New South Wales Consolidated Acts

LEGAL PROFESSION ACT 2004 - SECT 338

338 Maximum costs fixed for claims up to $100,000

(1) If the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs for legal services provided to a party in connection with the claim are fixed as follows:

(a) in the case of legal services provided to a plaintiff-maximum costs are fixed at 20% of the amount recovered or $10,000, whichever is greater,

(b) in the case of legal services provided to a defendant-maximum costs are fixed at 20% of the amount sought to be recovered by the plaintiff or $10,000, whichever is greater.

(2) The regulations may prescribe an amount to replace the amount of $100,000 or $10,000 in subsection (1) and may prescribe a percentage to replace the percentage of 20% in subsection (1). When such a replacement amount or percentage is prescribed, it applies for the purposes of subsection (1) in place of the amount or percentage that it replaces.

(3) The regulations may contain provisions of a savings or transitional nature consequent on the making of regulations under this section.

(4) When the maximum costs for legal services provided to a party are fixed by this Division the following provisions apply (subject to sections 339-341):

(a) a law practice is not entitled to be paid or recover for those legal services an amount that exceeds those maximum costs,

(b) a court or tribunal cannot order the payment by another party to the claim of costs in respect of those legal services in an amount that exceeds that maximum,

(c) in assessing the amount of those costs that is a fair and reasonable amount, a costs assessor cannot determine an amount that exceeds the maximum set by this section.

(5) In this Division:

(a) a reference to legal services provided to a party is a reference to legal services provided to the party by a law practice (including by an associate of the law practice), and

(b) a reference to costs for legal services does not include costs charged as disbursements for services provided by any other person or other disbursements.

(6) If proceedings are commenced on a claim, the amount sought to be recovered by the plaintiff is taken to be the amount sought to be proved by the plaintiff at the hearing of the claim.

(7) Maximum costs fixed by this Division apply despite regulations under section 329 (1) (b) (Regulations to provide for fixed costs) fixing those costs.