McKenzie v Day (No 2) [2016] NSWDC 373

District Court New South Wales

Medium Neutral Citation: McKenzie v Day (No 2) [2016] NSWDC 373 Hearing dates: 15 November 2016 Date of orders: 15 November 2016 Decision date: 15 November 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: Application by defendant for costs against plaintiff's solicitors on basis that plaintiff's solicitors provided legal services without reasonable prospect of success refused

Plaintiff to pay Defendant's costs on ordinary basis until 3 February 2016 and on an indemnity basis from 4 February 2016 Catchwords: COSTS – Plaintiff unsuccessful in her action for damages for personal for personal injury – Defendant seeks costs against plaintiff's solicitors – Whether plaintiff's solicitors provided legal services to the plaintiff without there being a reasonable prospect of success – Application refused – Defendant in alternative seeks indemnity costs against plaintiff who rejected an offer of compromise – "Walk away offer" – Whether true offer of compromise – indemnity costs ordered from day after offer of compromise made Legislation Cited: Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Degiorgio v Dunn (No 2) [2005] NSWSC 3; (2005) 62 NSWLR 284 Jandson Pty Ltd v Walsh [2008] NSWCA 317 Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 Morales v Commissioner for Social Housing [2012] ACTSC 117 Toyota Finance Australia Limited v Gardiner (No 2) [2016] NSWCA 181 Category: Costs Parties: Lesley McKenzie (Plaintiff) Lucy Day (Defendant) Representation: Counsel: Mr F Curran (1st Respondent/Plaintiff) Mr J Guihot (Appellant/Defendant) Mr P Knowles (2nd Respondent)