Port Stephens Council v Theodorakakis (No 2)

The dispute in *Port Stephens Council v Theodorakakis (No 2)* concerned the application of a statutory cap on costs recoverable in personal injury damages claims. The unsuccessful defendant sought leave to appeal a decision, and the Court of Appeal was required to determine whether the costs cap applied to the appeal proceedings.

The primary legal issue before the Court of Appeal was whether the costs cap, which generally applies to personal injury damages claims unless an excluding order is made, extended to the proceedings for leave to appeal. The court also considered whether the application for leave to appeal was reasonably necessary for the advancement of the claimant's case, a condition that could potentially allow for an exclusion from the cap.

By majority, the Court of Appeal held that the costs cap had not been shown to have been exceeded by the costs incurred in the District Court hearing, and therefore, the cap would likely apply to the appeal. However, the majority found that it had not been demonstrated that the application for leave to appeal was not reasonably necessary for the advancement of the claimant's case. Consequently, the claimant was ordered to pay the opponent's costs of the claimant's summons for leave to appeal, while each party was to bear their own costs for the opponent's summons for leave to appeal.