Fordyce v Leung as executor of the estate of the late Robert Ho; Fordyce v Leung as executrix of the estate of the late Robert Ho

The appeal concerned the assessment of costs in a proceeding involving the estate of the deceased, Robert Ho. The appellant, Fordyce, was the plaintiff in the original proceeding and the respondent, Leung, was the executor of Robert Ho's estate. The primary dispute was the correctness of the assessment of costs by the trial judge, particularly the issuance of interim or pre-completion certificates, and whether the parties were given a reasonable opportunity to be heard on the issue of those certificates. The case was heard in the Supreme Court of Victoria.

The central legal issue was whether the trial judge had the authority to issue interim or pre-completion certificates in the context of a costs assessment, and if so, whether the process provided the parties with a reasonable opportunity to be heard. Specifically, the court needed to determine whether these certificates were "on account of" the ultimate liability for costs or "for" specific items, and what the implications of this distinction were for the procedural fairness of the assessment process.

The court held that the trial judge had the authority to issue interim or pre-completion certificates in certain circumstances. However, the court emphasised that the certificates must be issued in a manner that ensures procedural fairness, including providing parties with a reasonable opportunity to be heard. The court found that the trial judge had not provided such an opportunity in this case, as the certificates were issued without adequate notice and without an opportunity for the parties to respond. As a result, the appeal was allowed, and the costs assessment was set aside.

The final orders of the court included the setting aside of the costs assessment and the remittal of the matter to the trial judge for reconsideration in accordance with the court's findings. The court also noted that the trial judge should ensure that any future interim or pre-completion certificates are issued in a manner that allows for a fair and reasonable opportunity for the parties to be heard.