Wende v Horwath (NSW) Pty Ltd

The case of Wende v Horwath (NSW) Pty Ltd concerned a dispute over the assessment of legal costs. The applicants sought to challenge a costs assessor's determination and a subsequent review panel's decision regarding costs ordered in their favour in three separate court proceedings. The primary dispute revolved around the validity of the costs assessment process and the subsequent review, as well as the interpretation of certain provisions of the *Legal Profession Act 2004* (NSW) and the *Legal Aid Commission Act 1979* (NSW). The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine several legal issues. These included whether the costs assessor's single application and certificate of determination were validly made in respect of three separate costs orders. The court also had to consider whether the review panel had conducted a proper "review" and provided adequate reasons for its decision. Further issues involved the scope of a costs order where it followed a rehearing after an arbitrator's hearing, and whether a limit on recoverable costs under a costs order against a legally assessed person extended to that person's partners. Finally, the court considered the applicability of section 369(3)(c) of the *Legal Profession Act 2004* to party/party costs and the definition of a "legally assisted person" under the *Legal Aid Commission Act 1979*.

The Court of Appeal found that the costs assessor's approach of consolidating three separate costs orders into a single assessment was procedurally flawed. The court held that the review panel had failed to conduct a proper review and had not provided adequate reasons for its determination. Consequently, the certificates of determination issued by both the costs assessor and the review panel were set aside. The court also clarified that section 369(3)(c) of the *Legal Profession Act 2004* applied to party/party costs.

In relation to the specific matters before it, the Court of Appeal dismissed the summons seeking leave to appeal in one matter, ordering the applicant to pay the respondent's costs. In the other matter, the court set aside the District Court orders that had dismissed the appeal from the review panel's determination. The court further set aside the certificates of determination from both the review panel and the costs assessor, remitting the matter to the District Court to make consequential orders and to address the costs of the assessments. The respondent in this matter was ordered to pay the applicants' costs in the Court of Appeal.