If you want to apply for a costs assessment the attached information sheet may assist you in working out, the relevant application form to complete.
Yes, time limits under legal profession legislation are very important
Regarding costs applications lodged by clients or law practices, generally, the time frame to seek a costs assessment, is to lodge a costs assessment application within 12 months of the date the bill or tax invoice was sent to the client.
If, a bill or tax invoice has not been sent, the same 12-month timeframe would apply. However, it commences from the date payment of the legal costs was made, or alternatively, the date any request for payment was sent.
Please note, this is intended to be a summary only. When making an application each party needs to check the relevant legislation to ensure their application are within time, or options that may apply to seeking additional time.
Also, the 12-month timeframe commences from either the sending of the first bill, or first request for payment, NOT BOTH, and is NOT re-started from any subsequent request(s) for payment seeking to follow up payment.)
Regarding costs Orders made by a NSW Court of Tribunal a party filing an Ordered Costs application must first send it to the Respondent, the opposing party, to the costs dispute. In doing so, they must give the Respondent, 21 days to provide any objections or response. After either a response is received, or the expiry of the 21 days, the applicant can submit their application for lodgement.
An application for costs assessment can be emailed to the Supreme Court at the below email address, in PDF format:
costsassessment@justice.nsw.gov.au
If the volume of material submitted in support of the costs assessment application is too voluminous, the costs assessment application may need to be submitted in paper format. If so, the application then needs to be lodged in triplicate and posted addressed to:
Manager Costs Assessment,
c/o Supreme Court of NSW,
GPO Box 3,
Sydney NSW 2001
After submitting a costs assessment application, Court Registry staff will send the applicant a payment link to attend to payment of the filing fee.
The filing fee is calculated on the greater of:
a) $100; or
b) 1% of the unpaid bill; or
c) 1% of the total costs in dispute.
On top of the filing fee, is the costs of the assessment itself, which vary from one matter to the next.
In completing their assessment, the Costs Assessor will determine which party(ies) are liable for those costs and in what proportion.
The procedure for Manager Costs Assessment (“the MCA”) to deal with an application for costs assessment is set out in the Legal Profession Uniform Law (Application Regulation) (NSW) 2025:
Ordered (Party Party) applications:
The applications will be processed and referred to a Costs Assessor as soon as practicable after it is lodged.
Client, Third party Applications:
Upon the application being accepted for lodgement, the MCA will send the application to the Costs Respondent with a request for any response to be provided within 21 days. After the expiry of that 21 days, the application is referred to a Costs Assessor.
Practitioner Applications:
MCA sends the application to the Respondent with a request for any objections to be provided within 21 days. If objections are provided they are sent to the practitioner, law practice, for any response within a further 21 days. After that timeframe has concluded, the application is referred to a Costs Assessor.
These objections are general. They may be relevant to some or all the concerns a party has towards the bills/invoices, that have been sent, or for individual tasks in an itemised bill. It is a matter for each party to prepare their own objections, submissions, they want considered.
The below links will take to Costs Assessment Rules Committee (CARC) documents prepared to assist parties in articulating their objections.
1. Guidelines for Costs payable between parties under court orders (ordered or party/party costs)
The costs assessments process is administrative.
Costs Assessments are conducted on the papers, with a Court appointed Costs Assessor making a determination, on a reasonable amount payable for the legal services provided.
The parties correspond with the Costs Assessor as directed. It is important that any email correspondence sent to the Costs Assessor is also sent to the other side. This not only necessary, but mandatory to maintain transparency in the costs assessment process.
To assist the parties in having their matter determined, it is important for the parties themselves, to consider how they can clearly and succinctly set out their claims, in either their application or objections.
It is important to appreciate, if, the parties choose to provide the Costs Assessor with unnecessary material, that is not relevant to the costs dispute, this will likely have the effect of increasing the time required to complete the determination and subsequently increase the costs charged for undertaking the assessment.
These costs, for the assessment process are ultimately payable by the parties.
Costs Assessors will NOT speak with the parties via telephone. and will only communicate in writing, email.
The Costs Assessor is required to give the parties a reasonable opportunity to make submissions. To facilitate that, the Costs Assessor will case manage each matter with a timetable, requiring parties to comply with the production of documents requested by the Costs Assessor, within certain timeframes, to enable the assessment to be undertaken in a timely and costs effective manner.
