District Court New South Wales Medium Neutral Citation: Lowe v Tu [2021] NSWDC 396 Hearing dates: 5 August 2021 Written Submissions 11 August 2021 Date of orders: 13 August 2021 Decision date: 13 August 2021 Jurisdiction: Civil Before: Coleman SC DCJ Decision: (1) Appeal allowed. (2) I make Orders 2, 3, 4 and 6 in the summons filed 26 March 2021. (3) Each party to file with my Associate submissions as to costs no longer than three pages in length within seven days of the date of these orders. The question of costs will be dealt with on the papers, absent a party requiring an oral hearing. Catchwords: JUDICIAL REVIEW – Whether Costs Assessor and Costs Review Panel erred in issuing single Certificate of Determination of Costs for two separate costs orders – Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 – Error Confirmed – Remitted Back to the Review Panel COSTS – Costs Assessment under the Legal Profession Act 2004 (NSW) – appeal from Determination of Review Panel to District Court pursuant to s 384 Legislation Cited: Legal Profession Act 2004 (LPA) s 384 Cases Cited: eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304; [2011] NSWDC 55 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29]-[30] MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 Sze Tu v Lowe [2014] NSWCA 462; 89 NSWLR 317 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Voicu v The Owners Strata Plan No 1624 [2020] NSWCA 52 Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 Wende V Horwath (No 2) [2015] NSWCA 416; (2015) 91 NSWLR 588 Texts Cited: N/A Category: Principal judgment Parties: Mr Geoffrey Lowe (First Appellant) Mrs Mary Lowe (Second Appellant) Mrs Shiu Sing Sze Tu (First Respondent) Mr Shiu Sze Tu (Second Respondent) Representation: Counsel: Ms M Castle (Appellants) Ms J McDonald (Respondents) Solicitors: HWL Ebsworth Lawyers (Appellants) CLS Legal (Respondents) File Number(s): 2021/85346 Publication restriction: N/A Judgment BACKGROUND 1. These proceedings concern an appeal from a determination of a Review Panel of a Costs Assessor's Determination with respect to proceedings between the appellants (whom I will refer to from time to time as Geoffrey and Mary but without meaning any disrespect) and the respondents. 2. It would perhaps be an understatement to say that the litigation between the parties which has given rise to the costs assessment the subject of this appeal have been hard fought. The proceedings have a lengthy and clearly expensive history. The proceedings were originally commenced in the Supreme Court of New South Wales in 2005. I will not go into detail of the issues of the proceedings as that is unnecessary for the purposes of this appeal. 3. The proceedings were originally heard before Smart AJ for 25 days in 2009‑2011. Unfortunately, his Honour fell ill and could not finalise the proceedings. The proceedings were then heard and determined by Gzell J, who delivered Judgment on 5 December 2012 largely in favour of the plaintiffs. His Honour made orders on 13 March 2013, including the following orders with respect to costs: 9. With the exception of (a) costs the subject of order 10 below (b) costs which have previously been the subject of a cost order in favour of a party to these proceedings and (c) costs which were otherwise specifically the subject of an order reserving the costs, the Second, Third, Fifth and Sixth Defendants pay the Plaintiff's costs of the proceedings, including the proceedings before Smart AJ. 10. The Plaintiffs pay: a. The Defendants costs of and incidental to the disputed application before Gzell J, determined on 3 August 2012; and b. The Fifth and Sixth Defendant's costs of and incidental to the hearing before Smart AJ concerning the Plaintiffs jurisdictional objection which was the subject of his Honour's 24 March 2011 Judgement. 11. The Court notes that the costs ordered to be paid by paragraphs 9 and 10 above are payable now (subject to assessment) and shall not be deferred until the completion of the taking of the enquiry provided for in paragraph 7. 1. The proceedings then went to the Court of Appeal who allowed the appeal: Sze Tu v Lowe [2014] NSWCA 462; 89 NSWLR 317. The Court of Appeal determined the question of costs in a separate Judgment: Sze Tu v Lowe (No 2) [2015] NSWCA 91. Relevantly, at [4] and [63] of the Court's reasons on costs, Gleeson JA, with whom Meagher and Barrett JJA agreed, said: "[4] The appeals were allowed and the orders of the primary judge (Gzell J) made on 13 March 2013 against the appellants was set aside. The costs orders below also set aside, other than certain interlocutory cost orders in favour of the appellants and the other defendants in the proceedings on discrete issues. … [63] The costs position must now be assessed as if the result before Gzell J had been as this Court has found…"" 1. The orders made on 10 April 2015 by the Court of Appeal with respect to costs were relevantly as follows: 1. The first and second respondents (Geoffrey and Mary) pay 85% of the respective appellants costs of the appeal. 