Skalkos v Assaf

Skalkos v Assaf is a case involving the assessment of costs ordered to be paid on an indemnity basis. The dispute was adjudicated in the Supreme Court of New South Wales. The plaintiff, Skalkos, sought to challenge the costs order made by the trial judge, arguing that the assessment was flawed and should be reconsidered.

The legal issues before the court included whether the statutory regime governing the assessment of costs on an indemnity basis differed from the common law regime, the onus of proof in such cases, the scope of material the costs assessor could consider, and the standard of error required to disturb the decision of the costs assessor. The court had to determine whether the trial judge's assessment met the required standard and whether the onus of proof was appropriately discharged by the party challenging the costs order.

In its reasoning, the court clarified that the statutory regime for assessing costs on an indemnity basis has distinct characteristics compared to the common law regime. The court noted that the onus of proof lies on the party challenging the costs order to demonstrate that the assessment was incorrect. The court emphasised that the costs assessor can consider a wide range of material, including the conduct of the parties and the nature of the dispute. The court held that the standard of error needed to justify disturbing the decision of the costs assessor is high, and the error must be material. The court found that the trial judge's assessment was based on proper consideration of the relevant material and did not contain any material error warranting a different outcome.

The court ultimately upheld the trial judge's assessment of costs, affirming that the onus was on the plaintiff to demonstrate that the assessment was incorrect. The court concluded that the plaintiff had not discharged this onus and that the assessment was appropriately made. The trial judge's order for costs on an indemnity basis was affirmed, and no further orders were made.