Costs determination vs costs assessment

s 180(2): an agreement must be written or evidenced in writing. s 180(3): a written offer may be accepted in writing or, for a non-conditional agreement, by conduct. s 180(4): the contract cannot provide that the legal costs to which it relates are exempt from assessment.

Consequence: an agreement is not a statutory bar to assessment. This subsection alone does not set rates, declare every agreement void or require an automatic refund.

The applicable determination regulates costs subject to an agreement made in accordance with the Uniform Law and other statutory qualifications. Section 141(3) allows higher recovery in unusual difficulty, complexity or importance, when the court is satisfied of the statutory conditions.

WA s 143 requires the firm, when making s 174(1)(a) disclosure, to inform the client whether the costs are subject to a costs determination. It does not expressly require the firm to produce a second hypothetical dollar quotation under the scale in every retainer.

Section 174 imposes costs-disclosure duties, subject to exemptions. Non-compliance can trigger s 178: the agreement is void, and costs generally cannot be recovered before assessment or an authorised costs-dispute determination. Section 185 separately voids agreements made contrary to Division 4.

Important: void costs terms are not necessarily a conclusion that no money at all is payable for services. Assessability, entitlement, repayment and any statutory restrictions must be analysed separately.

Under s 199(2), the assessor must decide whether a valid agreement exists and whether the costs are fair and reasonable. Section 200 includes the applicable s 172 principles and consideration of disclosure. Section 198 deals with applications and time limits. Sections 147–150 of the WA Application Act address certificates, binding effect, review and enforcement, alongside Uniform Law s 205.

The ordinarily applicable filing period is 12 months, with provisions for out-of-time applications. Check the relevant retainer commencement date: if first instructions preceded 1 July 2022, the Legal Profession Act 2008 regime may govern, according to PD 4.7.4.

PD 4.7.4, paragraphs 13–18: confer about the bills and disputed items, amounts and reasons; file a memorandum of conferral, the application, bills, applicable agreement and disclosures or estimates. Paragraph 27: contested agreement validity is unsuitable for provisional assessment under s 199(2)(a).

PD 4.7.2: provisional taxation in suitable cases. PD 4.7.5: out-of-time assessments. PD 4.7.3 and Order 66 r 42: bills of costs. Order 66 r 51: separate court power to fix costs in proceedings; not equivalent to the Legal Costs Committee setting scales.

The Court's current CPD landing page is updated as amendments issue; recheck the current version before filing.

Directly distinguishes a costs agreement from a Legal Costs Committee determination and describes the maximum hourly/item amounts prescribed by scales. The case arose under the former Legal Profession Act 2008. Tottle J quashed a taxing officer's preliminary decision after procedural-fairness and statutory-construction errors, including changing the proposed basis from agreement rates to scale rates without fair notice. It is not authority for automatically substituting the scale in every bill.

Forrester J set aside an agreement under the former Act s 288(2) because of unfairness/unreasonableness, including problems with the charging bases and estimates. The court did not fix an amount immediately; bills had to be reissued by reference to the proper scale, with assessment available. The request to declare the contract void on the separate ground was not granted. Later appeal: Delta Legal v Wood [2025] WASCA 162 addresses the agreement and disclosure issues; consult that appellate decision before relying on the first-instance outcome.

Under the former Act, all 38 invoices were held capable of assessment because the final bills and statutory treatment of interim bills made the application timely. The firm’s asserted concluded fixed-payment settlement was rejected.

Explains a solicitor–client costs assessment under the former Act where the retainer instructions predated 1 July 2022. Objections alleged duplicated, unauthorised, negligent and disproportionate work; an allegation is not necessarily a finding. The court recognised the need for proportionality and reasonable incurring of costs.

Applies WA s 141(3) to special costs. Spending more than the statutory scale because a firm charges a higher hourly rate is not enough by itself; unusual difficulty, complexity or importance is the relevant statutory basis. The judge permitted particular departures, not an unrestricted right to recover the full solicitor–client bill.

The Court of Appeal distinguished fixing a global amount of court-awarded costs from detailed taxation. The evidence was insufficient to fix the significant sum requested, so the court ordered costs to be assessed if not agreed. This concerns party/party appellate costs, not a solicitor–client retainer assessment.