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These questions represent those most commonly asked of the Costs Assessment section in relation to the review of costs assessors' determinations. While every care is taken with the responses they are of a general nature and should be taken as a guide only.
A party dissatisfied with the determination of a costs assessor has two options to challenge the decision. One method is review by a panel, which comprises two experienced costs assessors. The panels review process offers an efficient method to review a costs assessor's determination.
The second option is to appeal to the District Court of New South Wales. Section 384 of the Legal Profession Act 2004 (LPA) allows an appeal to the District Court but only on questions of law. The District Court has the power to make such a determination as should, in its opinion, have been made by the costs assessor. Section 385 of the LPA is another provision enabling an appeal to the Court. An appeal under this section is not limited to questions of law, but can only proceed if the Court grants the applicant leave to proceed. Once leave is granted, the hearing proceeds as if it is a 'fresh' hearing and is not limited to the issues raised during the assessment.
An application for a review must be lodged within 30 days of the certificate being forwarded to the parties. When an application for a review is lodged with the Manager, Costs Assessment, a panel is appointed. The Manager considers many issues in establishing the panel including the nature of the matter, the location of the parties and the avoidance of any conflict of interest. Once the Manager, Costs Assessment refers the application to a costs review panel, the operation of the determination of the original costs assessor is suspended.
An application may be made to the Manager, Costs Assessment to extend time to make an application. Applications to extend time by the Manager, Costs Assessment are to be made in writing and accompanied with the application for Review.
Applications to extend time must be sent to the proposed Review Respondent.
The Manager will confirm receipt of the application and indicate to the parties a timeframe for the Review Respondent to submit any submissions in reply.
An application to extend time should address:
The review panel will either affirm the determination of the costs assessor or set the original determination aside and make appropriate determinations about the amount of costs, who should pay the original assessor's costs and the party liable to pay the filing fee of the review. Another matter that a review panel determines is the costs of the review. When the review panel affirms a costs assessor's determination, the panel must require the party who applied for the review to pay the costs of the review. Again, if the review panel set aside the costs assessor's determination, but the costs allowed in the original determination are increased or decreased by less than 15%, the applicant for the review must pay the costs of the review.
Before lodging an application for review, a party should consider carefully what could be achieved by lodging such an application. Not only will the applicant be liable to pay the filing fee, but should the application fail, or fail to succeed by having the original determination varied by more than 15%, then they will also be liable for the costs of the review. If the outcome is varied by more than 15%, the panellists will determine how their costs are to be paid by the parties.
A party must give notice of the review application to the other side at least 7 days before lodging the application.
If a party lodges an appeal to the Court, without having lodged an application for a review, the Court may refuse to grant leave for the appeal and refer the matter to the Manager, Costs Assessment for a panel to be appointed: section 389 of the LPA.
Before proceeding to lodge an application for review, or filing an appeal to the Court, it is strongly suggested that you seek legal advice concerning your position.
03 Sep 2023
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