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Costing: When a taxation really costs

Costing: When a taxation really costs

By Ben Wyatt


A Costs Court decision to not apply Order 63.85 has been challenged. In Laro-Bashford & Ors v Mihos [2016] VSC 77 (7 March 2016) the respondent client sought a review of a determination made by a costs registrar in the Costs Court in November 2015. More particularly, the challenge was to the decision to not apply Order 63.85 and disallow the claim by the solicitor for the drawing of the bill of costs and attending the taxation/assessment of costs. Introduced some years ago, Order 63.85 provided judicial officers with power to disentitle the party claiming the costs of having the bill drawn and the attendances leading up to and including the taxation if the bill of costs was reduced by more than 15 per cent. This rule change created an immediate dilemma for drafters of bills, and cost consultants were understandably concerned about the possibility of a disentitlement to claim the costs of drawing a bill and attending the taxation where the overall costs, which may have included barristers’ fees and other disbursements, were reduced by more than 15 per cent. In this case, Judicial Registrar Meg Gourlay determined that as both the disbursements (predominantly barristers’ fees) and the legal fees had been respectively reduced by more than 15 per cent, the exercise of the discretion had been undertaken incorrectly. Rather than the client having to show why the reduction should apply, it was up to the solicitor to show why the reduction should not apply. On that basis, Judicial Registrar Gourlay determined to disallow the solicitor’s costs of preparing and filing the summons for taxation, receiving and perusing the notice of objections, attending a call-over to list the taxation, and attending to obtain certification of payment of barristers’ fees and then further noted that given the operation of the rule, the solicitor had to repay the costs of preparing the bill and attending the taxation as the solicitor’s client should not bear these costs. The other party (a self-represented litigant) appeared in person, so there were no costs that had to be paid by the solicitor seeking costs on behalf of the client. Application for review was upheld. Ben Wyatt is the principal of Sladen Legal.

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