Kaddour v Al-Faisal College Ltd

Parties: Ahmad Kaddour (Plaintiff)
Al-Faisal College Ltd (Defendant)

Representation: Counsel:
J B Masur (Plaintiff)
J Sleight (Defendant)
Solicitors:
Fern Lawyers (Plaintiff)
Thompson Cooper Lawyers (Defendant)

File Number(s): 2024/00349509

Publication restriction: Nil

JUDGMENT

1. In April 2025, the Al-Faisal College filed a motion seeking orders striking out Mr Kaddour’s statement of claim under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). On 28 August, at the hearing of the motion, the parties agreed that Mr Kaddour should have an opportunity to replead. I made consent orders that:

“1. Leave for the defendant to rely on the Amended Notice of Motion served on 14 August 2025.

2. The Plaintiff to circulate a proposed Amended Statement of Claim by 5 September 2025.

3. The Defendant to request further and better particulars of the Plaintiff’s proposed Amended Statement of Claim by 19 September 2025.

4. The Plaintiff to respond to the Defendant’s request for further and better particulars by 26 September 2025.

5. The Defendant to confirm whether it consents to the filing of the Plaintiff’s proposed Amended Statement of Claim by 3 October 2025.

6. Defendant’s Notice of Motion is adjourned to 9.30am 14 October 2025, at which time the Court will also hear any application for:

a. leave to file the Amended Statement of Claim (whether by consent or otherwise); and

b. costs.

7. Costs reserved.

8. Liberty to apply on 3 days’ notice.”

2. The parties later filed written submissions as to costs, which were disputed.

3. There is no issue about the Court’s discretion in relation to costs: s 98 of the Civil Procedure Act 2005 (NSW) and Pt 42 of the Uniform Civil Procedure Rules 2005. Its powers must be exercised judicially having regard to the relevant facts connected with or leading to the litigation and the purpose of a costs order being compensatory: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [24]. Costs ordinarily being awarded in favour of the successful party.

4. A departure from the usual costs order under the Rules can be ordered where there is relevant misconduct in the proceedings: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [69]. An indemnity costs order compensating the successful party may be made where it was unreasonable for the unsuccessful party to have subjected the successful party to the costs incurred and where there was relevant delinquency: Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6].

5. Mr Kaddour’s position was that the costs of the motion which were finally resolved by consent orders should be costs in the cause, disputing that the College had succeeded, while the College contended that costs should be awarded in its favour on an indemnity basis.

6. The College relied on its amended summons of 14 August 2025, which was served but not filed, by which it sought alternative relief requiring Mr Kaddour to amend his statement of claim to identify the alleged risk of harm he relied on, and to state the material facts on which he contended it was foreseeable and that the College had actual or foreseeable knowledge of.

7. The College also relied on the 29 April 2025 affidavit of its solicitor Mr Riordan which established the course it had pursued, in order to avoid having to pursue a motion, as well as the consent orders finally agreed after service of the amended motion. It contended that had Mr Kaddour not breached earlier orders which required him to give particulars of his claim, it would have been unnecessary to pursue the motion. Further, that it was relevant that his own submissions in respect of the motion had sought an order that it be dismissed, with costs to follow the event.

8. Costs ordinarily follow the event. In this case, I accept that it results in an order that Mr Kaddour bear the costs of the motion, given his final acquiescence to his need to replead.

9. Given that acquiescence, it must be accepted that it was his failure to comply with the Court’s earlier orders to provide particulars of his claims, which necessitated the pursuit of the motion, which was finally properly resolved by the consent orders agreed.

10. The College’s submission that Mr Kaddour’s failure to comply with the Court’s earlier orders to provide particulars and initial resistance of the motion, resulted in unnecessary costs being incurred, must be accepted. That approach certainly did not accord with the obligations imposed by s 56 of the Civil Procedure Act in relation to assisting the Court to achieve the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings.

11. As I explained in Trieu v ROOK CMIT Pty Ltd (Costs) [2024] NSWSC 304, a departure from those obligations can result in relevant misconduct which warrants an indemnity costs order: at [23]. I am satisfied that this is such a case, despite Mr Kaddour’s acquiescence, finally to the consent orders.

Orders

12. For these reasons I order that Mr Kaddour bear the College’s costs of the motion on an indemnity basis, as agreed or assessed.

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Amendments

02 December 2025

The Order has been amended on the Cover page by inserting the wording "on an indemnity basis". In Paragraph 12 of the Decision, the wording "on an indemnity basis" has been inserted.