Lowe v Tu [2021] NSWDC 396

Lowe v Tu [2021] NSWDC 396

The Review Panel and Costs Assessor erred in issuing a single Certificate of Determination for multiple distinct costs orders. The legislation and binding authority (Wende) require that costs payable under separate orders must be assessed and certified separately. This was a material error of law because a different result on reassessment could not be excluded. Therefore, the determinations and certificates issued must be set aside and the matter remitted for a proper assessment pursuant to law.

Parties
First Appellant: Mr Geoffrey Lowe; Second Appellant: Mrs Mary Lowe; First Respondent: Mrs Shiu Sing Sze Tu; Second Respondent: Mr Shiu Sze Tu
Jurisdiction
Australia
Judgment Date
13 August 2021
Procedural Posture
Civil Appeal / Appeal From Determination of a Review Panel of a Costs Assessment
Outcome
Appeal allowed
Legal Topics
Costs Assessment, Certificates of Determination, Legal Profession Act 2004 (nsw), Material Error of Law in Costs Assessment, Appeal From Review Panel, Separation of Costs Orders
Costs Civil Procedure Costs Assessment Certificates of Determination Legal Profession Act 2004 (nsw) Material Error of Law in Costs Assessment Appeal From Review Panel Separation of Costs Orders

Case Brief

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Parties

Mr Geoffrey Lowe

First Appellant

Mrs Mary Lowe

Second Appellant

Mrs Shiu Sing Sze Tu

First Respondent

Mr Shiu Sze Tu

Second Respondent

Procedural Posture

Civil Appeal / Appeal From Determination of a Review Panel of a Costs Assessment

Legal Issues

  1. 1 Whether Costs Assessor and Review Panel erred in issuing a single Certificate of Determination for multiple costs orders
  2. 2 Whether principles in Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 require separate determinations and certificates

Ratio Decidendi

The Review Panel and Costs Assessor erred in issuing a single Certificate of Determination for multiple distinct costs orders. The legislation and binding authority (Wende) require that costs payable under separate orders must be assessed and certified separately. This was a material error of law because a different result on reassessment could not be excluded. Therefore, the determinations and certificates issued must be set aside and the matter remitted for a proper assessment pursuant to law.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed
  • Orders 2, 3, 4 and 6 of the summons filed 26 March 2021 made (including setting aside Certificates of Determination and remitting the matter to the Review Panel for redetermination according to law)