A Costs Order May Not Give You Back What Litigation Cost You
Published: 8 October 2026 | Reviewed: 8 October 2026
(3-minute read)
Home > Resources > Why Legal Costs Matter > A Costs Order May Not Give You Back What Litigation Cost YouA costs order can help at the end of a case.
It does not control what you spend along the way.
That difference matters.
Many people enter litigation assuming that, if they win, the other side may have to pay their legal costs. Sometimes that is partly true. A court may make a costs order. A successful party may recover some costs from the other side.
But recoverable costs are not always the same as the amount actually spent.
In the Federal Court, allowable costs are assessed by reference to court rules and costs scales. The current scale applies to work done on or after 11 June 2026 and sets amounts for categories including lawyer attendances, document preparation, correspondence, reading and electronic document management. For example, lawyer attendances may be allowed at up to $80 per 6-minute unit, while document preparation is allowed at $73 per 100 words. Federal Court of Australia
Those figures do not necessarily match what a client has agreed to pay their own lawyer.
The Law Council of Australia made the same broader point in its 2026 submission to the Joint Costs Advisory Committee. It said federal court costs scales have failed to keep pace with actual costs incurred by parties, current charging practices, market conditions and changes in technology. It also warned that successful parties may recover only a fraction of the costs they incurred. Law Council of Australia
For clients, the practical point is simple:
A costs order deals with recovery later. Cost control deals with spending before it happens.
Those are different problems.
A costs order may reduce the final burden of litigation. It may affect settlement pressure. It may matter greatly.
But it usually comes late.
(see: Knowing what may happen does not always give you control)
By then, the legal work has already been done. The money may already have been paid. The expert may already have been briefed. The mediation may already have been prepared. The hearing path may already have shaped the file.
(see: The first legal choice may shape the whole bill)
So the safer question is not only:
What might I recover if I win?
It is also:
What controls the next legal spend before I commit to it?
(see: Why better litigation cost control needs structure, not just warnings)
Illustration of a navigation system showing alternative litigation paths and how a structured decision point helps a client review the options before funding the next stage.
Litigation cost rarely arrives in one dramatic moment.
A letter is answered.
A document is reviewed.
An expert is briefed.
A timetable is met.
A mediation is prepared for.
A hearing remains in view.
Each step may be reasonable. Each step may be properly explained. Each step may feel necessary at the time.
But together, the cost can become much larger than expected.
If the client only learns the full cost picture at the end, the legal position may still be alive, but the financial position may already have changed.
The client may still have choices. But they may no longer be clean choices.
Stop now, and the money already spent feels wasted.
Settle now, and the other side may sense pressure.
Keep going, and the bill keeps growing.
Try to recover costs later, and the recovery may not match the spend.
That is not practical control.
Practical control requires earlier questions.
What work is being funded next?
Who approves it?
What is the cost of preparing for settlement?
What is the cost of preparing for court?
Are those paths being kept separate, or funded together?
What happens before the next stage begins?
These questions do not replace legal advice. They do not remove litigation risk. They do not guarantee that a dispute will be cheap.
But they help identify whether the client has a structure for deciding before the money is spent.
That is the point many clients miss.
Winning may matter. A costs order may matter. Recovery may matter.
But the client’s financial position is shaped much earlier.
Before the bill is assessed.
Before the costs order is made.
Before the final result is known.
The real control question is:
Can you decide what is funded next before the cost is already incurred?
By Nicky Wang
Principal Solicitor