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McKenzie v Day (No 2)

McKenzie v Day (No 2)

Case [2016] NSWDC 373 15 November 2016

Costs

Limitation Periods

Indemnity Costs

Civil Litigation & Procedure

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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)
Solicitors:
Carroll & O’Dea (1st Respondent/Plaintiff)
Moray & Agnew (Defendant)
Yeldham Price O’Brien Lusk (2nd Respondent)

File Number(s): 2015/103378
Publication restriction: No

Judgment

HIS HONOUR: The current application concerns costs. Over the last 22 years I have observed from time to time that nothing excites the zeal, the ardour and the passion of the legal profession more than an argument about costs. Amongst the costs sought today are costs against the plaintiff's solicitor personally. When such a claim is made the zeal of the members of the legal profession is greater, the ardour is more incandescent and the passion is more perfervid.
The plaintiff sustained a personal injury on 15 April 2013 when she fell at the defendant's residential premises at 289 Bent Street, South Grafton. She commenced proceedings in this Court at Lismore on 2 April 2015. Those proceedings came on for hearing before me at Lismore commencing on 15 August 2016. The hearing took the best part of that whole week. A weekend intervened. I was otherwise occupied on Monday, 22 August 2016 and I gave judgment on 23 August 2016. At the time that I gave judgment I made no order as to costs, deliberately, because I anticipated that certain applications would be made concerning costs.
Eventually, the defendant filed a Notice of Motion on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McKenzie v Day (No 2)

Details

AGLC: McKenzie v Day (No 2) [2016] NSWDC 373
Case: [2016] NSWDC 373
Decision Date: 15 November 2016

CaseChat Overview and Summary

This case involved a plaintiff who had commenced proceedings against a defendant for damages arising from personal injury. The plaintiff's case was ultimately unsuccessful, and the defendant sought costs against the plaintiff's solicitors on the basis that they had provided legal services without there being a reasonable prospect of success. The plaintiff also rejected a "walk away offer" made by the defendant, which was an offer of compromise.

The court was required to determine whether the plaintiff's solicitors had provided legal services without a reasonable prospect of success and whether the defendant's "walk away offer" constituted a true offer of compromise. The court found that the plaintiff's solicitors had acted reasonably in providing legal services and that the defendant's "walk away offer" was not a true offer of compromise. However, the court did order that the plaintiff pay the defendant's costs on an indemnity basis from the day after the offer of compromise was made.

The court refused the defendant's application for costs against the plaintiff's solicitors, finding that they had acted reasonably in providing legal services. The court also found that the defendant's "walk away offer" was not a true offer of compromise, as it was not a genuine attempt to resolve the dispute. However, the court ordered that the plaintiff pay the defendant's costs on an indemnity basis from the day after the offer of compromise was made, as the plaintiff had rejected the offer. The plaintiff was also ordered to pay the defendant's costs on the ordinary basis until a certain date.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

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

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 11 of 11 shown

McKenzie v Day (No 2)
[2016] NSWDC 236 Para 4

…My primary reasons for judgment have been uploaded onto Caselaw. They can be found at [2016] NSWDC 236. Unfortunately, it is necessary to do a little recitation of basic facts. The plaintiff was at the time that she fell aged 60 years. She was employed by the Clarence Valley Council Community Support Services as a…
Toyota Finance Australia Ltd v Gardiner (No 2)
[2016] NSWCA 181 Para 39

…Mr Curran referred me to the decision of the Court of Appeal in Toyota Finance Australia Limited v Gardiner (No 2) [2016] NSWCA 181. In that case the appellant filed a Notice of Appeal on 9 December 2015. On 11 December 2015, two days later, the respondent made an offer of compromise, namely, that the Notice of App…
Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd
[2016] NSWCA 3 Para 5

…ade by a party to an appeal, the default position provided for in the rules will not be applied': Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3 at [5]; Taheri v Vitek (No 2) [2014] NSWCA 344 at [9]-[11]. 16. In the present case, the offer of compromise was made by the respondent almost immedi…
Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2)
[2014] NSWCA 391 Para 44

…the defendant should be denied her prima facie entitlement under the rules: see Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 at [29] per McColl JA. The specific offer here made is justified under UCPR 20.26(3). No evidence has been put before me as to why the offer of compr…
Taheri v Vitek (No 2)
[2014] NSWCA 344 Para 5

…tion provided for in the rules will not be applied': Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3 at [5]; Taheri v Vitek (No 2) [2014] NSWCA 344 at [9]-[11]. 16. In the present case, the offer of compromise was made by the respondent almost immediately after the Notice of Appeal had been filed…
Jandson Pty Ltd v Welsh
[2008] NSWCA 317 Para 30

…Mr Knowles drew my attention to the decision of the Court of Appeal in Jandson Pty Ltd v Walsh [2008] NSWCA 317 where the principal judgment was delivered by Mcfarlan JA with whom Giles JA concurred. That was another misstepping case over a few steps which the plaintiff in that case had not seen. Commencing at [20]…
Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42

…relevant circumstances” (at 309). 24. I consider the situation here to be different from that in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 81 ALJR 1773 where the activity which led to the injury was the intentional, recreational one of diving from a bridge. Depending on the circumstances…
Lemoto v Able Technical Pty Ltd
[2005] NSWCA 153 Para 14

…The leading case on the meaning to be assigned to the legislation here in question is Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300. The principal judgment was given by McColl JA with whom Hodgson and Ipp JJA concurred. The judgment concerns the initial incarnation of the current legislative…
Degiorgio v Dunn (No 2)
[2005] NSWSC 3 Para 16

…Commencing at [131], her Honour referred to the decision of Barrett J in Degiorgio v Dunn (No 2) [2005] NSWSC 3; (2005) 62 NSWLR 284. Her Honour pointed out that his Honour accepted that the new legislation imposed upon legal practitioners ““a standard that is more demanding than that applicable in cases where, b…
Bankstown Foundry Pty Ltd v Braistina
[1986] HCA 20

…ances found by her Honour that there was a not insignificant risk of someone being injured. As indicated in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, “the weight that will attach to an accident-free history involves a question of fact to be determined in light of all the relevant c…
Mr Knowles also took me to the decision of Harper M in Morales v Commissioner for Social Housing
[2012] ACTSC 117 Para 33

…t different minds may approach a matter differently, Mr Knowles also took me to the decision of Harper M in Morales v Commissioner for Social Housing [2012] ACTSC 117. In that case the plaintiff was a tenant of social housing provided by the ACT Government. There was a large tree growing next to the house of which…

Legislation cited in this decision · 4

Legal Profession Act 1987 (NSW)
1 mention (from Para 14)
Legal Profession Act 2004 (Vic)
1 mention (from Para 11)
Legal Profession Uniform Law Application Act 2014 (Vic)
1 mention (from Para 11)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention

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) Solicitors: Carroll & O’Dea (1st Respondent/Plaintiff) Moray & Agnew (Defendant) Yeldham Price O’Brien Lusk (2nd Respondent)
File Number(s):	2015/103378
Publication restriction:	No