2. In lieu of orders 9 and 11 of the orders made by Gzell J on 13 March 2013, substitute the following orders: 9(a) The first and second plaintiffs (Geoffrey and Mary) pay the second, third, fifth and sixth defendants costs of the proceedings at first instance, including the proceedings before Smart AJ. … 11. The Court notes that the costs ordered to be paid by paragraph 9(a), (b) and (c) above and paragraph 10 of the orders made by Gzell J on 13 March 2013 are payable now (subject to assessment) and shall not be deferred until the completion of the taking of the enquiry provided for in paragraph 3(iv) of the orders made by this Court on 23 December 2014" (emphasis added) THE ASSESSMENT OF COSTS 1. On 17 July 2015, the respondents to these proceedings (the appellants in the Court of Appeal who were the fifth and sixth defendants at first instance) applied for an assessment of the costs of the appeal proceedings pursuant to order 1 of the orders of 10 April 2015. Those costs were assessed and have been paid. They are not the subject of any issue in this appeal. 2. On 28 September 2017, the respondents to these proceedings applied for assessment of the costs of the first instance proceedings. They say that assessment only dealt with one cost order, namely Order 2 made by the Court of Appeal in so far as it substituted a new order 9(a) to the orders made by Gzell J. By order 9(a) Geoffrey and Mary were ordered to pay the costs of the proceedings at first instance, including the costs of the proceedings before Smart AJ. 3. The appellants say that what was the subject of the assessment of costs was the costs the subject of orders 9(a) (as made by the Court of Appeal) and order 10(a) and (b) of the orders of Gzell J which were undisturbed by the Court of Appeal. 4. Extracts of the Cost Applicants' Bill of Costs is at pp 644‑660 of the Court Book (CB). Relevantly, my attention was drawn to the heading of the Bill of Costs being pursuant to "Order of the Court of Appeal of 10 April 2015". The chronology and narrative of the Bill of Costs, filed by the present respondents relevantly said: "14. On 10 April 2015, the Court of Appeal delivered Judgment in the appellate proceedings, displacing the cost orders of Gzell J of 13 March 2013 and substituting costs orders in [the present respondents] favour. 15. This application claims party/party costs of [the present respondents] on an ordinary basis of the Supreme Court proceedings and including solicitor's costs, Counsels' fees, experts' fees, other disbursements and GST…" 1. On 4 February 2020, the Cost Assessor issued a Certificate of Determination which determined that Geoffrey and Mary were liable to pay the present respondents' costs in the sum of $1,218,622.83. The Cost Assessor also issued a Certificate of Determination of Costs for Cost Assessment requiring Geoffrey and Mary to pay the present respondents the sum of $41,305.21 for costs of the assessment. I am informed that the present respondents have paid that amount and the Certificates of Determination were sent to the parties on 29 April 2020. 2. The Certificate of Determination of Costs was in evidence before me. At 8.22 and 8.25 of that document, the Costs Assessor set out the costs orders of Gzell J of 13 March 2013 and the Court of Appeal of 10 April 2015. 3. It is apparent from that Certificate of Determination of Costs that Geoffrey and Mary did take objection to the form of the Bill of Costs for assessment. They did contend that it was not drawn in accordance with the principles set out in Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170. So much can be seen from p 668 CB, being paras 14‑17 of Geoffrey and Mary's objections to the Bill of Costs. The present respondents responded to those objections: see paras 14‑21 of the Cost Applicants' Notice of Response at pp 717‑718 CB. 4. At [36]‑[38] of the Certificate of Determination, the Costs Assessor said: "36. The objection is that "the bill of costs does not differentiate the work involved in each of those costs orders as is required by the Court of Appeal in Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 that a cost assessor making an assessment of party/party costs under several costs orders must make a separate assessment in relation to each order". 37. The Cost Applicant submits that Wende is distinguishable on various grounds including that in that case orders were made in different jurisdictions and that all parties were not liable for all costs. Furthermore, in this matter, there is a single order not multiple cost orders. 38. I accept the Cost Applicants submissions." THE APPLICATION FOR REVIEW 1. On 29 May 2020, Geoffrey and Mary filed an Application for Review of Determination of a Costs Assessment. Relevant paragraphs of that application are as follows: "4. The Cost Assessor erred in law and/or in fact, in not giving reasonable consideration regarding the failure of the Review Respondent/s solicitors to reasonably particularise separate attendance/s in the Bill of costs in lieu of making single claims for such multiple attendance/s. It is respectfully submitted that the Cost Assessor unreasonably and unfairly rejected such submission contained in the Notice of Objections… Paragraphs 14 to 19 (both inclusive). The Review Applicant/s repeat their Objections aforesaid. PARTICULARS [a] See the Costs Assessors Reasons of Decision, paragraphs numbered 36 and 37.