Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170

Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170

The Court (majority) held that while an application for costs assessment may cover multiple costs orders, determinations and certificates must be made for each underlying court/tribunal order. The issue of a global certificate encompassing separate orders (particularly by different courts and with differing parties, including legal aid status) was not permissible; the District Court had erred in law by upholding such a process. Consequently, the global certificates were set aside and the matter remitted for proper separate determinations and any necessary orders.

Jurisdiction
Australia
Judgment Date
02 June 2014
Procedural Posture
Judicial Review; Related Costs Assessment Appeal / Court of Appeal Judgment Following District Court Dismissal of Appeal
Outcome
Majority: Application allowed in part (certificates set aside, remitter); Dissent (Barrett JA): Proceeding dismissed.
Legal Topics
['costs Assessment' 'party/party Costs' 'statutory Judicial Review' 'legal Aid and Costs' 'remittal to Court' 'interpretation of Court Orders' 'partnership Liability for Costs']
['civil Procedure' 'legal Profession Law' 'costs'] ['costs Assessment' 'party/party Costs' 'statutory Judicial Review' 'legal Aid and Costs' 'remittal to Court' 'interpretation of Court Orders' 'partnership Liability for Costs']

Case Brief

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Procedural Posture

Judicial Review; Related Costs Assessment Appeal / Court of Appeal Judgment Following District Court Dismissal of Appeal

Legal Issues

  1. 1 ['Whether multiple costs orders from different courts can be assessed and certified in a single application and certificate under Legal Profession Act 2004 (NSW)' 'Whether the costs certificate can reflect a global sum, or must specifically allocate assessed costs to each underlying costs order' 'Whether the costs of an arbitration conducted during court proceedings are recoverable under a subsequent general order for costs' "Whether the benefit of costs protection under s 47 of the Legal Aid Commission Act 1979 (NSW) for a 'legally assisted person' extends to a partnership or other non-legally-aided parties" 'Whether s 369(3)(c) of the Legal Profession Act 2004 (NSW) (costs of costs assessment if reduced by 15% or more) applies to party/party costs assessment']

Ratio Decidendi

The Court (majority) held that while an application for costs assessment may cover multiple costs orders, determinations and certificates must be made for each underlying court/tribunal order. The issue of a global certificate encompassing separate orders (particularly by different courts and with differing parties, including legal aid status) was not permissible; the District Court had erred in law by upholding such a process. Consequently, the global certificates were set aside and the matter remitted for proper separate determinations and any necessary orders.

Court Disposition

Majority: Application allowed in part (certificates set aside, remitter); Dissent (Barrett JA): Proceeding dismissed.

Orders

  • ["In matter 2013/54356: Dismiss the summons seeking leave to appeal. Order the applicant to pay the respondent's costs." "In matter 2013/149830: Set aside the orders made in the District Court on 15 February 2013 dismissing the appeal from the determination of the Review Panel dated 6 January 2012. Set aside the...