Division 1 Entitlement to costs
42.1 General rule that costs follow the event
(cf SCR Part 52A, rule 11)
Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.
42.2 General rule as to assessment of costs
(cf SCR Part 52A, rule 32; DCR Part 39A, rule 10; LCR Part 31A, rule 6)
Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis.
42.4 Power to order maximum costs
(cf SCR Part 52A, rule 35A)
(1) The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.(2) A maximum amount specified in an order under subrule (1) may not include an amount that a party is ordered to pay because the party:(a) has failed to comply with an order or with any of these rules, or(b) has sought leave to amend its pleadings or particulars, or(c) has sought an extension of time for complying with an order or with any of these rules, or(d) has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap:(i) progress of the proceedings to trial or hearing, or(ii) trial or hearing of the proceedings.(3) An order under subrule (1) may include such directions as the court considers necessary to effect the just, quick and cheap:(a) progress of the proceedings to trial or hearing, or(b) trial or hearing of the proceedings.(4) If, in the court’s opinion, there are special reasons, and it is in the interests of justice to do so, the court may vary the specification of maximum recoverable costs ordered under subrule (1).
(cf SCR Part 52A, rule 37)
If the court determines that costs are to be paid on an indemnity basis:(a) in the case of costs payable out of property held or controlled by a person who is a party to the proceedings:(i) in the capacity of trustee, executor, administrator or legal representative of a deceased estate, or(ii) in any other fiduciary capacity,all costs (other than those that have been incurred in breach of the person’s duty in that capacity) are to be allowed, and(b) in any other case, all costs (other than those that appear to have been unreasonably incurred or appear to be of an unreasonable amount) are to be allowed.
42.6 Amendment of pleading etc without leave
(cf SCR Part 52A, rule 15)
Unless the court orders otherwise, a party that amends a pleading or summons without leave must, after the conclusion of the proceedings, pay the costs of and occasioned by the amendment.
42.7 Interlocutory applications and reserved costs
(cf SCR Part 52A, rule 16; DCR Part 39A, rule 22; LCR Part 31A, rule 17)
(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:(a) costs that are reserved, and(b) costs in respect of any such application or step in respect of which no order as to costs is made,are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.(2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.
42.8 Dispute of fact subsequently proved or admitted
(1) In this rule:disputing party means the party who serves a notice disputing a fact under rule 17.3 (2).
fact in dispute means the fact that is the subject of a notice served under rule 17.3 (2).
requesting party means the party who is served with a notice disputing a fact under rule 17.3 (2).
(2) Unless the court orders otherwise, the disputing party must, after the conclusion of proceedings in which a fact in dispute is subsequently proved or is subsequently admitted by the disputing party, pay the requesting party’s costs, assessed on an indemnity basis, being costs incurred by the requesting party:(a) in proving the fact, or(b) if the fact has not been proved—in preparation for the purpose of proving the fact.(3) An entitlement to costs under this rule is not affected by any order as to costs unless that order makes particular reference in that regard.
42.9 Dispute of authenticity of document subsequently proved or admitted
(1) In this rule:disputing party means a party who serves a notice disputing the authenticity of a document under rule 17.4 (2) or 17.5 (3).
document in dispute means a document that is the subject of a notice served under rule 17.4 (2) or 17.5 (3).
requesting party means a party who is served with a notice disputing the authenticity of a document under rule 17.4 (2) or 17.5 (3).
(2) Unless the court orders otherwise, the disputing party must, after the conclusion of proceedings in which the authenticity of a document in dispute is subsequently proved or is subsequently admitted by the disputing party, pay the requesting party’s costs, assessed on an indemnity basis, being costs incurred by the requesting party:(a) in proving the authenticity of the document, or(b) if the authenticity of the document has not been proved—in preparation for the purpose of proving the authenticity of the document.(3) An entitlement to costs under this rule is not affected by any order as to costs unless that order makes particular reference in that regard.
42.10 Disobedience to rule, judgment, order or direction
(cf SCR Part 52A, rule 25; DCR Part 39A, rule 4)
If a party fails to comply with a requirement of these rules, or of any judgment or order of the court, the court may order the party to pay such of the other parties’ costs as are occasioned by the failure.
(cf SCR Part 52A, rule 27)
(1) Unless the court orders otherwise, an order as to costs with respect to an interlocutory injunction that continues an earlier interlocutory injunction, with or without modification, is to include the costs of the earlier injunction.(2) In this rule, interlocutory injunction means an interlocutory injunction granted by the Supreme Court, and includes a temporary injunction granted by the District Court under section 140 of the District Court Act 1973.