… … 9. The Cost Assessor erred in law and/or in fact, in unreasonably accepting the submission of the Review Respondent/s distinguishing the authority of Wende v Horwath [NSW] Pty Ltd [2014 NSWCA 170 [supra]. It was irrelevant to the ratio decidendi, as to the particulars required for an assessable itemised bill of costs, that order/s were made in different jurisdictions, nor that all parties were liable for all costs, nor that there was a single costs order herein. It is respectfully submitted that the Cost Assessor erred in law and/or in fact by not exercising his statutory power LPA section 358(B)(I), (II) to seek further and better particulars: Q. V. Smits v Buckworth (NSWSC), Young J, 3869/96, September 22, 1997, unreported, BC9704802. PARTICULARS [a] Refer to Cost Assessors Reasons of Decision supra paragraph/s 36‑37. 1. The Review Panel issued its determinations on 15 October 2020 and the Certificates of Determination were sent to the parties on 26 February 2021. The Costs Review Panel affirmed the determinations of the Costs Assessor. 2. In dealing with the Grounds of Review, the Review Panel relevantly said: "3. Paragraph 4. Adequate "particulars" of attendances and costs and Wend (sic.) v Horwath 1. This Ground is confusing. 2. In so far as it relates to the suggestion that the principles of Wende v Horvath apply, it has no merit. The costs assessed related to only one Order, that set out in paragraph 27 above. [This paragraph referred to and set out the Court of Appeal order that "the first and second plaintiffs pay the… fifth and sixth defendants costs of the proceedings at first instance including the proceedings of Smart AJ."] 3. The Cost Orders 9 to 11 of Gzell J of 13 March 2013 were dealt with by the Court of Appeal stating that its Order in relation to cost was "in lieu" of those Orders. … 5. The Assessors reasons, paragraph 36 and 37 rightly point out that in this case there was a single Order of the Court of Appeal in relation to the costs of the Proceedings at first instance. 6. The Panel refers to its reasons below as to how it deals with the criticism of the Assessor not issuing separate certificates. 7. This Ground has no merit. 8. The Panel makes no reduction of the cost determined by the assessor or by reason of this Ground. 9. The Panel agrees with and adopt the reasoning of the Assessor.… 8. Paragraph 9. Wende v Horwath … 3. The Panel agrees with the Assessor that Wende v Horwath can be distinguished. 4. In making its Costs Orders Court of Appeal intended to articulate all of the cost incurred by the Review Responded in the Proceedings at First Instance were the subject of the Order. 5. Gzell J's Order of 13 March 2013 related to the costs of the proceedings, which were also covered by Order 14 of the Court of Appeal. 6. It is the view of the Panel that the preservation of Gzell J's Order of 13 March 2013 entitled the Review Respondent to no more cost than Order 9 (a) of the Court of Appeal. 7. Had Gzell J not made the order of 13 March 2013 then the costs of the Application of that Order of 13 March related to would be costs in the Proceedings. 8. There is no detriment to the Review Applicant in the Assessor issuing one Certificate of Determination. 9. The Panel makes no adjustment to the Determination of the Assessor by reason of this Ground. 10. This Ground has no merit. 11. The Panel makes no reduction of the cost determined by the Assessor by reason of this Ground. (bold emphasis added in body of text) THE APPEAL 1. By Summons to appeal filed 26 March 2021, Geoffrey and Mary appeal from the decision of the Review Panel of Costs Assessment dated 26 February 2021. They seek orders that the Certificates of Determination issued by the Review Panel be set aside. They seek orders that the matter be remitted to the Review Panel of Costs Assessment to re‑determine the Review Application in accordance with law. 2. The grounds of appeal state that the Review Panel erred in holding that the Costs Assessor was correct to issue only one Certificate of Determination in relation to the costs of the proceedings (and one in relation to the costs of the Cost Assessment) on the basis that there was "a single Order of the Court of Appeal in relation to the costs of the Proceedings at first instance" in circumstances where there were multiple cost orders which the Court of Appeal did not disturb, each of which should have resulted in a separate Certificate in accordance with the law. 3. It is said as a result of the error, the Review Panel has not considered what costs are fair and reasonable under each costs order and this error infects its reasoning on other grounds and leads to its determination being unsafe and unsound. 