26JAuthority for deduction from damages

#### 26J Authority for deduction from damages 26J Authority for deduction from damages > > (1) A protected defendant who is liable to pay damages to an offender pursuant to an award to which this Part applies is entitled to deduct from those damages the amount of any victim support payment required to be paid by the offender. > > > (2) A victim support payment is an amount ordered to be paid by the offender by an order for restitution under Division 2 of Part 5 of the [Victims Rights and Support Act 2013](/view/html/inforce/current/act-2013-037). > > > (3) In the case of an amount ordered to be paid by the offender pursuant to a provisional order for restitution under Division 2 of Part 5 of the [Victims Rights and Support Act 2013](/view/html/inforce/current/act-2013-037), the protected defendant may (while the provisional order is pending) withhold that amount from the damages payable to the offender. > > > (3A) A protected defendant who withholds an amount under subsection (3) may require the NSW Trustee and Guardian to hold the amount on its behalf. However, the protected defendant must require the NSW Trustee and Guardian to hold the amount if the offender requests it. > > > (3B) Interest is payable on an amount that is withheld under subsection (3). The amount of interest payable on the withheld amount is— > > > > > (a) if the protected defendant has retained the withheld amount—the amount of interest determined in accordance with the provisions relating to interest payable under a judgment of the same amount of the Local Court in proceedings on a statement of claim under the [Civil Procedure Act 2005](/view/html/inforce/current/act-2005-028), or > > > > > (b) if the NSW Trustee and Guardian holds the withheld amount for the protected defendant—the amount of interest received by the NSW Trustee and Guardian in respect of the investment of the amount as provided by the [NSW Trustee and Guardian Act 2009](/view/html/inforce/current/act-2009-049). > > > (3C) If the provisional order for restitution on the basis of which an amount was withheld under subsection (3) is confirmed under the [Victims Rights and Support Act 2013](/view/html/inforce/current/act-2013-037), any interest payable on the withheld amount under this section must be paid as follows— > > > > > (a) if the NSW Trustee and Guardian holds the withheld amount for the protected defendant—the reasonable costs of the NSW Trustee and Guardian in connection with that holding are to be paid out of the interest, > > > > > (b) if the amount ordered for restitution is not reduced on the confirmation—all of the interest (or remaining interest after payment of the NSW Trustee and Guardian’s costs) must be paid to the person (payee) to whom the order for restitution requires payment to be made or, if there is more than one payee, to each payee in the same proportion as corresponds to the payee’s proportion of the total amount of restitution, > > > > > (c) if the amount ordered for restitution is reduced on the confirmation— > > > > > > > (i) the offender must be paid the proportion of the interest (or remaining interest after payment of the NSW Trustee and Guardian’s costs) that corresponds to the proportion by which the withheld amount was reduced, and > > > > > > > (ii) the rest of the interest must be paid to the payee or, if there is more than one payee, to each payee in the same proportion as corresponds to the payee’s proportion of the reduced amount. > > > (4) The protected defendant or the NSW Trustee and Guardian (as the case may be) is to pay an amount deducted under this section to the person to whom the order for restitution requires payment be made. > > > (5) Payment made by a protected defendant or the NSW Trustee and Guardian (as the case may be) pursuant to this section is, to the extent of the amount paid, taken to be a payment to the offender in satisfaction of the obligation to pay the damages concerned. > > **s 26J:** Ins 2004 No 29, Sch 1 \[3\]. Am 2005 No 9, Sch 1 \[6\] \[7\]; 2006 No 120, Sch 2.12; 2007 No 94, Sch 2; 2009 No 49, Sch 2.8 \[3\]–\[5\]; 2013 No 37, Sch 3.3 \[3\] \[4\].