November 2015
A recent decision of the NSW Court of Appeal clarified the issue as to whether a cost assessor can issue a single certificate of determination when assessing costs arising from more than one costs order.
Basten JA in eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284 held that a cost assessor can issue a single certificate of determination in circumstances where a single application has been filed for cost assessment and in which separate costs orders have been made in favour of the same successful parties.
Basten JA distinguished the contentious 2014 decision of the Court of Appeal in Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170; 86 NSWLR 674.His Honour stated at paragraph [49] that
“While the procedure may not accord with the statutory language, as construed in Wende, it does not follow that Parliament intended that the resultant determination and certificate should be invalid and of no effect. Any such conclusion depends upon the ascertainment of the objective meaning of the statute, read in context.”
The decision in eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd is also relevant to the application of the s 60 Civil Procedure Act proportionality principle to the assessment of fair and reasonable costs under s 364 Legal Profession Act 2004.