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

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

The plaintiff’s solicitors had a reasonable basis in provable facts and a reasonably arguable view of the law sufficient to believe the case had reasonable prospects of success; therefore, a personal costs order against them was not justified. However, because the plaintiff rejected a genuine offer of compromise and did not succeed, the plaintiff must pay the defendant’s costs on the ordinary basis until the offer and on an indemnity basis thereafter.

Parties
Plaintiff: Lesley McKenzie; Defendant: Lucy Day
Jurisdiction
Australia
Judgment Date
15 November 2016
Procedural Posture
Application for Costs Following Unsuccessful Personal Injury Action / Post Trial; Costs Determination
Outcome
Application for costs against plaintiff’s solicitors refused; application for indemnity costs against plaintiff granted from rejection of offer of compromise.
Legal Topics
Application for Costs Against Solicitor, Indemnity Costs, Reasonable Prospects of Success, Offer of Compromise, Personal Injury Litigation
Costs Civil Procedure Personal Injury Application for Costs Against Solicitor Indemnity Costs Reasonable Prospects of Success Offer of Compromise Personal Injury Litigation

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Parties

Lesley McKenzie

Plaintiff

Lucy Day

Defendant

Procedural Posture

Application for Costs Following Unsuccessful Personal Injury Action / Post Trial; Costs Determination

Legal Issues

  1. 1 Whether plaintiff's solicitors acted without reasonable prospects of success for purposes of costs order against them
  2. 2 Whether indemnity costs should be awarded against the plaintiff for rejecting an offer of compromise

Ratio Decidendi

The plaintiff’s solicitors had a reasonable basis in provable facts and a reasonably arguable view of the law sufficient to believe the case had reasonable prospects of success; therefore, a personal costs order against them was not justified. However, because the plaintiff rejected a genuine offer of compromise and did not succeed, the plaintiff must pay the defendant’s costs on the ordinary basis until the offer and on an indemnity basis thereafter.

Court Disposition

Application for costs against plaintiff’s solicitors refused; application for indemnity costs against plaintiff granted from rejection of offer of compromise.

Orders

  • Plaintiff to pay defendant's costs on an ordinary basis until 3 February 2016 and on an indemnity basis from 4 February 2016.
  • Application for costs against plaintiff's solicitors refused.