Flecknoe v Pared Ltd (No 2)

Catchwords: COSTS – r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) – where each party had a measure of success – where it is appropriate to depart from the general rule on defendant’s application for costs

Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Bird v DP (a pseudonym) (2024) 419 ALR 552; [2024] HCA 41
Bruce v Odhams Press Ltd [1936] 1 KB 697
Flecknoe v Pared Ltd [2025] NSWSC 775
Goldsmith v Sandilands and Others (2002) 190 ALR 370; [2002] HCA 31
Hogan v Trustee of the Roman Catholic Church (No. 2) [2006] NSWSC 74
Sze Tu v Lowe (No 2) [2015] NSWCA 91

Texts Cited: Nil

Category: Costs

Parties: Sam Flecknoe (Plaintiff / Respondent)
Pared Ltd (Defendant / Applicant on Motion)

Representation: Counsel:
J Masur (Plaintiff / Respondent)
J Sleight (Defendant / Applicant on Motion)
Solicitors:
Fern Lawyers (Plaintiff / Respondent)
Thompson Cooper Lawyers (Defendant / Applicant on Motion)

File Number(s): 2024/339635

Publication restriction: Nil

JUDGMENT

1. On 20 April 2025, Pared Ltd (“the defendant”) filed a Notice of Motion (“the motion”) seeking that the Statement of Claim filed on 12 November 2024 (“SOC”) by Mr Sam Flecknoe (“the plaintiff”) be struck out pursuant to r 14.28(1)(a) and/or (b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), or alternatively, that the plaintiff be ordered under r 15.1(1) of the UCPR to set out further particulars of the claim. The defendant also sought that the plaintiff would pay the defendant’s costs of, and incidental to, the motion.

2. The Court delivered judgment in respect of the motion on 22 July 2024: Flecknoe v Pared Ltd [2025] NSWSC 775 (“the primary judgment”).

3. The primary judgment concluded that the motion to strike out must fail, but that the alternative order sought, that the plaintiff file further particulars pursuant to r 15.10 of the UCPR, would be granted. The Court made orders reflecting the primary judgment on 28 July 2025.

4. The primary judgment noted that the outcome of the motion gave rise to a consideration as to whether each party should pay its own costs and expressed a preliminary view that a costs order should be made in those terms. In the event the parties did not agree with that preliminary view, the primary judgment made provision for the receipt of further submissions as to costs.

5. The parties took this opportunity, and the defendant sought orders that the plaintiff pay the defendant’s costs of, and incidental to, the motion as well as costs thrown away by reason of the amendment to the pleadings, while the plaintiff sought an order for costs in the cause.

6. This judgment concerns the determination of costs on the motion.

SUBMISSIONS OF THE PARTIES

The defendant

7. The defendant submitted that it succeeded in respect of its alternative relief sought for further particulars and therefore “succeeded the event”.

8. Further, the defendant submitted that on 17 January 2025, prior to the motion, it “sought substantially” the particulars that the plaintiff was ordered to provide and, had the plaintiff provided an adequate response, the need for the motion would have been obviated.

9. Lastly, the defendant also submitted that it provided the plaintiff with written submissions prior to the hearing of the motion, to which the plaintiff responded late without any concessions. The day before the hearing of the motion, the plaintiff provided an unsatisfactory proposed third amended statement of claim (“3ASOC”), and during the hearing of the motion, when pressed by the court, the plaintiff conceded that the 3ASOC still contained defects.

The plaintiff

10. The plaintiff submitted that the motion was not necessary, and that the defendant failed in obtaining the primary relief which it sought.

11. The plaintiff also submitted that the orders to provide particulars primarily arose as a result of the change in the legal landscape following the decision of Bird v DP (a pseudonym) (2024) 419 ALR 552; [2024] HCA 41 (“Bird”), which was delivered on 13 November 2024. The plaintiff’s submission, in this respect, was that the amendments and provision of particulars are part of the usual litigation process and, as such, the appropriate costs order is costs in the cause.

RELEVANT PRINCIPLES

12. The general rule is that ‘costs follow the event’, meaning that an unsuccessful party will normally be required to pay a successful party’s costs, unless it appears that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR.

13. The principles applicable to orders for costs were recently set out by the Court of Appeal in Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [37] – [40] (per Gleeson JA, with whom Meagher and Baratt JJA agreed):

“[37] Costs are not awarded by way of punishment of the unsuccessful party but, rather, “are compensatory in the sense that they are awarded to indemnify to successful party against the expense to which he or she has been put by reason of the legal proceedings”: Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 543 (Mason CJ); Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [67]; Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201; 72 NSWLR 273 (Mahenthirarasa (No 2)) at [8] (Basten JA; Giles and Bell JJA agreeing). It follows that the inquiry as to what costs order should be made is primarily directed to the position of the successful party: Latoudis v Casey at 542; Mahenthirarasa (No 2) at [9].

[38] The starting position is s 98 of the Civil Procedure Act 2005 (NSW) which provides that, subject to the rules of court, costs are in the discretion of the Court including by whom, to whom and to what extent costs are to be paid. Reference should also be made to r 42.1, Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provides that if the Court makes any order as to costs, it should be in terms that costs follow the event unless it appears to the Court that some other order should be made as to the whole or part of the costs.

