legal costs
📖 O que é legal costs? Significado e conceito
Legal costs encompass the fees paid to lawyers for their services and other associated expenses, known as disbursements. These can include significant amounts, as seen in an estate where legal costs and disbursements for substantive proceedings amounted to over $400,000, and further costs for probate, administration, and a minor wills claim were over $43,000. These costs are distinct from other estate expenses like tax, land tax, funeral expenses, property expenses, and accounting fees.
In some cases, a court or tribunal may order one party to pay another party's legal costs. This can happen on an 'ordinary basis' or an 'indemnity basis', with the latter typically covering a higher proportion of actual costs. For example, a court might order costs on an ordinary basis up to a certain date and on an indemnity basis thereafter, particularly if an offer of compromise was made that was more favourable than the judgment obtained.
However, obtaining an order for legal costs is not automatic. Tribunals, such as the NSW Civil Administrative Tribunal, may only award costs in 'special circumstances', which are considered out of the ordinary but not necessarily exceptional. Factors like a party unreasonably prolonging proceedings, raising issues without merit, or making frivolous or vexatious arguments might be considered, but simply raising issues that could have benefited from competent legal advice or that were not raised at first instance may not be enough to constitute special circumstances. Sometimes, parties are ordered to bear their own costs, meaning neither party pays the other's legal expenses for a particular motion.
📋 Requisitos
- Legal services and disbursements must be incurred in substantive proceedings, for estate administration, or related claims.
- For costs orders in tribunals, 'special circumstances' may need to be demonstrated, which are out of the ordinary but not necessarily exceptional.
- Conduct such as unreasonably prolonging proceedings or putting forward arguments lacking substance may be considered for costs orders.
- An offer of compromise that is more favourable than the judgment obtained can influence the basis on which costs are awarded (e.g., indemnity basis).
📝 Procedimento
- Parties incur legal costs for advice, representation, and disbursements.
- A party may apply to the court or tribunal for an order that another party pay their legal costs.
- The court or tribunal assesses the conduct of the parties and the merits of the arguments.
- The court or tribunal decides whether to award costs, and on what basis (e.g., ordinary or indemnity), or if parties should bear their own costs.
💡 Exemplos
- An estate paid over $400,000 for legal costs and disbursements related to a significant legal dispute.
- A court ordered a party to pay another's legal costs on an ordinary basis for part of the proceedings and on an indemnity basis for the remainder, due to an offer of compromise.
- An appeal for costs was dismissed by a tribunal because the appellant's conduct, while perhaps lacking competent legal advice, did not meet the threshold of 'special circumstances' for an award of costs.
- When a motion was filed, the court decided that each party should bear their own legal costs for that specific motion.
❓ Perguntas frequentes
What is the difference between 'ordinary basis' and 'indemnity basis' for legal costs?
When legal costs are awarded on an 'ordinary basis', it typically means a standard amount or proportion of the actual costs is recoverable. An 'indemnity basis' usually allows for a greater recovery of the actual legal costs incurred by the successful party, often covering a higher percentage.
Can I get my legal costs back if I win my case?
Not always. While a successful party may apply for a costs order, the court or tribunal decides whether to grant it and on what basis. In some tribunals, 'special circumstances' must be shown, and even then, the decision is at the discretion of the decision-maker.
What are 'disbursements' in legal costs?
Disbursements are out-of-pocket expenses incurred by lawyers on behalf of their client during a legal matter. These can include court filing fees, expert witness fees, barrister fees, search fees, and other administrative expenses necessary for the case.
What does it mean if parties are ordered to 'bear their own costs'?
If parties are ordered to bear their own costs, it means that each party is responsible for paying their own legal expenses, and neither party is required to pay the other party's costs for that specific part of the proceedings.
What are 'special circumstances' in relation to legal costs in a tribunal?
In a tribunal, 'special circumstances' are conditions that are considered out of the ordinary, though not necessarily exceptional, that might justify an award of legal costs. Factors like unreasonably prolonging proceedings or making frivolous arguments could contribute to establishing special circumstances.