payable on an indemnity basis: Casey v Quabba [2007] 1 Qd R 297; [2006] QCA 297, [16] (Williams JA, Jerrard JA & Philippides J agreeing), referring to the former r 704(3)(b).
A party ordered to pay costs has standing to challenge the validity of a costs agreement on which the opposing party seeks to rely before costs are assessed on an indemnity basis: Casey v Quabba [2007] 1 Qd R 297; [2006] QCA 297, [23] (Williams JA, Jerrard JA & Philippides J agreeing), referring to the former r 704(3)(b).
[704] Trustee go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 1 – Before Application
[705] Costs statement go to top
The question whether a costs statement contains “sufficient details to enable the party liable to pay the costs to understand the basis for the costs, prepare an objection … and obtain advice about an offer to settle“ will invariably depend upon the circumstances of the case and, more particularly, the knowledge of the party liable to pay the costs: Ginn v Ginn; Ex parte Absolute Law Lawyers & Attorneys [2015] QSC 49, [32] (Henry J).
Any concern as to whether a statement of costs contains sufficient detail for the party liable to understand the basis for it and prepare an objection must logically fall away in circumstances where that party is properly served with a costs statement and elects not to object to it. In such circumstances it is hardly to the point that a costs assessor would have preferred that the costs statement contain more particularity: Ginn v Ginn; Ex parte Absolute Law Lawyers & Attorneys [2015] QSC 49, [33] (Henry J).
[706] Objection to costs statement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[707] Consent order go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[708] Default assessment if no objection to costs statement go to top
The rationale underpinning r 708 is that where a person served with a cost statement does not object to it there is no need for the cost assessor to consider the costs statement with the same degree of scrutiny that is required when there is an objection: Ginn v Ginn; ex parte Absolute Law Lawyers & Attorneys [2015] QSC 49 [15] (Henry J).
Only items that upon perusal appear to have been included in obvious error can be disallowed in an assessment under r 708. A cost assessor may not disallow items for want of particularity, since to determine this involves engaging in a consideration of the items contrary to rule 708(3)(a): Ginn v Ginn; ex parte Absolute Law Lawyers & Attorneys [2015] QSC 49 [27] (Henry J).
The reference to “a party” in subr (1)(a) should be construed as applying to each of however many parties are ordered to pay the costs. If one party chooses not to object to the costs statement, the party in whose favour the order was made is entitled to a default assessment against that party and can recover from that party the amount so assessed. If other parties against whom the same order was made choose to object and are successful in their objections they become liable only for their own assessed liability: Glenwood Homes Pty Ltd v Eberhard [2009] 1 Qd R 127; [2008] QSC 192 [15]-[16] (Dutney J).
[709] Setting aside default assessment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[709A] Failure to serve costs statement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 2 - Application
[710] Application for costs assessment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[711] Service of application go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[712] Agreed costs assessor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[713] Costs assessor if no agreement go to top
There will normally be a variety of competing considerations to be assessed and weighed in a registrar’s determination under r 713(2)(a). The fact that the selection of a costs assessor is entrusted to the exercise of a registrar’s discretion and that there is an avenue of review by the court militates against arbitrary decision making and the fettering of the registrar’s decision by the adoption or application of a rule of thumb or practice. So too does the existence of the right to approach the court under r 713(2)(b) in lieu of applying to a registrar under r 713(2)(a). Although the registrar’s role is administrative in nature there is, nevertheless, an obligation not to take into account irrelevant considerations and to take into account the parties’ submissions and all other relevant considerations that the registrar is bound to take into account: Lessbrook Pty Ltd (in liq) v Whap [2014] 2 Qd R 102; [2014] QCA 63 [33] (Muir JA, Gotterson JA & Daubney J agreeing).
It may be accepted that the party with the benefit of the costs order will normally have the greatest interest in expedition. It may also be relevant that such party’s solicitors work well with the costs assessor nominated by their client and that they have found that assessor’s work to be good in the past. The closeness of such a relationship, however, may be a matter that tells against appointing the costs assessor: Lessbrook Pty Ltd (in liq) v Whap [2014] 2 Qd R 102; [2014] QCA 63 [30] (Muir JA, Gotterson JA & Daubney J agreeing).