Division 2 Arbitration rehearings under Division 3 of Part 5 of Civil Procedure Act 2005
42.12 Rehearings under Division 3 of Part 5 of Civil Procedure Act 2005
(cf SCR Part 52A, rule 30)
(1) In this rule:party A means the party on whose application a rehearing has been conducted.
party B means any party to a rehearing other than party A.
rehearing means a rehearing conducted under Division 3 of Part 5 of the Civil Procedure Act 2005.
(2) If the determination of the court is not substantially more favourable to party A than is the determination of the arbitrator, the court:(a) may not order party B to pay the costs incurred by party A by reason of the rehearing, and(b) must order party A to pay the costs incurred by party B by reason of the rehearing.(3) Despite subrule (2), the court may certify that the special circumstances of the case require the court:(a) to make an order referred to in subrule (2) (a), in which case the court may make that order, or(b) to refrain from making an order referred to in subrule (2) (b), in which case the court may refrain from making that order.(4) If, by operation of section 45 of the Civil Procedure Act 2005, an order for rehearing of proceedings ceases to have effect, party A must pay the costs of party B incurred by reason of the order for rehearing, unless the court orders otherwise.(5) Unless the court orders otherwise, any application for an order for costs must be made forthwith after the court gives the judgment, or makes the order, giving rise to the entitlement to the order for costs.
Division 3 Offers of compromise
This Division applies to proceedings in respect of which an offer of compromise (the offer concerned) is made under rule 20.26 with respect to a plaintiff’s claim (the claim concerned).
(1) This rule applies if the offer concerned:(a) is made by the plaintiff and accepted by the defendant, or(b) is made by the defendant and accepted by the plaintiff.(2) The plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim, assessed on the ordinary basis up to the time when the offer was made, unless:(a) the offer states that it is a verdict for the defendant and the parties are to bear their own costs, or(b) the court orders otherwise.
42.14 Where offer not accepted and judgment no less favourable to plaintiff
(cf SCR Part 52A, rule 22; DCR Part 39A, rule 25)
(1) This rule applies if the offer concerned is made by the plaintiff, but not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim concerned no less favourable to the plaintiff than the terms of the offer.(2) Unless the court orders otherwise, the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim:(a) assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis under paragraph (b), and(b) assessed on an indemnity basis:(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
42.15 Where offer not accepted and judgment as or less favourable to plaintiff
(cf SCR Part 52A, rule 22; DCR Part 39A, rule 25; LCR Part 31A, rule 20)
(1) This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim concerned as favourable to the plaintiff, or less favourable to the plaintiff, than the terms of the offer.(2) Unless the court orders otherwise:(a) the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and(b) the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim, assessed on an indemnity basis:(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
42.15A Where offer not accepted and judgment as or more favourable to defendant
(cf SCR Part 52A, rule 22; DCR Part 39A, rule 25; LCR Part 31A, rule 20)
(1) This rule applies if the offer concerned is made by the defendant, but not accepted by the plaintiff, and the defendant obtains an order or judgment on the claim concerned as favourable to the defendant, or more favourable to the defendant, than the terms of the offer.(2) Unless the court orders otherwise:(a) the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim, to be assessed on the ordinary basis, up to the time from which the defendant becomes entitled to costs under paragraph (b), and(b) the defendant is entitled to an order against the plaintiff for the defendant’s costs in respect of the claim, assessed on an indemnity basis:(i) if the offer was made before the first day of the trial, as from the beginning of the day following the day on which the offer was made, and(ii) if the offer was made on or after the first day of the trial, as from 11 am on the day following the day on which the offer was made.
42.16 Costs with respect to interest
(cf SCR Part 52A, rule 22; DCR Part 39A, rule 25; LCR Part 31A, rule 20)
(1) If 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) the court, by a separate order, 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 rule 42.14, 42.15 or 42.15A, the court must disregard so much of the interest, or damages in the nature of interest, as relates to the period after the day on which the offer was made.(2) For the purpose only of this rule, the court may be informed of the fact that the offer was made, and of the date on which it was made, but must not be informed of its terms.