4. The parties agree that this Court is dealing with an appeal pursuant to s 384 of the Legal Profession Act 2004 (LPA). Although that legislation has since been repealed, it is common ground that by reason of the transitional provisions of the amending legislation (which need not be set out), this application falls to be determined is pursuant to that section. 5. The jurisdiction conferred on this Court is limited to a determination of a question of law and the court is not permitted to engage in a fact finding process or otherwise engage in a merits review of the decision of the Review Panel: Wende V Horwath (No 2) [2015] NSWCA 416; (2015) 91 NSWLR 588 at [58]‑[65]. 6. Both parties submit that if I formed the view that the Review Panel has made an error of law, then I should remit the matter to Review Panel for determination in accordance with law. SUBMISSIONS OF THE PARTIES 1. At the outset, I should record my gratitude for the helpful written and oral submissions of Ms Castle, Counsel for the appellants and Ms McDonald, Counsel for the respondents. The knowledge of each Counsel of the subject matter of the appeal and the manner in which they assisted the Court is greatly appreciated. The Appellants 1. The appellants submit that the Review Panel was incorrect and erred in law in reaching the conclusion it did with respect to the application of the principles in Wende v Horwath. The appellants submit that once those principles, properly understood, are applied to the costs orders made in these proceedings, the only proper outcome is that there should have been a separate Costs Determination made, and separate Certificates issued, for each of the costs orders the subject of the Costs Assessment. 2. The appellants submit that there were three costs orders which are the subject of Costs Assessment which cover the costs of the first instance proceedings. Those cost orders are: 1. Order 9(a) made by the Court of Appeal on 15 April 2015; 2. Order 10(a) made by Gzell J on 13 March 2013; and 3. Order 10 (b) made by Gzell J on 13 March 2013. 1. The appellants submit that it is clear that the costs assessment dealt with all items of the first instance proceedings, including items covered by the costs orders made by Gzell J in March 2013. They say that the Review Panel was wrong to conclude that order 9(a) of the Court of Appeal subsumed orders 10(a) and (b) of Gzell J which were left undisturbed by the Court of Appeal. 2. The appellants submit that the relevant ratio of Wende v Horwath is that although an "omnibus" application for an assessment of costs from a proceedings is permissible under the relevant legislation, even in such omnibus applications, the costs assessor is required to make a determination as to the amount that is fair and reasonable for the costs that are the subject of each costs order made: see Wende per Beazley P at [9]‑[11], Barrett JA at [197]. 3. The appellants submit that they do not need to show that there is, or would have been, a material difference in the result of the costs assessment had the Costs Assessor properly made a determination on and issued a certificate for each costs order. That is because the nature of the error made by the Review Panel (and the Costs Assessor) is a material error and it cannot be said that it is inevitable that the same result on reassessment would be reached on a proper application of the law. 4. The appellants submit that the Certificates and Determinations of the Review Panel should be set aside in the matter remitted to the panel to be determined in accordance with law. The Respondents 1. The respondents submit that, properly considered, the grounds of the appeal are flawed. That is because there was only one costs order that was in fact the subject of the costs assessment by the Cost Assessor. That was the order of the Court of Appeal made on 10 April 2015 which ordered the appellants to pay the respondents costs of the proceedings at first instance, including the cost of the proceedings before Smart AJ. They submit this must include the costs covered by orders 10(a) and (b) made by Gzell J on 13 March 2013. The respondents submit, therefore, the appeal would fail at the threshold. 2. Alternatively, the respondents submit that if that is wrong and it is necessary to construe the orders made by the Court of Appeal, the construction now proffered by the appellants had not been properly raised with the Costs Assessor or the Review Panel. They say it was never argued that the costs claimed in the costs assessment and the bill of costs the subject of that assessment were not properly within order 9(a) made by the Court of Appeal (in lieu of the order made by Gzell J). 3. They submit that a proper construction of the orders of the Court of Appeal shows that what was intended to be awarded by this order was that the appellants were responsible for all of the costs at first instance which included the costs covered by order 10(a) and (b) made by Gzell J on 13 March 2013. If that is right, there was no requirement for a separate consideration of all separate certificates as there was only one costs order. 