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)
Solicitors:
Moray and Agnew (Appellant)
Brydens Lawyers (Respondent)

File Number(s): 2020/235078
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2020] NSWDC 399

Date of Decision:

30 July 2020

Before:

Abadee DCJ

File Number(s):

2019/366667

Judgment

WHITE JA: On 23 April 2021 this Court allowed an appeal from orders of the District Court and in lieu thereof directed entry of judgment for the respondent in the sum of $41,965.65, such judgment to take effect as and from 30 July 2020 (Dungan v Padash [2021] NSWCA 66; order 3). The parties were directed to file written submissions on the question of what costs order should be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dungan v Padash (No 2)

Details

AGLC: Dungan v Padash (No 2) [2021] NSWCA 257
Case: [2021] NSWCA 257
Decision Date: 26 October 2021

CaseChat Overview and Summary

In *Dungan v Padash (No 2)*, the appeal concerned the costs of proceedings below and on appeal, following a successful appeal by the appellant who had substantially reduced the sum awarded to the respondent. The appeal was heard by White and McCallum JJA and Emmett AJA.

The primary legal issues before the court were whether the appellant was entitled to costs of the proceedings below, given that the *Motor Accidents Compensation Regulation 2015* (NSW) ordinarily required the appellant to pay a certain amount of the respondent’s costs and disbursements. Additionally, the court considered whether the statutory restrictions on the amount solicitors could charge under the *Motor Accidents Compensation Act 1999* (NSW) should be disapplied in this instance.

The court reasoned that while the appellant had succeeded on appeal, the general rule regarding costs of the proceedings below, as stipulated by the *Motor Accidents Compensation Regulation 2015*, should apply. However, the court exercised its discretion under s 153(1) of the *Motor Accidents Compensation Act 1999* (NSW) to permit the appellant's solicitors to charge, and the appellant's insurer to pay, an amount exceeding the usual restrictions. The court then ordered a set-off of costs, with the respondent to pay the appellant's costs of the appeal and a portion of the costs of the proceedings below, resulting in a net payment by the respondent to the appellant.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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) Solicitors: Moray and Agnew (Appellant) Brydens Lawyers (Respondent)
File Number(s):	2020/235078
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWDC 399 Date of Decision: 30 July 2020 Before: Abadee DCJ File Number(s): 2019/366667