(cf SCR Part 52A, rule 22 (10) and (11); DCR Part 39A, rule 25; LCR Part 31A, rule 20)
(1) Before the court makes any order under rule 42.14 or 42.15, the party to whom the offer is made may request 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.(2) If the court is satisfied that the party making the offer was at all material times willing and able to carry out the offer, then, unless the court orders otherwise, the party making the request must pay such of the costs of the party to whom the request is made as have been occasioned by the request.(3) If the court is not satisfied that the party making the offer was at all material times willing and able to carry out the offer, then, unless the court orders otherwise:(a) rules 42.14 and 42.15 do not apply, and(b) the party to whom the request is made must pay the costs of the party making the request occasioned by the request.(4) Unless the court orders otherwise, any application for an order for costs under rule 42.14 or 42.15 must be made forthwith after the order or judgment giving rise to the entitlement to the order for costs is made or given.
Division 4 Offers to contribute
(cf SCR Part 52A, rule 24; DCR Part 39A, rule 26; LCR Part 31A, rule 21)
If a party has made an offer to contribute, as referred to in rule 20.32, the court must take into account both the fact and the amount of the offer in exercising its discretion as to costs.
Division 5 Proceedings discontinued or dismissed
42.19 Proceedings discontinued
(cf SCR Part 52A, rule 21; DCR Part 39A, rule 24; LCR Part 31A, rule 19)
(1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1.(2) Unless the court orders otherwise or the notice referred to in rule 12.1 (2) otherwise provides, the plaintiff must pay such of the defendant’s costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued.(3) Despite subrule (2), the defendant’s costs in an appeal to the District Court under section 91 of the Children and Young Persons (Care and Protection) Act 1998 are not payable by the plaintiff unless the court finds there are special circumstances to justify an order for their payment by the plaintiff.
42.20 Dismissal of proceedings etc
(cf SCR Part 40, rule 8)
(1) If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant’s costs of the proceedings to the extent to which they have been dismissed.(2) If the court makes an order striking out a defence, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the defendant must pay the plaintiff’s costs of the proceedings in relation to those matters in respect of which the defence has been struck out.
(cf SCR Part 53, rules 2, 3, 4 and 5; DCR Part 40, rule 1; LCR Part 31, rule 11A, Part 31A, rule 11)
(1) If, in any proceedings, it appears to the court on the application of a defendant:(a) that a plaintiff is ordinarily resident outside New South Wales, or(b) that the address of a plaintiff is not stated or is mis-stated in his or her originating process, and there is reason to believe that the failure to state an address or the mis-statement of the address was made with intention to deceive, or(c) that, after the commencement of the proceedings, a plaintiff has changed his or her address, and there is reason to believe that the change was made by the plaintiff with a view to avoiding the consequences of the proceedings, or(d) that there is reason to believe that a plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so, or(e) that a plaintiff is suing, not for his or her 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,the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant’s costs of the proceedings and that the proceedings be stayed until the security is given.(2) Security for costs is to be given in such manner, at such time and on such terms (if any) as the court may by order direct.(3) If the plaintiff fails to comply with an order under this rule, the court may order that the proceeding on the plaintiff’s claim for relief in the proceedings be dismissed.(4) This rule does not affect the provisions of any Act under which the court may require security for costs to be given.
(cf SCR Part 52A, rule 18)
If a party has paid money into court, the court may, in exercising its discretion as to costs, take into consideration both the fact and the amount of the payment.
(cf SCR Part 52A, rule 38)
If the court orders that an account be taken and the account consists in part of costs, the court may, by the same or a later order, direct the registrar to refer those costs for assessment.
42.24 Costs of solicitor appointed as tutor
(cf SCR Part 52A, rule 41)
If the court appoints a solicitor to be the tutor of a person under legal incapacity in connection with any proceedings, the court:(a) may order that the costs incurred by the solicitor in performance of the duties of tutor be paid:(i) by the parties to the proceedings or any of them, or(ii) out of any fund in court in which the person under legal incapacity is interested, and(b) may make orders for the repayment or allowance of the costs as the case requires.
42.25 Costs of trustee or mortgagee
(cf SCR Part 52A, rule 42)
(1) Subject to subrule (2), a person who is or has been a party to any proceedings in the capacity of trustee or mortgagee is entitled to be paid his or her costs in the proceedings, in so far as they are not paid by any other person, out of the fund held by the trustee or out of the mortgaged property, as the case may be.(2) The court may order that the person’s costs not be so paid if:(a) the trustee or mortgagee has acted unreasonably, or(b) in the case of a trustee, the trustee has in substance acted for his or her own benefit rather than for the benefit of the fund.
