Dungan v Padash (No 2) [2021] NSWCA 257

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dungan v Padash (No 2) [2021] NSWCA 257 Hearing dates: 12 February 2021, written submissions 7 May 2021 Date of orders: 26 October 2021 Decision date: 26 October 2021 Before: White JA at [1]; McCallum JA at [26]; Emmett AJA at [27] Decision: (1) Order pursuant to s 153(1) of the Motor Accidents Compensation Act 1999 (NSW) that the costs which the appellant's solicitor is entitled to charge, and which the appellant's insurer is permitted to pay, not be restricted by cl 8 and Sch 1 of the Motor Accidents Compensation Regulation 2015; (2) Subject to orders (3) and (4) below, order that the appellant pay the respondent's costs of the proceedings below, in accordance with Sch 1 to the Motor Accidents Compensation Regulation 2015; (3) Subject to order (4) below order that the respondent pay the appellant's costs of the appeal and of the proceedings below in the sum of $25,000 in accordance with s 151(2)(b) of the Motor Accidents Compensation Act 1999 (NSW); (4) Order that the costs payable by the appellant pursuant to order (2) and by the respondent pursuant to order (3) be set off against each other and that the respondent pay the appellant's costs (after set-off) in the amount of $8,414.48. Catchwords: COSTS — Where appellant succeeded in substantially reducing sum awarded to respondent — Where order that respondent pay appellant's costs of the appeal — Whether appellant entitled to costs of the proceedings below — Where Motor Accidents Compensation Regulation 2015 requires the appellant to pay a certain amount of the respondent's costs and disbursements in the court below — Where Motor Accidents Compensation Act 1999 (NSW) fixes amount which appellant's solicitors were permitted to charge, subject to an order otherwise — Whether such order to be made Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 83, 84A, 94, 149, 151, 153 Motor Accidents Compensation Regulation 2015 Motor Accidents Compensation Amendment (Claims) Regulation 2016 Cases Cited: Dungan v Padash [2021] NSWCA 66 San v Rumble (No 2) [2007] NSWCA 259 Texts Cited: Motor Accidents Authority 2014/15 Annual Report Ritchie's Uniform Civil Procedure, LexisNexis Butterworths Category: Costs Parties: Rebecca Dungan (Appellant) Hassan Padash (Respondent) Representation: Counsel: K Rewell SC (Appellant) R S Sheldon SC with E Welsh (Respondent)