Part 31A Costs after 30 June 1994
(1) The provisions of this Part apply, subject to their terms, to and in respect of costs payable or to be assessed under any order of a court or under the rules.(2) The application of this Part is subject to the Legal Profession Act 1987 and the regulations made under that Act.
A court may, in any proceedings, exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings.
3 Assessed costs and other provisions
(1) Subject to this Part, where, by or under these rules, or any order of a court, costs are to be paid to any person, that person shall be entitled to assessed costs.(2) Where a court orders that costs be paid to any person, the court may, at any time prior to the costs being referred for assessment, further order that, as to the whole or any part (specified in the order) of the costs, instead of assessed costs, that person shall be entitled to:(a) a proportion specified in the order of the assessed costs,(b) the assessed costs from or up to a stage of the proceedings specified in the order, or(c) a gross sum specified in the order.
4 Order for costs—when payable
(1) Where, before the conclusion of any proceedings, a court or registrar makes an order for the payment of costs or a motion is refused with costs, the costs shall not, unless the court or registrar otherwise orders, be payable until after the conclusion of the proceedings.(2) Where, in any proceedings, it appears to the court or registrar, on application, that there is no likelihood of any further order being made in the proceedings, the court or registrar may order that any costs ordered to be paid shall be payable forthwith.
If a court makes any order as to costs, the court shall, subject to this Part, order that the costs follow the event, except where it appears to the court that some other order should be made as to the whole or any part of the costs.
Costs payable by or under the rules or any order of a court or registrar shall be payable on a party and party basis unless the rules or an order provide that they are payable on an indemnity basis.
(1) (Repealed)(2) Where a party is entitled to recover disbursements, those disbursements shall include any amount paid to the registrar for service of the statement of claim in the action by post under Part 7 rule 20 (1).
8 Costs order to confirm earlier costs orders
An order as to costs made in proceedings after 30 June 1994 shall be taken to expressly confirm all earlier orders as to costs made in the proceedings.
9 Order confirming rule as to payment of costs
Where a party to proceedings has become liable under a rule to pay any of the costs of the proceedings of any other party, the court may order the party so liable to pay those costs.
10 Proceedings removed into the District Court
Costs payable under an order of the District Court in respect of any step in an action removed into the District Court under section 21B (1) of the Act, taken before that removal, shall not exceed the costs that would have been payable under these rules in respect of that step if the action had not been so removed.
(1) In this rule:(a) references to a plaintiff extend to any person who makes a claim for relief in an action, and(b) references to a defendant extend to any person against whom a claim for relief is made in an action.(2) Where, in any action in a court’s General Division, it appears to the court on the application of a defendant:(a) that a plaintiff is ordinarily resident outside the Commonwealth of Australia,(b) that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so,(c) subject to subrule (3), that the address of a plaintiff is not stated or is mis-stated in the originating process,(d) that a plaintiff has changed his address after the commencement of the action with a view to avoiding the consequences of the action, or(e) that there is reason to believe that a plaintiff is unlikely to succeed in the action and will be unable to pay the costs of the defendant if ordered to do so,the court may if it thinks fit order that plaintiff to give such security as the court thinks fit for the costs of the defendant of and incidental to the action and that the action be stayed until the security is given.(3) The court shall not order a plaintiff to give security by reason only of subrule (2) (c) if it appears to the court that the failure to state the address of the plaintiff or the mis-statement of the address was made without intention to deceive.(4) Where the court orders a plaintiff to give security for costs, the security shall be given in such manner, at such time, and in such terms (if any) as the court may by order direct, and in the absence of any such direction shall be given to the satisfaction of the registrar.(5) Where a plaintiff fails to comply with an order under this rule, the court may, on terms, order that the action or any part of the action be struck out.
(1) Costs may not be awarded, and are not recoverable, in a court’s Small Claims Division except as provided by this rule.(2) The costs (including professional costs) of:(a) issuing a statement of claim, and(b) entering a default judgment, and(c) obtaining an order for judgment, and(d) enforcing a judgment,in relation to an action in a court’s Small Claims Division are recoverable as if the action were in the court’s General Division.(3) If a court gives judgment in its Small Claims Division, it may award costs to a party against another party.(4) If a court sitting in its Small Claims Division makes an order setting aside a judgment, it may award costs to a party against another party.(5) If a court:(a) adjourns or strikes out an action in its Small Claims Division or reinstates an action that has been struck out, and(b) is satisfied that the failure of the action to proceed was caused by the fault or neglect of a party to the action,the court may award costs against the party to another party.(6) Where the function of a court specified in Part 33 rule 1 (3) to adjourn, strike out, or reinstate an action as referred to in subrule (5) is exercised by the registrar, the function of the court to award costs under that subrule may also be exercised by the registrar.(7) If a party discontinues an action in a court’s Small Claims Division, the court may award costs against the party to another party.(8) The costs that may be awarded to a party under subrule (3), (4), (5) or (7) may include the party’s disbursements properly incurred and may also include:(a) an amount in respect of the party’s loss of earnings in attending the court for a hearing or pre-trial review, or both, not exceeding the amount that would have been payable to the party as witness’ expenses had the party been a witness in the action, and(b) if the party appeared by a solicitor or barrister—such professional costs as would have been recoverable by the plaintiff had default judgment been entered in the action,but may not include any other costs.(9) In exercising its discretion under section 34 of the Act in respect of an action in its General Division, a court must consider whether or not the action should have been heard and determined in the court’s Small Claims Division.