4. Additionally, the respondents submit that the appellant is required to demonstrate that there would have been a material difference to the outcome of the costs assessment if the separate determinations had been made. They submit that no prejudice has been demonstrated by the issue of a single determination and a single certificate because there cannot be a different outcome on reassessment. That is because all of the matters the subject of Gzell J's orders were included in the costs assessment and the costs assessor dealt with the appellants objections to those items. As such, even if there was an error, the respondents deny that the appellants are entitled to the relief they seek. CONSIDERATION 1. In my opinion, for the reasons below, the appeal must succeed and the relief sought by the appellants should be granted. 2. I do not accept the respondents' submissions that as framed and properly understood, the grounds of appeal are flawed. Whilst it is true that the only costs order specifically referred to and identified in the application for costs assessment and other assessment documents that I was taken to is the order of the Court Appeal of 10 April 2015, a consideration of the whole of the material makes plain, in my opinion, that the Costs Assessment was made on the basis of the whole of the costs at first instance. This included those items which would be covered by the costs orders made by Gzell J in March 2013. So much was conceded by counsel for the respondent. 3. It is clear from the emphasised reasons of the Review Panel extracted at para [16] above that the Review Panel was aware of, and dealt with, the arguments and objections made by the appellants to the Costs Assessor about several costs orders. The Review Panel, however, agreed with the Costs Assessor that there was only one costs order. The Review Panel concluded that in making its costs orders, the Court of Appeal intended to articulate all of the costs incurred in the proceedings at first instance. The Review Panel determined that Gzell J's orders of 13 March 2013 related to the costs of the proceedings at first instance and were covered by the order of the Court of Appeal. They said that the "preservation" of Gzell J's order of 13 March 2013 entitled the appellants to "no more costs than Order 9(a)" of the Court of Appeal. 4. In my opinion, the Review Panel erred in reaching this conclusion. A proper reading of the Court of Appeal orders clearly shows that orders 10(a) and (b) made by Gzell J on 10 March 2013 were not disturbed. Order 2 of the Court of Appeal's costs orders (CB 633) makes clear that only orders 9 and 11 of the orders of Gzell J made on 13 March 2013 were altered. This is also clear from order 11 of the orders of the Court of Appeal. That order notes that: "…the costs ordered to be paid by paragraph 9(a)…and paragraph 10 of the orders made by Gzell J on 13 March pare payable now (subject to assessment)…" (emphasis added) 1. I read this order as meaning that the costs payable of the proceedings at first instance (being those covered by costs order 9(a)) and the costs covered by the costs orders 10(a) and (b) were payable immediately (subject to assessment). I do not agree with the respondent's submissions that order 9(a) as varied by the Court of Appeal is the only costs order left standing and for which costs would be assessed. 2. I accept, as was submitted by counsel for the respondents, that order 10 was not disturbed because that order was in favour of the respondents and was not the subject of any argument on appeal. I also accept that the costs of order 10 were incurred in the proceedings at first instance. However, that does not alter the fact that orders 10(a) and (b) were separate costs orders dealing with two distinct applications determined as part of the proceedings at first instance. 3. Whilst it is tolerably clear that the intent of the Court of Appeal orders as a whole was that the respondent should have all of the costs of the first instance proceedings (subject to assessment) which would include the costs of the application is the subject of order 10(a) and (b) made by Gzell J, orders 10(a) and (b) were not disturbed by the Court of Appeal and are separate costs orders. 