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Law Notes Litigation - Civil Procedure Notes

Costs Notes

Updated Costs Notes

Litigation - Civil Procedure Notes

Litigation - Civil Procedure

Approximately 162 pages

These notes aim to set out the relevant legal principles, and material facts from cases in order to demonstrate how those legal principles have been applied. Because of how heavily statute-focused this topic is, in some places I've extracted the relevant statute in the text or in a 'comment'.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also 'checklists', which you can use during revisions or ex...

The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation - Civil Procedure Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Lit 1 notes_ 3 costs

Table of Contents

3 Costs 1

3.30 Proportionality of costs 5

3.80 Duties of Litigants and costs 6

3.110 CPA Part 7 Judgment and orders s 98 Courts powers as to costs 6

3.120 Costs against Non-parties 7

3.130 Lawyers and costs 7

3.165 CPA s 99 – costs orders against legal practitioner - for serious neglect/incompetence or impropriety 9

99 Liability of legal practitioner for unnecessarycosts 9

3.170-1.80 cases on awarding costs against solicitors 10

3.190 Purpose of costs 10

3.210 PARTIES AND COSTS 10

3 Costs

3 Costs - read Chapter 3 omit [3.350 – 3.360]

Overview of costs issues

When determining what costs order court should make:

  1. Costs are in the discretion of the Court: s 98 CPA

    1. Costs follow the event (the loser pays) is the standard position: UCPR r 42.1

  2. Rationale for costs: Costs are not punitive.

    1. Eg in Dr Bronte Douglas v Lawton : order made was not punitive in terms but typical order, even though judge referred to ‘punishment’ costs order not overturned.

  3. Cost should be proportionate to importance and complexity of subject-matter of dispute: In any proceedings, the practice and procedure of thecourtshould be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute: s 60 CPA

    1. Note: unclear what it means in situations when you have very complex matters. Does this mean you can spend lots more?

    2. Eg in Zanella v Madden co-owner of property wanted to realize it, other coowner couldn’t be found, disappeared, co-owner conducted internet searched, but hadn’t advertised overseas. On balance of probabilities D was dead, alcoholic, would be 63, and no-one heard of him for over 20 years, in past times my have advertised but considering estate only $37k bearing in mind s 56 CPA cost is proportionality too great: Zanella v Madden

    3. eg in Vella v ANZ Banking – late request for documents to be produced, $100k of legal fees per day, bearing in mind ss 56-60 of CPA court will not interrupt trial to deal with late subpoenas or notices to produce – very difficult to convince court that a late notice to produce should be given an order - Young CJ couldn’t see how the material could be relevant – no order on notice ot produce – after evidence given by witnesses then matter of assurances by other party and notice to produce could be reheard

  4. Parties have obligation to assist court to further overriding purpose to facilitate just quick and cheap resolution of proceedings and therefore to comply with Court’s directions and orders: s 56(3)

    1. Eg in Priest v NSW – D was meant to give reports on a particular operation – however just provided 37 boxes of information – each of folder had something that responded but also a lot of extraneous material – breached obligation under s 56 – costs were awarded on an indemnity basis.

Awarding costs after conclusion of proceedings to parties:

  1. Costs are in discretion of the court (s 98 CPA) but under r 42 UCPR unless it appears to court that some other order should be made costs will follow the event

    1. Unsuccessful party may be ordered to pay entirety of costs of successful party even though successful party did not succeed on all issues. Unless particular issue/group of issues clearly dominant usually appropriate to award costs to successful party without attempting to differentiate between particular issues on which it was successful and those which it failed: Baulderstone

  2. Assessment Is on ordinary basis unless court otherwise orders: UCPR r 42.2

  3. GO TO NOTES ON OFFER OF COMPROMISE / CALDERBANK

Indemnity costs:

  1. Indemnity costs – awarded where relevant delinquency on part of unsuccessful party: Baulderstone. (eg evidence of misconduct that causes loss of time to court; fact that proceedings commenced in willful disregard of known facts; allegations groundless)

    1. What is insufficient for indemnity basis: Just because litigation complex, or because party fights proceedings fiercely, or because case no merit at end of hearing because its been lost.

  2. Evaluation of indemnity basis: Occasionally P costs are awarded on an indemnity basis to compensate party for misconduct of another: Colgate-Palmolive v Cussons. Costs awarded on an indemnity basis allow for all costs incurred except those that appear to have been unreasonably incurred or those that appear to be an unreasonable amount: UCPR r 42.5; EMI Records v Ian Cameron Wallace

    1. Discourages spending big on fancy lawyers.

  3. Note terminology is used in relation to solicitor-client and between adversaries [3.210].

Other Costs orders:

  1. No order as to costs – each party bears their own costs

  2. Costs in any event – party bears costs of particular step (motion or interlocutory dispute) regardless of final outcome

    1. This is when the judge thinks that a particular step shouldn’t have been taken

  3. Costs in the cause – party who is ultimately successful pays costs of particular step

Costs against third parties

  1. Third parties: Within discretion of court to award costs against third parties: s 98 CPA. (a) court will be reluctant to make costs orders to third parties but (b) will consider their role in the litigation. If they are litigation funders who hide behind the plaintiff costs could be awarded against them.

Costs against lawyers

  1. Note law: jurisdiction to order legal practitioner to pay costs must be exercised with care nad discretion and only in clear cases: Re Black Stump

  2. In general: costs can be awarded against lawyer under s 98 CPA

  3. Where lawyer been very bad: S 99 – only applies in fairly serious circumstances where costs have been occurred: ( s 99(a): serious neglect, serious incompetence or serious misconduct of a legal practitioner or s 99(b) improperly or without reasonable cause )

    1. Inherent jurisdiction cases - Even if Lawyer has acted imoprerly don’t necessarily impose costs – but should give sustainable reasons for...

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