13 Applications and appeals under section 208M of the Legal Profession Act 1987
(1) In this rule:appeal means appeal to a court under section 208M of the subject Act.
application for leave means application under section 208M (2) of the subject Act seeking leave of a court to appeal to the court against a determination of a costs assessor.
subject Act means the Legal Profession Act 1987.
(2) An application for leave may be made by notice of motion under Part 15.(3) An application for leave must be filed and served within 14 days of the date on which the decision sought to be appealed against was given or within such extended time as the court may fix.(4) The court may extend the time prescribed in subrule (3) at any time.(5) The applicant for leave must file with, or include in, the notice of motion or a supporting affidavit:(a) a statement of the points on which the applicant objects to the decision of the assessor,(b) a statement of the reasons why leave should be given,(c) all of the documents which were submitted by the parties for the consideration of the assessor, or copies of those documents, and(d) where the assessor has given reasons for the decision sought to be appealed against, a copy of those reasons.(6) On the day fixed for the hearing or adjourned hearing of the application, the court may proceed to hear and determine the application or may adjourn it to another day.(7) The court may, whether or not it adjourns the application, require any party to produce any relevant document in the party’s possession or control, or to provide further particulars as to the party’s case in the application.(8) Where the court grants leave to appeal under section 208M (3) of the subject Act, it may give direction as to the extent, if any, to which matters before it, and decisions by it, on the application for leave are admissible or binding on the hearing of the appeal, and may:(a) proceed immediately to hear and determine the appeal, or(b) give such directions as to filing and service of documents, conferences, fixing of a hearing date, and any other matter as appear requisite for the hearing and determination of the appeal.(9) Unless the court otherwise orders, an application for leave and an appeal shall be heard and determined in chambers, and not in the presence of the parties.
Where a party applies for an extension of time, unless the court otherwise orders, the party shall, after the conclusion of the proceedings, pay the costs of an occasioned by the application, or any order made on or in consequence of the application.
15 Judgment by confession or agreement
Where judgment in favour of the plaintiff is entered up under Part 12 rule 2 or 3, subject to any provision to the contrary in any agreement filed in the action under Part 12 rule 3 there shall be added to the judgment debt:(a) if the judgment is entered up within 28 days after service of the statement of claim in the action—the costs of issuing and serving the statement of claim, or(b) otherwise—the costs of issuing and serving the statement of claim, or such other amount as the court on motion may allow for the costs reasonably incurred by the plaintiff before judgment, as the plaintiff may elect.
16 Non-admission of fact or document
(1) Where a party to any proceedings (in this rule called the disputing party) serves a notice under Part 14 rule 2 (3) or 3 (3) disputing a fact or the authenticity of a document and afterwards the fact or the authenticity of the document is:(a) proved in the proceedings, or(b) admitted for the purpose of the proceedings by the disputing party,unless the court otherwise orders, the disputing party shall, after the conclusion of the proceedings, pay the costs of the party upon whom the notice is served, assessed on an indemnity basis, occasioned by:(c) proof of the fact or the authenticity of the document, or(d) preparation for the purpose of proving the fact or the authenticity of the document,as the case may be.(2) An entitlement to costs under this rule shall not be affected by any order as to costs unless that order refers to the notice by the disputing party giving rise to the entitlement.(3) This rule has effect notwithstanding rules 19 and 20.
(1) Where the court disposes of an application under Part 15 in or for the purposes of or in relation to an action, the court may if it thinks fit order that an amount in respect of any additional costs incurred by reason of the application be paid by a party to the action to another party.(2) Where the court makes an order under subrule (1) that an amount be paid by a party to another party, it may if it thinks fit direct that the amount be paid within a time specified in the order.(3) Where the court makes an order under subrule (1) that an amount be paid by a party to another party, but does not direct under subrule (2) that the amount be paid within a time specified in the order, the amount shall become payable when judgment is given or entered up in the action to which the application relates, or when the action is otherwise finally disposed of.
Where a party amends a document under Part 16, with or without leave, the court may, on the application of any other party, and if it thinks fit, at any time order the party to pay to the other party such amount as the court determines in respect of any additional costs incurred by reason of the amendment.
Where, pursuant to Part 17 rule 1 (2), a party to any proceedings discontinues the proceedings without leave as to the whole or any part of the relief claimed by him against any other party, the discontinuing party shall, unless:(a) the court otherwise orders, or(b) the notice of discontinuance contains a statement under Part 17 rule 5 (3),pay the costs of the party against whom the discontinued claim is made, occasioned by the discontinued claim and incurred before service of notice of the discontinuance.