4. There was no real dispute between the parties that the decision of the Court of Appeal in Wende means that where there are more than one costs order the subject of a costs assessment, even if assessed in an omnibus application, there must be separate determinations for each costs order and a separate certificate issued for those determinations: see at [5] per Beazley P and at [197] per Barrett JA. 5. I do not think that Wende can be distinguished from the facts of this case. Whilst there was some debate in submissions before me about Basten JA limiting the application of that principle to the facts in Wende (see for example [45]‑[48] and [91]) his Honour accepted in eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284 at [39]‑[42], that: "[39] The conclusion reached in Wende on this issue (unanimously) was that the legislation required that the cost assessor must determine, in respect of each cost order, a fair and reasonable amount for the work undertaken, which it was reasonable to carry out in respect of that matter. At least by majority, the same reasoning was applied to the determination by the review panel. Further, it was determined that, in the circumstances of the case, the issue of a global certificate which did not deal separately with the costs order was invalid. [40] In this case, the primary judge accepted "on the authority of Wende there should have been a separate costs assessment in relation to each of the two costs orders". That statement should be taken as encompassing both separate determinations and separate certificates. The critical question is whether given the conclusion, the judge was correct in refusing to allow the applicant to raise that point of appeal, it not having been raised before the cost assessor or the review panel. The answer to this question is by no means easy, although little was said in the course of argument as to how it should be approached. [41] Before addressing the question, it is necessary to enquire whether the reasoning in Wende in fact governed the facts before the primary judge. In other words, did when conclude (or require the conclusion) that the use of the singular in s 367A and s 368(1) required separate determinations and separate certificates in respect of each costs order? The possibility that it did not might flow from the fact that the difficulties identified in Wende did not arise in this case. However, that conclusion would require that the provisions be given a distributive operation, requiring individual determinations and certificates in some cases, but omitting composite determinations and certificates in others. While theoretically possible, such an approach to statutory construction is fraught with difficulties. I sought to leave the possibility open in Wende stating at [91]: "[91] The conclusion that, in relation to orders made by different courts in separate proceedings, the scheme of Pt 3.2, Div 11 of the Legal Profession Act does not permit the issue of a global certificate of determination of cost, incorporating liabilities under the several and separate orders, the certificate issued by the review panel should have been set aside by the District Court." [42] Nevertheless, no argument having been addressed to the possibility that some different result could be achieved in the circumstances of this case, the statutory construction adopted in Wende required application, as the primary judge accepted. Therefore there should have been separate determinations and certificates in respect of each or each costs order." 1. In eInduct his Honour was dealing with an appeal from a decision of Bozic DCJ refusing the appellant leave to amend its summons to include a ground of appeal dealing with the principle in Wende. Basten JA discussed the particular facts of Wende which may be said to limit its application (see, for example [29]‑[38]). However, Beazley P at [5] makes clear that her own view of the application of the principle in Wende was not limited to the circumstances that arose in that case. Nor, in my opinion, was the reasoning of Barrett JA at [197] of Wende. As such, although Basten JA may have held the view that the particular circumstances in Wende dictated the result, the majority did not so limit the principle. I am bound to apply the majority view. 2. Accordingly, in my opinion, that principle must apply to this case with the result that as there were three separate costs orders the subject of assessment, there should have been three separate determinations and three separate certificates issued. The Review Panel was in error to conclude otherwise. 3. The question then is whether the appellants are required to demonstrate that there would have been a material difference in the result on a reassessment of the Costs Orders on separate bases before they can succeed. I asked the parties to provide additional written submissions on this issue. I have received submissions from each of the appellants and the respondents and I thank them for that additional assistance. Those submissions refer to many authorities. I will not repeat reference to them unless necessary. 4. The appellants submit that they do bear a burden, but the burden is only to establish that the result of the costs assessment could have been different, not that it would have been different. They submit that it is only in cases where the outcome would inevitably be the same, despite the error, that the appellants would fail (assuming the error had been established). 