Uniform Civil Procedure Rules 2005
Division 7 General
42.22 Money paid into court
(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.
42.23 Costs in account
(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, andthe court may order the person in default to pay any costs occasioned by the default.(b) the person fails to attend in accordance with the order,(2) If—(a) a corporation is ordered by the court, by subpoena or otherwise, to produce to the court any document or thing, andthe court may order the corporation to pay any costs occasioned by the default.(b) the corporation fails to produce the document or thing in accordance with the order,(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, orproceeds 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.(c) an application for cancellation of the registration of a design or counter-claim for the rectification of the Register of Designs,
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) adjusts one or more interests in property or makes an order for maintenance where the total value of all adjustments made, or of the order for maintenance, does not exceed the jurisdictional limit of the Local Court sitting in its General Division (as that limit was when the proceedings were commenced), or(b) declares a right in relation to property concerning which there was a bona fide dispute where the value of the extent of the right that was in dispute did 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.(5) In this rule, a reference to a certificate includes a number of certificates filed together under rule 36.10(1) and (2).Note.See also rule 36.10 in relation to the filing of cost assessors’ certificates.
42.32 Smyth orders
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.
42.34 Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court
(1) This rule applies if—(a) in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and(b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.(2) An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied that—(a) for proceedings that could have been commenced in the District Court—the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted, or(b) for proceedings under Part 2 of Chapter 7 of the Industrial Relations Act 1996—the commencement and continuation of the proceedings in the Supreme Court, rather than the Local Court, was warranted.
42.35 Costs order not to be made in proceedings in District Court unless Court satisfied proceedings in appropriate court
(1) This rule applies if—(a) in proceedings in the District Court, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $40,000, and(b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.(2) An order for costs may be made, but will not ordinarily be made, unless the District Court is satisfied the commencement and continuation of the proceedings in the District Court, rather than the Local Court, was warranted.