Notice of objection to estimate of costs (Rule 40.21(1)) (Form 128)

When a long form bill of costs is filed in the Federal Court, a taxing officer (a Registrar) first makes an estimate, without the parties, of the amount for which a certificate of taxation would be likely to issue if the bill were taxed (r 40.20). Unless someone objects, that estimate becomes the amount of the certificate (r 40.20(4)). Under rule 40.21(1) of the Federal Court Rules 2011, a party interested in the bill who wants to object must, within 21 days after the notice of estimate issues, file a notice of objection in accordance with Form 128 and pay $2,000 into the Litigants' Fund as security for the costs of any taxation. A Registrar may then direct a confidential conference, a provisional taxation or that taxation proceed (r 40.21(2)).

When you need it

• You have received a notice of estimate on a long form bill of costs and think the estimate is too high (if you are paying) or too low (if you filed the bill).
• You are a "party interested in the bill", meaning a party or person in whose favour or against whom the costs order was made (Dictionary).
• You are within 21 days after the notice of estimate was issued.

1. 1

   Copy the heading of the proceeding

   Use the file number, District Registry, Division and party names from the proceeding in which the costs order was made (rr 2.13, 2.14).

2. 2

   Identify the estimate

   Insert your name and role, the name or description of the taxing officer who made the estimate, and the date of the notice of estimate.

3. 3

   Security for costs

   The form states that it must be accompanied by payment of $2,000 to the Litigants' Fund as security for the costs of any taxation (r 40.21(1)(b)). The printed form refers to a cheque; check with the Registry how payment is to be made.

4. 4

   Date and sign

   The signature block is for the party's lawyer ("Lawyer for the" party).

• File within 21 days after the issue of the notice of estimate (r 40.21(1)). Otherwise the estimate becomes the amount for which the certificate of taxation issues (r 40.20(4)).
• File it in the existing proceeding, usually through eLodgment using the file number. Rule 2.21 also allows lodging at a Registry, by post or by fax.
• The objection cannot proceed unless Form 128 is filed and the security is paid within the 21 days (Costs Practice Note GPN-COSTS para 5.19).

• Weigh the "15% rule" before objecting. A party who objects pays the costs of taxation for all parties from the date of the estimate unless the bill is taxed at more than 115% of the estimate (if the objector filed the bill) or at less than 85% (in any other case) (r 40.33).
• Expect a confidential conference. The Court's Costs Practice Note says objections focus on resolving the dispute at a conference run like a mediation.
• If the parties settle at the conference, a Registrar issues a certificate for the agreed amount and pays out the security as agreed or, failing agreement, to the objector (r 40.22).