5. They submit that the issue of materiality goes to whether there is a material error of law in the decision under review, rather than a material error in the outcome of the decision. Reference is made to Voicu v The Owners Strata Plan No 1624 [2020] NSWCA 52 where Basten JA (with whom McCallum JA agreed) said: "[51]…. While a discretionary refusal of relief on the merits may place a heavy burden on the respondent to establish that a different outcome was not open, an applicant cannot avoid the practical obligation to indicate some material error of law or fact in order to maintain the merits of his appeal, which would otherwise risk summary dismissal as frivolous or vexatious." 1. The appellants submit that this passage suggests that they bear the onus to establish a "material error of law" and the respondents bear the "heavy burden… to establish that a different outcome was not open". They submit that in cases such as this one, where it cannot be know whether the outcome is inevitable, the matter would be remitted to the decision maker to be dealt with according to law. 2. Reference was also made (at [9]-[11] of the appellants' supplementary submissions) to several decisions of the High Court dealing with "materiality" (albeit dealing with a different statutory context). From those authorities, the appellants submit that the materiality of the error relates to whether it can be said that the error could have made no difference to the decision, rather than whether the result would have been materially different. 3. The appellants submit that in this case the error of the Review Panel in issuing one Certificate of Determination in respect to the fair and reasonable costs of the several costs orders led, as was conceded, to the theoretical possibility that the assessment would have been different had the error not been made. Thus, they submit, the error is material and the relief sought should be granted. 4. The respondents submit that the appellants bear an onus to establish on the balance of probabilities that the error made by the Review Panel (if established) justifies disturbing the decision because the error is: (a) a "material error"; and/or (b) because it is otherwise in the interests of justice for the Court to exercise the discretion given to it under s. 384 of the LPA to grant relief. 5. The respondents refer to Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304; [2011] NSWDC 55 where Johnstone DCJ said at [16]: "Not only must a party who is appealing under s384(1) establish an error of law, that party must also demonstrate that the error justifies disturbing the assessment: Gorczybski v AWM Dickinson & Son [2005] NSWSC 277 at [22]. Thus it has been said by Master Malpass: " The onus borne by the plaintiff is not merely to demonstrate error as to a matter of law arising in the proceedings to determine the application but also to demonstrate that any such error is material to the determination": Honest Remark Pty Ltd V Allstate Explorations NL [2008] NSWSC 439 at [24]. … Whilst there has been an attack on the expression of the reasoning process, it has not been shown that the determination itself was erroneous and should be disturbed… The onus borne by [the plaintiffs] has not been discharged": Skalkos v Assaf [2002] NSWSC 1221 at [17]-[18). 1. The respondents refer to this extract as setting out the "Bellevarde requirement". They refer to a number of District Court cases which follow and apply this requirement: (see [5]-[6] of the respondents' supplementary submissions). Each of the decisions and the reference to the Civil Trials Bench Book referred to by the respondents, talk about the error being "material" to the determination. In this context the respondents refer to the decision of Voicu referred to above. They also refer to the same High Court authority (Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29]-[30]) dealing with "materiality" as the appellants. 2. The respondents refer to Basten JA's statement in Voicu that an: "error which, if corrected, would inevitably lead to the same result, is not a "material error" in the sense identified in Hossain…" 3. The respondents submit that in the present matter, the appellants cannot demonstrate a material error in the Review Panel's decision that the assessment was of one order for costs or that there was "no detriment to the Review Applicant in the Assessor issuing one Certificate of Determination" in circumstances where "the preservation of gazelles or Order of 13 March 2013 in title the Review Respondent to no more cost than Order nine (a) of the Court of Appeal." 4. The respondents submit that a review of the authorities applying the Bellevarde requirement supports their submission that the appellants in this case need to show that there would be a practical injustice arising from the asserted errors of law and that it would not be in the interests of justice for the court to intervene in circumstances where there would be no substantially different outcome. 5. I accept the submissions of the appellants. In this case, I have found that the Review Panel erred in the exercise of its review jurisdiction conferred on it by the LPA by determining that there was only one costs order requiring one determination. 