[39] How “the event” should be defined will depend upon the nature of the litigation. Generally the “event” refers to the event of the claim and may be understood as referring to the practical result of a particular claim: Windsurfing International Inc v Petit [1987] AIPC 90-441 at 37,861 – 37,862 (Waddell J).

[40] In a proper case, the party that is successful overall may be deprived of part of its costs, or ordered to pay the costs of a discrete issue. The circumstances in which this may occur are not limited to cases where it was unreasonable for the successful party to raise the issue on which it failed: Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 615D. The relevant principles were reviewed by this Court in Elite Protective Service Pty Ltd v Salmon (No 2) [2007] NSWCA 373, and summarised in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] (Beazley, Ipp and Basten JJA), as follows:

• Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1996, unreported).

• In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

• If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].

• Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

• A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

• Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261 at 272.”

14. Hence, while the starting point when examining costs is the general rule that costs follow the event, this rule may be departed from where the court considers it is appropriate to do so. The court has a wide discretion in this regard. For example, it may be appropriate to depart from the general rule where each party has had a measure of success, in which case, the court may make no order as to costs: Hogan v Trustee of the Roman Catholic Church (No*.* 2) [2006] NSWSC 74 at [40].

CONSIDERATION

15. In my view, if the ‘event’ is, as the defendant submitted, its success on the alternative motion, then this matter is one where it is appropriate to depart from the general rule that costs follow the event for the following reasons.

16. First, the defendant was not successful in obtaining the primary relief sought, that the SOC be struck out. Rather, the Court found that the defendant’s criticisms (as they were advanced in its case for a strike out) were either found wanting or could readily be remedied by the alternative order sought for further particulars.

17. Secondly, while the Court was minded to grant the alternative relief sought for further particulars, the particulars ordered by the Court were limited in nature when compared to the list sought by the defendant in the motion (or, for that matter, as discussed below, as sought by the defendant in correspondence with the plaintiff). The further particulars which the plaintiff was ordered to provide were limited to three specific matters: constructive knowledge, precautions and vicarious liability. As such, the defendant was not wholly successful on its alternative motion.

18. The defendant’s submission that it “succeeded the event”, by virtue of succeeding in respect of its alternative relief sought, ignores the fact that the defendant was entirely unsuccessful in respect of its primary case, and partly unsuccessful in respect of the alternative relief sought.

19. Thirdly, while the defendant did submit a request for further and better particulars on 17 January 2025, this request contained 3 pages of very specific and detailed questions which, in my view, exceeded what was necessary for the defendant to “fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial”: Goldsmith v Sandilands and Others (2002) 190 ALR 370; [2002] HCA 31 at 371 (per Gleeson CJ), citing Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712–13 (per Scott LJ).

20. I do not accept the defendant’s submission that had the plaintiff provided an adequate response to its letter of 17 January 2025, this would have obviated the need for the motion. The primary relief sought by the defendant was not the provision of further particulars and, as I have mentioned, the request of 17 January 2025 was entirely unreasonable, having regard to the purpose of particulars and the limited nature of the particulars that the plaintiff was eventually ordered to provide.

21. To conclude, I note that in circumstances where the defendant is yet to file a defence in response to the SOC, it is unclear on what basis the defendant seeks an order for “costs thrown away by reason of the amendment to the pleadings”. I do not accept the assertion that the defendant has incurred costs in connection with the taking of steps that have been rendered worthless by reason of the amendment.

22. Nor do I consider the plaintiff’s application for costs in the cause should be accepted. While I accept, in part, the plaintiff’s submission that the order for particulars arose as a result of a change in the legal landscape following the decision of Bird, this submission can only be accepted in so far as the further particulars ordered relate to vicarious liability. As I have already noted, the further particulars which the plaintiff was ordered to provide, and which the plaintiff eventually conceded were found wanting, extended to matters beyond vicarious liability.

23. Hence, in my view, each party was partially successful on the motion and, as such, there should be no order as to costs. My view has not changed. There is nothing in the resolution of the costs argument itself which would warrant a different conclusion.

ORDERS

24. The orders of the court are (partly by confirmation of orders already made):

25. Plaintiff is granted leave to file and serve a Further Amended Statement of Claim in the form annexed to the affidavit of Samantha Adele McRae dated 7 July 2025, but with further particulars to be provided at:

(a) Paragraph 8, as to constructive knowledge and the particulars said to be established at this stage by reference to (i) common knowledge and experience of other institutions in a similar position of the defendant; (ii) an accumulation of complaints being made; (iii) public notoriety of a particular risk of harm; (iv) publications and academic knowledge which might be expected to be read by people in the defendant’s position; and (v) the obviousness or the likelihood of the event happening in the application of common sense. (b) Paragraph 12(a) and (j), as to the specific precautions which the defendant ought to have taken to prevent the risk of harm. (c) Paragraph 22, as to any particular authority, trust, power or control exerted by the priest by virtue of his role.

2. Such Further Amended Statement of Claim is to be filed and served by 13 August 2025.
3. No order as to costs.

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