Dungan v Padash (No 2)

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.