A registered costs assessment certificate is enforceable as judgment of the relevant Court.

In Cappello v Homebuilding Pty Ltd [2024] NSWCA 88, Adams & Partners Lawyers (APL) sought and obtained an order for the summary dismissal of a Summons seeking judicial review of a District Court enforcement order in relation to a judgment entered following registration of a costs assessment certificate.

Where parties to a legal dispute cannot agree on legal costs payable, the costs dispute is often decided by a process known as costs assessment, where a costs assessor reviews the relevant invoices and determines the fair and reasonable costs payable. The costs assessor then issues a certificate of determination setting out the amount to be paid. The certificate of determination is deemed to be a judgment when registered with a Court.

In the present case, APL registered a certificate of determination in the District Court following costs assessment and sought to obtain further enforcement orders in that Court. The Court made an order allowing the Sheriff to enter the judgment debtors’ premises to execute a writ for levy of property. The judgment debtors filed a Summons in the Court of Appeal for judicial review of the order allowing the Sheriff to enter their premises. The judgment debtors argued that the District Court cannot make an order for the Sheriff to enter the premises as the judgment was not a judgment of that Court but entered following the registration of the certificate issued by a costs assessor.

APL argued and His Honour Kirk JA accepted that the judgment debtors’ Summons should be dismissed pursuant to UCPR 13.4 since there was no issue with the underlying certificate, the judgment debtors had unsuccessfully challenged the underlying certificate and that legislation provides that the certificate is deemed to be a judgment once registered. In dismissing the Summons, His Honour concluded that the judgment debtors’ argument is contrary to the statutory schemes which facilitate enforcement of a certificate of determination of costs by treating it as though it was a judgment of the relevant Court.

His Honour held that there was nothing in the line of authorities, including the decisions of  Calandra v Murden [2015] NSWCA 231; Doyle v Hall Chadwick [2007] NSWCA 159; Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172; Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 to undermine the position that registered costs determinations were enforceable as though they were judgments of the relevant Court.

The decision also highlights the importance of a properly drafted Calderbank offer and the potential costs ramifications. APL was able to obtain indemnity costs in favour of its client on the basis that a Calderbank offer made to the judgment debtors was not accepted and the Court found that it was unreasonable of the judgment debtors not to accept the offer. For more on offers to resolve legal proceedings and the costs consequences see the article written by Kenneth Ti, Senior Associate at APL: https://www.adamslawyers.com.au/offers-to-resolve-proceedings/.

Written by Malik Anne

Mallik

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