In some circumstances, it may be obvious that the order of filing of the competing assessors’ consents is a relevant factor in determining an application under r 713. For example, a party that showed a disposition to delay proceedings but rushed to file an application under r 713 when informed of the other party’s intention to make such an application should not be permitted to benefit from its stratagem. Plainly, the circumstances surrounding the making of the r 713 application will vary from case to case and will have varying degrees of relevance and significance: Lessbrook Pty Ltd (in liq) v Whap [2014] 2 Qd R 102; [2014] QCA 63 [31] (Muir JA, Gotterson JA & Daubney J agreeing).
[713A] Service of order appointing costs assessor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 3 - Assessment
[714] Powers of an assessing registrar go to top
In giving directions about the conduct of the assessment process under r 714(f), the registrar is bound to regard the interests of justice as paramount: Jones v Millward, Lea and Anor [2006] QSC 92, [11] (Jones J), in relation to the former r 706(1)(g).
Rule 714(g) gives the court power to make a direction to a registrar as to the basis on which costs are to be assessed: National Australia Bank Limited v Clanford Pty Ltd [2003] 2 Qd R 79; [2002] QSC 361 [38]-[39] (Mullins J), in relation to the former r 706(1)(h).
[715] Powers of a costs assessor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[716] No participation by a party go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[717] Issue or question arising go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[718] Notice of adjournment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[719] Conflict of interest go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[720] Procedure on assessment go to top
The requirements of r 720(2) ensure any assessment is conducted fairly and efficiently having regard to the nature and scope of the dispute. Where the dispute requires an assessment of the whole of the bill, the further requirement that the process accords with the rules of natural justice ensures there is no unfairness in the assessor undertaking a consideration of items not specifically raised by the client in the affidavit in dispute. Compliance with the rules of natural justice will necessitate the costs assessor giving the law practice the opportunity to make submissions on any other items of concern: Radich v Kenway [2014] QCA 301, [38] (Boddice J, Applegarth J & McMurdo P agreeing).
[721] Discretion of a costs assessor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[722] Assessment must be limited go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[723] Disbursement or fee not paid go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[724] Professional charges and disbursements go to top
Rules 724(3) and (4) are not by their terms confined to cases where the solicitor on the record retains an interstate solicitor as agent. By its terms subrule (4) contemplates payment of an amount appropriate in the place where the solicitor or barrister practices for work done by a solicitor or barrister practising outside Queensland: Base Metals Exploration NL (in Liq) v Huntley Management Ltd (formerly Teys Management Ltd) [2007] QSC 194, [16] (Moynihan J), in relation to the former r 714.
The costs statement referred to in r 724(1) is that of the party entitled to costs, not that of his or her solicitor: Maggbury Pty Ltd v Hafele Australia Pty Ltd (No 2) [2002] 1 Qd R 183; [2001] QCA 78, [13] (Wilson J), in relation to the former r 714.
Rule 724 deals with two quite different situations. The first is where a party’s Queensland solicitor engages another Queensland solicitor as his or her agent. Here, the charges of the agent are itemised among the professional charges in the costs statement. The second situation is where there is a Queensland solicitor on the record, but part of the work is done by a barrister or solicitor practising outside Queensland. In this situation the interstate practitioner’s charges are to be treated like the charges of any other foreign agent, and a claimed as a disbursement: Maggbury Pty Ltd v Hafele Australia Pty Ltd (No 2) [2002] 1 Qd R 183; [2001] QCA 78, [13] (Wilson J) citing McCullie v Butler [1962] 2 QB 309 at 312–313, in relation to the former r 714.
[725] Parties with same lawyer go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[726] Counsel’s advice and settling documents go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[727] Evidence go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[728] Solicitor advocate go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[729] Premature brief go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[730] Retainer of counsel go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[731] Refresher fees go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 4 - Costs of assessment and offers to settle
[732] Costs of assessment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[733] Offer to settle costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[734] Acceptance of offer to settle costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[735] Reduction of more than 15% go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
Division 5--Certificate of costs assessor
[736] Agreement as to costs go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[737] Certificate of assessment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[737A] Information about outcome of costs assessment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[738] Written reasons for decision go to top
A number of matters suggest that an assessor will satisfy the requirements of r 738 by providing abbreviated reasons. First, there is the requirement in r 738(2)(a) that the reasons be provided within 21 days of the request for them. Secondly, the style of the reasons will respond to the form of the objections and the request for reasons. Objections are frequently expressed in quite abrupt terms: Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2015] QSC 122, [32]-[34] (Martin J).
In order to determine whether or not the reasons given were adequate, it is necessary to refer to the item, the objection, the answer of the costs assessor and his or her reasons: Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2015] QSC 122, [38] (Martin J).
