Wende v Horwath (NSW) Pty Limited (No 5)

Wende v Horwath (NSW) Pty Limited (No 5) involves a dispute between the plaintiff, Wende, and the defendant, Horwath (NSW) Pty Limited, regarding the assessment of legal costs. The matter was originally heard in the District Court and subsequently appealed to the Court of Appeal. This case has now reached the Supreme Court on a further appeal, focusing on the costs associated with the assessment and reassessment of legal costs. The primary legal issue before the court was the proper application of legal principles in the reassessment of costs in light of the Court of Appeal’s previous decisions. The court was required to determine whether the reassessment process adhered to the applicable legal standards and if the previous orders regarding costs were correctly made.

The Supreme Court, in its decision, found that the reassessment of the defendant’s costs and the costs of the costs assessment was not conducted in accordance with the reasoning provided by the Court of Appeal. The court emphasised that the reassessment should be guided by the principles set out in the Court of Appeal's judgments. It was held that the reassessment process did not appropriately consider these principles, leading to an incorrect outcome. Consequently, the Supreme Court ordered a remittal of the reassessment to a new costs assessor, Ms K M Dulhunty, with specific instructions to redetermine the applications according to law, taking into account the Court of Appeal's reasoning. Additionally, the Supreme Court made a decision regarding the costs incurred in the District Court since the date of the Court of Appeal’s decision, ruling that no order should be made concerning those costs.

In summary, the Supreme Court has mandated a reassessment of the defendant's costs and the costs of the costs assessment by a new assessor, ensuring that the reassessment aligns with the legal principles articulated by the Court of Appeal. The court has refrained from making any order regarding the costs incurred in the District Court since the Court of Appeal's decision, thereby concluding the current phase of the litigation concerning the costs assessment.