Costs assessment – legal fees

(Under the Legal Profession Act 2007)

Generally solicitors can charge what is set down in the scales of costs for each court in the Uniform Civil Procedure Rules 1999 (subject to individual costs agreements):

• Schedule 1—Supreme Court
• Schedule 1—District Court
• Schedule 2—Magistrates Court.

If you dispute the amount of legal costs you have to pay, you may be able to settle through costs mediation.

You may also apply to the court for a costs assessment of all or part of the legal costs.

In this case, the court appoints an independent person (a costs assessor) to consider the bill and the client’s objections.

The assessor will consider all the material provided and determine a fair and reasonable amount for you to pay.

The court that will appoint the cost assessor depends on the amount of the legal bill:

• if the bill doesn’t exceed $150,000—Magistrates Court
• if the bill exceeds $150,000 and doesn’t exceed $750,000—District Court
• if the bill exceeds $750,000—Supreme Court.

If the lawyer and client can’t agree that the matter should go to a costs assessor, the application is referred to the court for a directions hearing.

Download the register of approved cost assessors (PDF, 239.6 KB).

Applying for a costs assessment

To apply for a costs assessment for legal fees, file both:

• Form 060 - Application for costs assessment (DOC, 40.5 KB)
• Form 046 - Affidavit (UCPR) (DOCX, 27.2 KB)

When you file the application, the registry allocates a date for a directions hearing before a judge or magistrate.

Fees

Filing fees: There is a fee for filing the originating application (Form 60) set by the Uniform Civil Procedure (Fees) Regulation 2019.

Costs assessor fees: There is a fee for asking the assessor to prepare written reasons post-assessment. The party who pays these costs may differ according to the individual situation and outcome. The fee is usually included as a disbursement in the costs assessed by the assessor.

Serving the application

Serve a copy of the application and the supporting affidavit on the other party or their legal representative within seven days of filing the application.

You may also need to serve the documents on other parties, such as a law practice or a third party payer (see Legal Profession Act 2007, s. 339).

Choosing a costs assessor

A costs assessor approved by the court can perform costs assessments.

If both parties agree on a costs assessor, they can file a request a consent order with the registry. Provide the costs assessor’s consent with the request if possible, dated and signed.

This ensures the costs assessor is willing and available to perform the assessment, and enables them to declare any conflicts of interest.

A suggested wording for the written consent of costs assessors is:

I, [name], consent to be appointed by the Court and to act as the costs assessor for [name parties of matter: Party A v Party B ].

I am not aware of any conflict of interest or duty that would make it improper for me to act as costs assessor for this matter.

The registrar can then make a consent order where appropriate and the directions hearing date is vacated. If the parties can’t agree on a costs assessor, parties may apply to the judge or magistrate to have a costs assessor appointed at a directions hearing. Alternatively, parties can apply to the Registrar for an appointment.

If an application is made to the Registrar on or after 6 April 2020, the process that applies can be found here.

The court can give the costs assessor powers including:

• administering an oath or receiving an affirmation
• examining witnesses
• requiring a party to be represented by another solicitor if a conflict of interest exists
• extending or shortening the time for taking a step in the assessment
• directing or requiring a party to produce documents
• giving directions about the conduct of the assessment process.

At the directions hearing

At the directions hearing, the judge or magistrate can:

• canvass any issues or potential problems
• make directions to the parties and decide any relevant issues
• order that that an itemised bill be prepared (if not provided)
• order that a particular costs assessor be appointed.

At the assessment

The costs assessor determines the procedure for the assessment and considers:

• whether it was reasonable for the lawyer to carry out the work relating to the legal costs
• whether the work was carried out in a reasonable way
• relevant costs agreements
• how fair and reasonable the legal costs are compared with the work, including:
  • compliance with the Legal Profession Act 2007
  • disclosure of costs
  • relevant advertising by the law practice about costs and skills
  • skill, labour and responsibility displayed by the solicitor
  • the retainer and whether work was done within the retainer’s scope
  • the matter’s complexity, novelty or difficulty
  • the quality of the work done
  • the place where, and the circumstances in which, legal services were provided
  • the time within which the work was required to be done
  • any other relevant matter.

After the assessment

The costs assessor files a certificate of assessment with the registry within 14 days after the assessment and gives a copy to the parties.

The parties or the court can then bring the matter on for a directions hearing. The court resolves any matters still in dispute and considers the costs assessor’s certificate in its judgment.

If you disagree with the assessor

You can request written reasons for the decision within 14 days of receiving the costs assessor’s certificate. The costs assessor must provide the reasons within 21 days.

You will need to pay the costs assessor’s costs for preparing the reasons. These costs will form part of your costs in any subsequent review.

You can also ask the court to review the assessor’s decision within 14 days of either receiving the written reasons or receiving the certificate of the costs assessor if you didn’t apply for reasons.

Give other involved parties notice of your application.