Rule 738(1) does not give a party a right to seek reasons in general in relation to a certificate of assessment. Instead, it permits a request for reasons for any decision included in the certificate: Remely v Vandenberg [2009] QCA 17 (Holmes JA).
It is doubtful that the obligation in r 738(2) upon the costs assessor to provide written reasons upon request is contingent on the obligation in subs (3) for the party requesting reasons to pay his or her costs: Remely v Vandenberg [2009] QCA 17 (Holmes JA).
Division 6 – After assessment
[739] Application of div 6 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[740] Judgment for amount certified go to top
The court’s discretion under r 740(3) to grant a stay of the enforcement of a costs order is unfettered. The applicant bears the onus of satisfying the court that it is an appropriate case for a stay to be granted: Murdoch v Lake [2014] QSC 142, [10] (Wilson J), citing Croney v Nand [1999] 2 Qd R 342 at 348.
[741] Costs may be set off go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[742] Review by court go to top
The court has a wide discretion to review a decision of a costs assessor, but it is only to be exercised with a consciousness that it is effectively an appeal against the exercise by the cost assessor of their discretion. In general, the court will interfere only where the discretion appears not to have been exercised at all or to have been exercised in a manner which is manifestly wrong: Nashvying Pty Ltd v Giacomi [2009] QSC 31, (Jones J) cited in Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2015] QSC 122 [8] (Martin J).
[743] Definition for pt 4 go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743A] Application for costs assessment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743B] If recovery proceedings started go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743C] Court may direct preparation of itemised bill go to top
An order for the delivery of an itemised bill should only be made in respect of those items for which an assessment of costs has been ordered: Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115, [79] (Applegarth J).
The applicant carries an onus to demonstrate that they have not been provided with an itemised bill in accordance with their statutory entitlement. Once they have done this, a practical burden may fall upon the respondent to advance reasons as to why the court should not exercise its discretion to direct delivery of itemised bills. In this regard, it is not sufficient for a respondent to such an application to respond, in effect, “let me know which of the items you don’t understand or need more information about, and I will provide it.” However, the preparedness of a respondent to such an application to provide such additional information, upon request, is relevant to the discretion to make a direction under r 743C: Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115, [85] (Applegarth J).
The applicant is not obliged to go through each of the invoices and find deficiencies in them. However, to attract the favourable exercise of the discretion under r 743C the applicant should have done more than identify a few alleged deficiencies in the course of oral argument: Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115, [91] (Applegarth J).
The test is not whether the bill on its face is objectively sufficient. The test is whether the information in the bill supplemented by what is subjectively known to the client enables the client with advice to take an informed decision whether or not to exercise the only right then open to him or her, viz, to seek taxation reasonably free from the risk of having to pay the costs of that taxation: Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115, [92] (Applegarth J), citing Ralph Hume Garry v Gwillim (CA) [2003] 1 WLR 510 at 522 [32].
The entitlement to an itemised bill is an important statutory right, and that entitlement is not qualified because of practical difficulties that solicitors may encounter due to inadequate records or the fact that persons with certain knowledge are no longer in the solicitors’ employment: Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115, [95] (Applegarth J).
The discretion to make directions under r 743C also needs to be exercised in the context of the philosophy of the UCPR, namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. In that context, it is not unreasonable to expect an applicant for an order under r 743C to show that further information is required to decide whether or not to pursue an assessment and that such information is not currently in it or its adviser’s possession: Tabtill No 2 Pty Ltd v DLA Phillips Fox (a firm) [2012] QSC 115, [96] (Applegarth J).
The criteria for the costs assessment that are set out in s 341 of the Legal Profession Act 2007 and the requirement under s 340 of the Legal Profession Act 2007 that the costs assessor must assess any disputed costs by reference to the charge out rate and means for calculating costs set out in the costs agreement is relevant to the exercise of the discretion to order itemisation of the bills: Challen v Golder Associates Pty Ltd [2012] QCA 307, [56] (Mullins J, McMurdo P & Fraser JA agreeing).
[743D] Notice of application go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743E] Agreed costs assessor go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743F] Costs assessor if no agreement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743G] Directions hearing go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743H] Application to court for directions after certificate of assessment filed go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743I] Application of other rules go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743J] Eligibility go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743K] Application go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743L] Appointment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743M] Ongoing disclosure of adverse matters and updated details go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743N] List of costs assessors go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743O] Charges for costs assessments go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743P] Ending an appointment upon request go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743Q] Ending an appointment for sufficient reason go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
[743R] Effect of ending of appointment or notice about possible ending of appointment go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.