If you are involved in a Court or Tribunal case, it is very important to understand and be prepared for the costs and fees you may incur. Court or Tribunal proceedings are becoming more commonplace these days and everyone wants to know how much it will cost them.

Our Litigation team answers commonly asked questions by our customers.

What types of Court or Tribunal costs are there?

Court & Tribunal Fees

For certain documents to be filed during Court or Tribunal proceedings, one or both parties may need to pay a filing or administrative fee to the Court or Tribunal. Common examples are an initial filing fee to commence legal proceedings or a fee for the final hearing.

These fees are often borne by the party who commenced the proceedings. In limited circumstances, such as financial hardship, these fees can be waived on application to the Court or Tribunal.

Legal Costs

If you retain the services of a Lawyer, you will need to pay costs to your Lawyer. The amount of these costs are a private arrangement between you and your Lawyer and will depend on what happens during the course of proceedings.

If the matter settles in the early stages, obviously your overall costs will be much less than if the proceeding goes all the way to a final trial.

As to how much your Lawyer would charge for legal costs for fully contested proceedings through to a final hearing, such costs vary widely, depending on the amount of legal work, which in turn depends on the level of complexity of the issue, and in which Court or Tribunal the matter will be heard.

Naturally, any reputable Lawyer will work had to resolve the dispute, for example through mediation, thereby reducing the likelihood that the matter will proceed to a court or tribunal hearing.

Disbursements and Expenses

During the course of your matter, there will be other expenses such as expert fees, barrister's fees, company or title search fees, photocopying, travel expenses etc.

Fines

While not a 'court cost' as such, at the conclusion of proceedings, you may be ordered by a Court or Tribunal to pay a fine to the Court and/or to various government agencies. Such fines include fines for non-payment of speeding infringements or breach of some statute and the like.

The Court or Tribunal will include in its Order the time within which you need to pay the fine. This timeframe will depend on the amount and type of fine, but generally you will be looking at payment within 30 90 days.

Can you Recover Court or Tribunal costs?

You will need to pay the above mentioned Court or Tribunal fees and legal costs to your Lawyer out of your own pocket, in the first instance.

A Court or Tribunal can order that one party 'reimburse' the other party's legal costs, fees and disbursements for the entire proceeding, or just from a certain date or just relating to a certain application. Such an order for costs will usually only cover a portion of the total costs.

You will not be able to recover Court or Tribunal fines from any other party, as a fine is a penalty for some wrongdoing by you.

Ultimately, the recovery of Court or Tribunal fees and legal costs will depend on a combination of a number of circumstances. The three main factors are:

1. The jurisdiction (Court or Tribunal) of the proceedings

2. Whether you "win" or "lose"

3. Any settlement offers made during the course of proceedings.

For example, the Fair Work Commission and VCAT are usually 'no-costs' jurisdictions, meaning that even if you were successful in full or in part, you would generally have to bear your own costs in full. However, if you are fully successful in a Court, you will often obtain an order that the other party pay your costs pursuant to a 'Court Scale'. The Court Scale sets out a certain amount of money that can be recovered from the other party for each particular action taken or document prepared, for example we often find that Scale Costs cover approximately 60% of the total costs that you actually incur to your lawyer.

On the other hand, if you are unsuccessful, you may be ordered to pay your opponent's legal costs on Scale, in addition to your own legal costs.

Exceptions

There are exceptions to the above. For example, only a limited amount of costs will be recoverable for 'small claims' in the Magistrates' Court, which is where the claim amount is under $10,000.00.

Settlement offers made and rejected during the proceedings can change the usual position concerning costs if the matter proceeds to a trial. Such offers can result in an order for costs being made when otherwise an order would not necessarily be awarded. Settlement offers can also result in an order that the other party pay every single dollar of costs that you have incurred, instead of just scale legal costs.

Notwithstanding the above, an order for costs is never a guarantee, as Courts and Tribunals have wide powers to order (or not to order as the case may be) legal costs if they think it is in the interests of justice.

The Victorian Family Law Courts are more likely to order that each party bears their own costs, unless there are very special circumstances.

How to avoid Court or Tribunal costs?

There is no way to avoid Court or Tribunal fees or legal costs totally. Even if you represent yourself, there may be filing fees and expenses that you need to pay.

However, the making of reasonable and timely settlement offers (of which there are different types) throughout the course of proceedings will often place you in a good position with respect to costs, as well as increasing the chances of resolving the matter without needing a final trial.

How can Sharrock Pitman Legal help you?

Our team of Lawyers can provide you with advice on your legal position and costs for a wide range of legal disputes. Our litigation Lawyers can provide you with their advocacy skills to keep a dispute out of a Court or a Tribunal, if at all possible. If Court or Tribunal proceedings are commenced, our Lawyers will help you navigate through the litigation process with expert advice and cost effective representation.

Call Sharrock Pitman Legal today on 1300 205 506.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Caroline Callegari

Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324.

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I owe someone money - how can I negotiate a settlement for a debt recovery matter?

If you are involved in a Court or Tribunal case, it is very important to understand and be prepared for the costs and fees you may incur. Court or Tribunal proceedings are becoming more commonplace these days and everyone wants to know how much it will cost them.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Court or Tribunal cost: Will your opponent foot the bill?

If you are involved in a Court or Tribunal case, it is very important to understand and be prepared for the costs and fees you may incur. Court or Tribunal proceedings are becoming more commonplace these days and everyone wants to know how much it will cost them.

What types of Court or Tribunal costs are there?

Court & Tribunal Fees

Legal Costs

Disbursements and Expenses

Fines

Can you Recover Court or Tribunal costs?

Exceptions

How to avoid Court or Tribunal costs?