(1) Subject to subrule (2), upon the acceptance of an offer of compromise in accordance with Part 17A rule 5 (4), the defendant shall, unless the court otherwise orders, pay the costs in respect of the claim by the plaintiff against the defendant up to and including the day the offer was accepted.(2) If a notice of offer contains a term which purports to negative or limit the operation of subrule (1), that offer shall be of no effect for any purpose under Part 17A or this rule.(3) Subrules (4)–(6) apply to an offer which has not been accepted at the time prescribed by Part 17A rule 3 (8).(4) Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the court otherwise orders, the plaintiff shall be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis, in addition to the plaintiff’s costs incurred before that time, assessed on a party and party basis.(5) For the purpose of subrule (4), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the court otherwise orders, the plaintiff shall be entitled to the plaintiff’s costs in respect of the claim from 11 am on the day following the day on which the offer was made, assessed on an indemnity basis, in addition to the plaintiff’s costs incurred before that time, assessed on a party and party basis.(6) Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then, unless the court otherwise orders, the plaintiff shall be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim up to and including the day the offer was made, assessed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for the defendant’s costs in respect of the claim thereafter, assessed on a party and party basis.(7) For the purpose of subrule (6), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the court otherwise orders, the plaintiff shall be entitled to his costs in respect of the claim up to 11 am on the day following the day on which the offer was made, assessed on a party and party basis, and the defendant shall be entitled to his costs in respect of the claim thereafter, assessed on a party and party basis.(8) Where a plaintiff obtains an order or judgment for the payment of a debt or damages and:(a) the amount payable under the order or for which judgment is given includes interest or damages in the nature of interest, or(b) by or under any Act the court awards the plaintiff interest or damages in the nature of interest in respect of the amount,then, for the purpose of determining the consequences as to costs referred to in subrules (4) and (6), the court shall disregard so much of the interest or damages in the nature of interest as relates to the period after the day the offer was made.(9) For the purpose only of subrule (8), the court may be informed of the fact that the offer was made, and of the date on which it was made, but shall not be informed of its terms.(10) If, a reasonable time before the court makes an order under subrule (4) or subrule (6), the party to whom the offer is made requests the party making the offer to satisfy the court that the party making the offer was at all material times willing and able to carry out the offer:(a) if the court is so satisfied—the party making the request shall pay the costs of the party to whom the request is made occasioned by the request, or(b) otherwise:unless the court otherwise orders.(i) subrules (4) and (6) shall not apply, and(ii) the party to whom the request is made shall pay the costs of the party making the request occasioned by the request,(11) Unless the court otherwise orders, any application for an order for costs under subrule (4) or subrule (6) must be made immediately after the order or judgment giving rise to the entitlement to the order for costs is made or given.
The court may take an offer to contribute into account in determining whether it should order that the offeree should pay the whole or part of:(a) the costs of the offeror, or(b) any costs which the offeror is liable to pay to the plaintiff.
(1) The costs of a writ of execution, whether executed or not, and whether productive or not, shall be the amount allowed by the registrar of the home court.(2) unless the court or registrar otherwise orders, the costs of a writ of execution, whether executed or not, and whether productive or not, shall be added to and form part of the judgment debt.
23 Arbitration (Civil Actions) Act 1983
(1) Where proceedings are heard and determined under section 18 (3) (b) of the Arbitration (Civil Actions) Act 1983 (the Arbitration Act) and the determination of the court is substantially more favourable to the applicant for the order for rehearing (the applicant) than is the determination of the arbitrator, the court may order that the fee paid by the applicant for filing the application be refunded to the applicant wholly or to the extent specified by the court.(2) Where a party is required to pay the costs of another party in respect of a rehearing under section 18 (3) (b) of the Arbitration Act, those costs shall not include the fee paid for filing the application for the order for the rehearing unless the court so directs.(3) The court shall not give a direction under subrule (2) unless it is of opinion that the party ordered to pay the costs unreasonably caused the making of the application for the order for the rehearing.(4) Subject to subrule (5), where proceedings are heard and determined under section 18 (3) (b) of the Arbitration Act, and the determination of the court is not substantially more favourable to the applicant than is the determination of the arbitrator, the court:(a) shall not make any order for the payment by any other party of the applicant’s costs incurred by reason of the rehearing, and(b) shall order the applicant to pay the costs of every other party incurred by reason of the rehearing.(5) The court may in respect of a rehearing certify that the special circumstances of the case require the court:(a) to make an order referred to in subrule (4) (a), in which case the court may make that order, or(b) to refrain from making an order referred to in subrule (4) (b), in which case the court may refrain from making that order.(6) Where, by operation of section 18 (5) of the Arbitration Act, an order for rehearing of proceedings ceases to have effect, the applicant shall pay the costs of every other party incurred by reason of the order for rehearing, unless the court otherwise orders.(7) Unless the court otherwise orders, any application for an order or direction under this rule in respect of costs consequent on the rehearing of an action must be made immediately after judgment is given on the rehearing.