FAQs about costs assessment (continued)
Can I get an extension to lodge my objections and responses?
No. The Regulations concerning the procedure for dealing with applications by the Manager are mandatory and must be followed. If objections and responses are not lodged as required the Manager will refer applications to a Costs Assessor as soon as is reasonably practical.
Any requests for extensions will be passed onto the Costs Assessor for their consideration.
Any objections or responses that are duly lodged after they are due will be forwarded to the Costs Assessor assigned the application.
Once notified of the request for an extension, Costs Assessors are required to give parties a reasonable opportunity to make written submissions, which may include objections and responses to objections.
How is a costs assessment conducted?
Costs assessments are not a proceeding in the Supreme Court. Costs Assessments are conducted on the papers by the parties corresponding with the Costs Assessor as directed.
Costs Assessors generally will not communicate directly with the parties and will communicate in writing with both parties at the same time.
You must communicate with the Costs Assessor as he or she directs. The Costs Assessment Section will not provide you with any other contact information other than in the notice of assignment.
The Costs Assessor is required to give the parties a reasonable opportunity to make submissions. The parties are also to comply with the notices and directions of a Costs Assessor. The Costs Assessor may require a party to provide particulars or produce documents. The Costs Assessor receives documentation and submissions, assesses the costs and then issues certificates of determination of the costs and a statement of reasons.
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 on the basis of the information provided.
Failure by a party to complay with the direction of a Costs Assessor may be an offence punishable by a fine.
Failure by a legal practitioner to comply with the directions of a Costs Assessor without reasonable excuse is capable of being professional misconduct.
What are certificates of determination?
In a practitioner/client or client/practitioner application, a Costs Assessor will issue a certificate of determination for a bill of costs by either confirming the bill or substituting the amount of costs in the bill for an amount that in the Costs Assessor's opinion is fair and reasonable.
In a party/party application a Costs Assessor will issue a certificate of determination of the fair and reasonable amount of costs to be paid as the result of a court or tribunal order.
What are certificates of the costs of the costs assessment?
In a practitioner/client or client/practitioner application, a Costs Assessor may issue a certificate of determination for the costs of the costs assessment. If a certificate for the costs of the costs assessment is not issued the Costs Assessment Scheme will pay for the costs of the costs assessment.
In a party/party application a Costs Assessor will issue a certificate of determination for the costs of the costs assessment.
Where a certificate for the costs of the costs assessment is issued, the Costs Assessor will determine which party is to pay the costs of the costs assessment.
The party liable for the costs of the costs assessment is to pay the amount in the certificate to the Manager, Costs Assessment.
If the costs of the costs assessment are not paid, the Manager, Costs Assessment may take action to recover the costs of the costs assessment.
How long does an assessment take and are there Time Standards?
The Costs Assessment Rules Committee (CARC) has published a document entitled "Time Standards in Costs Assessment and Reviews". This covers time expectations for both parties and for assessors. The time taken for each costs assessment depends upon the nature of the application and the conduct of the parties. Costs Assessors may set a timetable and a timeframe when corresponding with the parties.
What can you do if you are concerned that the assessment is taking too long or the Costs Assessor does not reply to your correspondence?
You may make an enquiry of the Costs Assessor requesting an estimate of the completion date.
If you are concerned at raising such a request with the Costs Assessor, you may contact the Manager, Costs Assessment to make a request for your query to be raised with the assessor independently.
The Manager will contact the Costs Assessor and advise that a party has expressed concern at the delay and/or requested an estimate of completion time and then allow the Costs Assessor an opportunity to respond to the query to both parties.
If any delay continues, you may contact the Manager again who will investigate the delay as a complaint and take action if necessary.
What happens if the parties settle and agree on the costs?
Immediately inform the Manager, Costs Assessment if the application has not been referred. Usually the application may be withdrawn or finalised with no further action.
If it has been referred to a Costs Assessor, inform the Costs Assessor immediately.
Both parties are to confirm the settlement and its terms. If they wish to indicate to the Costs Assessor the agreed amount and how to deal with the costs of the costs assessment, they may do so and request that the Costs Assessor include those amounts in the certificates of determination.
The costs of the assessment are still payable if the parties settle and the Costs Assessor will determine who is liable for them when a certificate of the costs of the costs assessment is issued.
What does a Costs Assessor do once his determination is complete?
A Costs Assessor is required inform the parties that the determination has been made and forward the certificates of determination and statement of reasons to the Manager, Costs Assessment.
Once the Costs Assessor completes their functions they have no further role and will not continue to determine or re-determine an application.
All further correspondence concerning the application should be sent to the Manager, Costs Assessment.
Who pays for the certificates?
If the Costs Assessor issues a certificate for the costs of the costs of the costs assessment, the Costs Assessor will advise the parties that the certificate(s) has been forwarded to the Manager, Costs Assessment and will be available to the parties on payment of the costs of the costs assessor.
Please allow at least seven days for the certificates and reasons to be forwarded and processed by the Court following notification.
The cost assessor has also determined the liability for these assessor's costs and the Manager, Costs Assessment will issue an invoice to the party liable for the costs of the costs assessment. However the Manager, Cost Assessment will accept payment of this amount from any party and if they are not the liable party they may seek to recover the amount paid from the liable party.
The most efficient and timely method of payment is by credit card to the NSW Court Service Centre by telephone on 1300 679 272.
Payment can also be made by bank cheque, solicitor's cheque or money order payable to "The Supreme Court of NSW" and may be made in person in the Supreme Court registry, or by post to GPO Box 3, SYDNEY NSW 2001.
Upon receipt of payment of the amount of the costs of the costs assessment in the certificate, the Manager will release the certificate of determination and the reasons to the parties.
If the amount is not paid, the Manager, Costs Assessment may recover the amount in the certificate from the party liable to pay it as a debt.
Can the Manager, Costs Assessment release the certificates without prior payment?
If the Costs Assessor does not issue a certificate for the costs of the costs assessment the certificates will be released to the parties without any need for payment.
If the Manager, Costs Assessment waived or postponed the filing fee for the application, the certificates will be released without the need for prior payment, however, the party determined to be liable for the costs of the costs assessment will still be required to pay the amount.
Otherwise, the Manager, Costs Assessment cannot waive or postpone the costs of a costs assessment, but has a discretion to release the certificates without payment.
A party may make an application to the Manager, Costs Assessment to release the certificates without prior payment. An application must be made in writing and set out the reasons for releasing the certificate. The Supreme Court form "Application to postpone, remit or waive payment of court fee" may be used and sent to the Manager, Costs Assessment.
If the Manager, Costs Assessment determines to release the certificates without prior payment, the party determined to be liable for the costs of the costs assessment will still be required to pay the amount.
What if there is an error in the certificates?
If there is an inadvertent error in a certificate it may be amended by the Costs Assessor.
A party seeking an amendment may contact the Costs Assessor directly to request an amendment of an inadvertent error. The Costs Assessor will consider the request. If the Costs Assessor determines to re-issue a certificate the Costs Assessor will send it to the Manager, Costs Assessment who will then forward it onto the parties.
Can I file the certificates as a judgment?
Guide to Registering a Costs Assessor's Certificate for further information.