6. In this case, in my opinion, the error of the Review Panel in deciding that the Costs Assessor was correct to make one determination and issue one certificate was a material error of law. I accept that as the appellants did make objections to the items covered by these orders and those objections were dealt with by the Review Panel, there may have been (and may be) no difference in the result. However, as Counsel for the appellant submitted, the statutory scheme applicable provided for the assessment of costs so that an amount that was fair and reasonable for each costs order was assessed. I cannot find on application of the "Bellevarde requirement", if it be so that the error was not material to the Review panel's determination. I cannot find that the result on reassessment according to law will be inevitably the same. 7. I find that it is possible that a different result would have been reached as to what was fair and reasonable for the respective applications the subject of the different costs orders if assessed separately. Before the outcome of a different result is finally known, it will be necessary to disaggregate the costs determinations as to the amount of costs payable under the separate costs orders. This will require some evaluative judgment by the Review Panel (see the discussion by Basten JA in Wende v Horwath (No 2) (2015) 91 NSWLR 588 at [138]). It is possible, therefore, that a different result may occur. 8. I my opinion, as the appellants have demonstrated that it is possible that a different outcome would have been achieved, they have established the relevant materiality of the error to the determination of the Review Panel: Voicu, supra: Hossain, supra and see the discussion in MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 especially at [27] – [39]; [123]. 9. I do not accept the respondents' submissions that the absence of proof by the appellant that the costs assessment would have been materially different had the error not have been made indicates that the error made was not material and/or that it is not otherwise in the interests of justice to grant the relief and disturb the determination. I have dealt with the materiality issue above. In respect to the "interest of justice" question, I cannot conclude whether the grant of relief will be ineffectual or futile. I do not know whether any difference in the outcome (if there is one) will be insignificant or substantially different. But I do not think that disentitles the appellants to the relief they seek. If the respondents wished to assert that it was inevitable that the result of any reassessment will be the same, that was be a matter for them to establish on the balance of probabilities. They have not done that. 10. I have therefore reached the conclusion that the appellants did not bear an onus to establish that a material difference would result from the proper exercise of the Review Panel's jurisdiction. The appellants have satisfied me that the Review Panel erred in the exercise of their statutory function so that the purpose of the statute to ascertain what are the fair and reasonable costs for each costs order cannot be ascertained. CONCLUSION 1. I have, in one sense, reached the conclusion I have in this case with hesitation. I appreciate that the result of this appeal may be frustrating to the respondents and appear to them to be without much merit. These proceedings have a very lengthy history. There must come a time when there is some finality to the litigation. As I have said, it appears to be common ground that all of the objections to the items claimed which would properly be the subject of the cost orders 10(a) and (b) made by Gzell J on 13 March 2013 have been dealt with by the Costs Assessor and the Review Panel. However, for the reasons I have identified, that does not alter the legal outcome of the appeal. 2. The result of this appeal may have the "inconvenient consequences" referred to by Beazley P in [13] of Wende. If so, however, that is the consequence of the structure of the legislation which governs this appeal as construed by the Court of Appeal in Wende. 3. For the above reasons, I allow the appeal. I will make orders 2-6 of the summons filed 26 March 2021. 4. Prima facie, costs should follow the event, however, I will allow the parties to make submissions as to costs. Each party should file with my Associate submissions as to costs no longer than three pages in length within seven days of the date of these orders. The question of costs will be dealt with on the papers, absent a party requiring an oral hearing. ORDERS 1. I make orders as follows: 1. Appeal allowed 2. I make orders 2, 3, 4 and 6 of the summons filed 26 March 2021. 3. Each party to file with my Associate submissions as to costs no longer than three pages in length within seven days of the date of these orders. The question of costs will be dealt with on the papers, absent a party requiring an oral hearing. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2021