It is important to appreciate:
- Parties are required to comply with the notices and directions by a Costs Assessor; and
- It is the Costs Assessor that sets the timetable, NOT the parties.
The Costs Assessor upon receiving the documentation and submissions, will consider the available material to issue formal documents called, “Certificate of Determination” quantifying an amount for the legal costs in dispute and the costs of the assessment. This will be accompanied by a Statement of Reasons explaining the rationale for their decision.
It is important to appreciate, the failure by a party to comply with the directions of a Costs Assessor may result in the Costs Assessor declining to deal with the application. Alternatively, the Costs Assessor may continue to deal with the application only on the available information provided.
The Manager, Costs Assessment is to refer applications for assessment of costs to the most suitable Costs Assessor having regard to the following:
Wherever possible, the MCA will refer related applications, particularly those involving the same parties or matters, to the same Costs Assessor. Related matters should be noted in the application or covering letter, with a request to refer any related applications to an assessor, already handling a related application.
A Costs Assessor who has an interest or a conflict in an application must, as soon as practicable after becoming aware of that fact, refer the application to the MCA, for referral to another Costs Assessor.
If the MCA is satisfied that it is inappropriate for a Costs Assessor to determine a particular application, the MCA may revoke the referral of the application and refer the application to another Costs Assessor.
A request to revoke a referral must be made by email to the MCA, setting out the reasons for that request. The other side must be included in that email to maintain transparency in the costs assessment process.
Parties are to exchange their documentation by email.
This information sheet provides guidance about how parties are expected to communicate with each other, with Costs Assessor assigned to determine their matter and with the costs assessment section.
It is important to, and must be noted that the Costs Assessment section of the Court and Costs Assessor must remain independent and impartial at all times. It is imperative for each party to prepare their own submissions and objections that they want considered, in the timeframes allowed.
Requests to the MCA should not be made as the MCA cannot formally extend the 21 day for objections and responses as set out in the Regulations. The procedure for dealing with costs assessment applications is mandatory and must be followed. However, any objections or responses that are duly lodged after they are due, will be forwarded to the assigned Costs Assessor for their consideration.
Once a matter is allocated to an Assessor, any request for additional time to provide either objections or submissions must be made to the Costs Assessor. Once more including the other side to maintain transparency.
At the end of the assessment process the Costs Assessor will issue Certificate’s of Determination and a Statement of Reasons, being the result of the assessment.
Under the legislation, the Certificate’s of Determination can be registered in a Court as judgment, to enable any outstanding amount to be enforced.
The duration of each costs assessment will vary from matter to matter.
As a guide:
Where the amount is in dispute is less then $100,000.00 it is anticipated that the assessment will be completed within 3 months.
Alternatively, if that amount exceeds $100,000.00 the assessment can be completed within 6 months.
If application has not been referred to an Assessor, the costs applicant should immediately inform the MCA by email that they are withdrawing their application.
If application has been referred to a Costs Assessor, the costs applicant must inform the Costs Assessor immediately, in attempt to minimise costs incurred on the assessment process. The costs of the assessment are still payable, regardless of the parties settling their matter, as immediately upon receiving a matter, time will be spent considering the matter and setting a timetable for the required material.
If parties have resolved their costs dispute between themselves, but still require the Costs Assessor to issue a Certificate of Determination on an agreed amount, they must advise the Costs Assessor of it, as the assessor will still have to turn their mind as to whether the amount is reasonable for the legal services provided.
When the assessment is complete, the Costs Assessor will email the parties to inform them, their role has come to an end. Also, that the determination will be sent to the parties by the MCA, upon payment of the costs for the assessment being paid.
Once the Costs Assessor completes their determination, their role has concluded.
All further correspondence about the assessment application should be sent to the MCA at:
If there is an "Inadvertent Error" in a certificate, it may be amended by the Costs Assessor.
A party seeking an amendment may email the MCA to request the amendment of an inadvertent error. It will then be considered and may be provided to the Costs Assessor for their consideration and response.
If, an inadvertent error has occurred, the Costs Assessor can issue an Amended Certificate of Determination to the MCA, which in turn can be sent to the parties.
Parties must appreciate that an inadvertent error is usually the incorrect spelling of a party’s name or a miscalculation. It is not, a difference of opinion to the amount determined by the Costs Assessor.
Yes, see Guide to Registering a Costs Assessor's Certificate will assist in that regard.
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