Going to Court often involves a significant investment of funds to be able to advance disputes that you have.  The bigger the dispute, and the higher up the Court system your dispute is heard, usually means a more significant cost.

After a judgment has been made in a Court proceeding, the Court will often invite parties to file submissions as to costs. 

Both costs and disbursements may be awarded.  Costs usually refer to a person’s legal cost in hiring a lawyer.  Disbursements are the expenses that are incurred in taking the proceedings for example Court filing fees, witnesses’ expenses and the serving of documents on other parties.

Sometimes these disbursements can also extend to travel and accommodation costs if you have to travel to another region for the Court hearing.

Once a judgment is delivered a Judge may:

(a)  order an unsuccessful party to pay costs and all disbursements to the successful party; or

(b)  order that costs “lie where they fall”, so that nobody is ordered to pay costs;

Costs of the various steps along the way to a hearing are usually reserved until a final judgment is made. 

The Court operates on a fixed scale in order to determine costs. This is based on a daily rate for the legal costs, and an allocation of time for each step. The more serious and complicated the matter, the higher the daily rate and the longer the time allocation.

Sometimes parties will try to settle matters with each other before going to Court by making what is called a ”Without Prejudice except as to costs” offer.

If the offer is rejected, the losing party can be hit with an increased costs award for not accepting a reasonable offer. When deciding on these types of costs, a Judge will take into account the parties conduct and how reasonably they acted in bringing or defending the case.

You cannot claim things such as loss of income for time taken off work to prepare for a proceeding. 

Successful parties usually get a costs award. It is very seldom their full costs spent.

If there is a contract that provides for full court costs, then the Court will usually allow those full costs, so it pays to include such a provision in any contract. The losing party then has to pay the costs in full.

Costs are a significant factor to be considered when engaging in Court proceedings. If you are concerned about the risk of taking a matter to Court, and what it might mean in terms of costs, it pays to get legal advice from a lawyer that specialises in Court litigation.  They will be able to indicate to you how costs may be applied in your particular situation.


Shaun Cousins