San v Rumble (No 2)

In *San v Rumble (No 2)*, the Court of Appeal of New South Wales considered an application for indemnity costs made by the Opponent following the dismissal of an application for leave to appeal in a motor vehicle accident matter. The Opponent had made an offer of compromise prior to the hearing of the application for leave to appeal.

The central legal issues before the Court were whether Rule 42.15 of the *Civil Procedure Rules 2005* was applicable to proceedings for costs under Chapter 6 of the *Motor Accidents Compensation Act 1999* (NSW), and whether indemnity costs were recoverable under section 151(2) of that Act. The Court also considered whether "exceptional circumstances" existed to justify an award of indemnity costs.

The Court reasoned that the *Motor Accidents Compensation Act 1999* (NSW) provided a comprehensive code for the recovery of costs in claims made under its provisions. It held that the specific provisions of Chapter 6 of the Act, particularly section 151(2), governed the recovery of costs in such matters, and that Rule 42.15 of the *Civil Procedure Rules 2005* did not apply. The Court further determined that the threshold for awarding indemnity costs under section 151(2) required proof of "exceptional circumstances" and that the Opponent had not demonstrated such circumstances in this instance.

The Court made no alteration to the costs order previously pronounced on 20 July 2007.