42.26 Order confirming rule as to payment of costs
(cf SCR Part 52A, rule 49; DCR Part 39A, rule 17; LCR Part 31A, rule 9)
If a party to proceedings in the court has become liable under these rules 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.
(cf SCR Part 42, rule 7)
(1) If:(a) a person is ordered by the court, by subpoena or otherwise, to attend court:(i) for the purpose of giving evidence, or(ii) for the production of any document or thing, or(iii) to answer a charge of contempt, or(iv) for any other purpose, and(b) the person fails to attend in accordance with the order,the court may order the person in default to pay any costs occasioned by the default.(2) If:(a) a corporation is ordered by the court, by subpoena or otherwise, to produce to the court any document or thing, and(b) the corporation fails to produce the document or thing in accordance with the order,the court may order the corporation to pay any costs occasioned by the default.(3) This rule does not limit the power of the court to punish for contempt.
42.28 Orders as to costs in relation to instalment order
(cf DCR Part 31A, rule 2 (7A); LCR Part 27, rule 2 (11))
If the court is of the opinion that a party has acted unreasonably in respect of the application for an instalment order, or for the variation or rescission of an instalment order, the court may order the party to pay the other party’s costs in relation to the application, or such part of those costs as the court thinks fit.
42.29 Patents, trade marks and designs
(cf SCR Part 52A, rule 28)
(1) This rule applies to proceedings in the Supreme Court.(2) If:(a) an action or counter-claim for infringement of a patent, of a registered trade mark, or of the monopoly in a registered design, or(b) an application or counter-claim for revocation of a patent, or(c) an application for cancellation of the registration of a design or counter-claim for the rectification of the Register of Designs,proceeds to hearing, costs are not to be allowed to the parties delivering any particulars of breaches, or of objections in respect of any questions raised in those particulars and relating to that patent, trade mark or design, except in so far as those questions or particulars are certified by the Supreme Court to have been proved or to have been reasonable and proper.
42.30 Property (Relationships) Act 1984
(cf SCR Part 52A, rules 34 and 35)
(1) This rule applies to proceedings in the Supreme Court or the District Court in which the plaintiff commences proceedings for an order or relief under the Property (Relationships) Act 1984 and the court:(a) in relation to property, declares a right or adjusts an interest, or(b) makes an order for maintenance,of a value or amount that does not exceed the jurisdictional limit of the Local Court sitting in its General Division, as that limit was when the proceedings were commenced.(2) Unless the court orders otherwise, the plaintiff is not entitled to payment of his or her costs of the proceedings.(3) On the application of any person, the court may order that this rule does not apply in respect of any proceedings, including proceedings yet to be commenced.(4) If an order is made under subrule (3) in respect of proceedings to be commenced, the originating process by which the proceedings are later commenced must bear a note of the order made.
42.31 Recovery of assessed costs in Supreme Court
(cf SCR Part 52A, rule 46)
(1) A person is not entitled to his or her costs of proceedings in the Supreme Court (including costs of execution) to recover payment of costs included in a cost assessor’s certificate unless:(a) at the time of filing the certificate the amount of unpaid costs included in the certificate exceeds $150,000, or(b) it appearing to the Court that the person had sufficient reason for filing the certificate in the Court, the Court orders otherwise.(2) A party may apply for an order under subrule (1) without serving notice of motion.(3) If the applicant for an order under subrule (1) adds to the motion a request that the application be granted in accordance with this subrule, the Supreme Court may make the order in the absence of the public and without any attendance by or on behalf of the applicant.(4) A person is not entitled to his or her costs of filing a cost assessor’s certificate in the Supreme Court.Note. See also rule 36.10 in relation to the filing of cost assessors’ certificates.
At any stage of proceedings, the court may order a party’s legal representative to serve on the party:(a) a notice that specifies:(i) an estimate of the largest amount (inclusive of costs) for which judgment is likely to be given if the party is successful, and(ii) an estimate of the largest amount (by way of costs) that the party may be ordered to pay if the party is unsuccessful, or(b) a notice that specifies:(i) an estimate of the best outcome that the party is likely to achieve if the party is successful, and(ii) an estimate of the worst outcome that the party is likely to undergo if the party is unsuccessful.
42.33 Certain costs orders not to be made unless parties have attempted to agree on amount
Unless the court otherwise orders, an order as to costs is not to be made under rule 21.13, 33.11 or 34.3 if the court is not satisfied that the parties concerned have attempted, but failed, to agree on the amount of costs to be paid in relation to the matter for which such an order may be made under that rule.