By and -


  • A certificate of determination and a judgment which arises on its filing are distinct.
  • A court has, in appropriate cases, both implied and statutory power to set aside a judgment without setting aside the certificate.
  • A certificate ought not be filed if there is, at the time of filing, no entitlement to be paid.

The recent Court of Appeal decision in Calandra v Murden [2015] NSWCA 231 (‘Calandra’) illustrates the importance of the distinction between a certificate of determination obtained on costs assessment or review, and the judgment that is obtained as a result of the filing of the certificate.

A certificate of determination is a final and binding determination of fair and reasonable costs under the Legal Profession Act 2004 (NSW) (‘LPA’)
s 372; the Legal Profession Uniform Law Application Act 2014 (‘LPUL Application Act’) s 73. It is not, without more, enforceable. It becomes enforceable by a two-stage process in which the certificate is:

•  filed with a court, whereupon it is ‘taken to be a judgment’ of that court: LPA ss 368, 369, 378, 379; LPUL Application Act ss 70(5), 71(3)(a), 87(2), 88(3); and

•  entered as a judgment by that court pursuant to the Civil Procedure Act 2005 s 133 and the Uniform Civil Procedure Rules (UCPR) 36.10.

Interesting questions arise – especially in an insolvency context – as to the status and utility of a ‘taken to be… judgment’ before it is entered and thereby made enforceable, but they are outside the scope of this article. The point is that in order to enforce – through any of the enforcement methods prescribed by the Civil Procedure Act 2005 and the UCPR – the amount of fair and reasonable costs determined by a costs assessor or review panel and set out in the certificate of determination, the certificate must be filed and entered.

Once filed, the ‘taken to be… judgment’ is not a judgment of the court in the sense of a judgment delivered as a result of a determination of a dispute between the parties. It is simply taken to be one for enforcement purposes (Frumar v The Owners of Strata Plan No. 36957 [2010] NSWCA 172 (‘Frumar’) per Handley AJA (at [38], [40])). The enactment of a machinery provision to give the status of a judgment, for enforcement purposes only, to a decision of a body other than the court in which the certificate is filed is not new (see for example, Opie v Opie (1951) 84 CLR 362; Building and Construction Industry Security of Payment Act 1999 (NSW) s 25(1)). However, it is novel in the context of legal costs and its working out in the 20 years since it was enacted has caused some difficulty (see Frumar; Aquaqueen International Pty Ltd v Gilles [2014] NSWSC 804; Coshott v Parker [2015] NSWSC 197).

The process of filing the certificate and the entry of judgment are only two aspects of the process. Another aspect practitioners need to consider, illustrated by Calandra, is that it is only appropriate for a party to file, and a registry to accept for filing, a certificate where there is an amount of ‘unpaid costs’ (LPA s 368(5)). The filing of a certificate contrary to this statutory precondition is irregular, against good faith and liable to be set aside by a court in the exercise of its discretion under either its implied power to correct its record or under an available
statutory power.

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