COSTS — appeals and reviews — review of two separate decisions of costs review panels — whether leave to appeal required in both appeals — Legal Profession Uniform Law Application Act 2014 (NSW), s 89(1)(a) — consideration of ‘amount of costs in dispute’
Quick Take
1The 'amount of costs in dispute' under s 89(1)(a) of the Legal Profession Uniform Law Application Act 2014 (NSW) assumes a dispute about quantum. It is measured by tracing the itemised objections against the assessor's determinations. A party who joined issue on line items in the assessment cannot avoid the $25,000 leave threshold by asserting, as a matter of principle, that the costs applicant is entitled to nothing.
2Arguments that the fairness and reasonableness of costs should reflect how the underlying process was pursued (here, using a general subpoena rather than the Trans-Tasman Proceedings Act 2010 (Cth) regime) are an impermissible collateral challenge to a final costs order. A party wishing to raise such matters should apply to the court that made the costs order, under s 98 of the Civil Procedure Act 2005 (NSW), or appeal that order.
3On an appeal by rehearing under s 89, the appellant must show material error by the review panel. The panel cannot err by failing to deal with an argument not put to it, and leave will rarely be granted where small sums and technical points have already been considered by both an assessor and a review panel.
