Inadequately pleaded objections in a Notice of Objections is neither fair or efficient.

Speets Investment Pty Ltd v Bencol Pty Ltd [2021] QSC (unpublished)

BS10496.19 Boddice J Reasons for Judgment (002).pdf

Download PDF • 415KB

COSTS – REFERRAL UNDER RULE 717 – INADEQUATELY PLEADED OBJECTIONS

These are reasons under referral from a Costs Assessor (I) under rule 717 of the Uniform Civil Procedure Rules on a point of law. The question for the Court was "whether a costs assessor is required to consider further submissions that broadens out inadequately pleaded objections in the Notice of Objections"[2]

By way of background the Costs Assessment followed the normal path where the Costs Applicant was invited to provide additional submissions on two particular points as listed in the Notice of Objections. In response the Costs Applicant provided those responses and subsequently the Costs Respondent requested leave to provide additional submissions in response to the Costs Applicant’s Responses to the Notice of Objections. [3]

It is noted that a Reply to the Costs Applicant’s Response to the Notice of Objections is not a normal part of the Costs Assessment processes. In order to accord procedural fairness, the Costs Assessor granted leave for the Costs Respondent to provide the Response, not withstanding his reluctance to consider same. [3,6] On receipt of the Reply the Costs Assessor determined that that he would not consider the additional submissions as they should have been paid in the Notice of Objections. The Costs Assessor however submitted that if agreed he would refer the issue to the Court for determination. [3,8]

His Honour referred to rule 706 referring to the Notice of Objection where it is stated “that for each objection, concisely states the reasons for the objection, identifying any issue of law or fact a costs assessor should consider in order to make a decision in favour of the objector” [6]. His Honour also referred to rule 720 where the Costs Assessor is required to determine the procedure on Assessment and that “the procedure must be appropriate to the scope and nature of the dispute and the amount in dispute; be consistent with the rules of natural justice; and be fair and efficient” [8]

His Honour determined that in response to the question under rule 717 that "it is for the costs assessor to determine whether consideration of further submissions, that broaden out inadequately pleaded objections in the Notice of Objections, is appropriate having regard to the costs assessor's obligation to follow a procedure on the assessment that is appropriate to the scope and nature of the dispute and the amount in dispute; consistent with the rules of natural justice; and which is fair and efficient." [12]

A Costs Assessor is in a conundrum as while a Costs Assessor is required to accord the parties with procedural fairness, inadequately pleaded objections result in duelling responses. The failure of the Costs Respondent to articulate all its arguments in a Notice of Objections is not fair on the Costs Applicant, and neither is it efficient. This decision is not entirely helpful.