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Representation: Counsel:
R Cheney SC (Plaintiff)
T Bagley (First Defendant)
Solicitors:
Construction Legal Pty Ltd (Plaintiff)
Department of Customer Service Legal (First Defendant)

File Number(s): 2025/00321205

Publication restriction: Nil

JUDGMENT

1. On 8 May 2026, I delivered my principal judgment in this matter: Peninsula Point Frederick Pty Ltd v Secretary, Department of Customer Service [2026] NSWSC 476. I deal now with the question of costs.

2. The plaintiff seeks its costs of the proceedings. The first defendant submits that the appropriate order is that each party bear their own costs of the proceedings.

3. I have given particularly careful consideration to the plaintiff’s submission that I should not take into account the view that I expressed at [111] of my principal judgment in this matter, being that the plaintiff’s own submissions to the reviewer caused or substantially contributed to the reviewer’s decision miscarrying. I am not persuaded to disregard that matter. I expressed my views about the nature and quality of the submissions made to the reviewer in my principal judgment. The plaintiff’s submissions to the internal reviewer were misconceived in substantial respects and, in places, strident. I find it readily understandable why, in that context, the reviewer came to overlook those parts of the submissions which I have found required separate attention.

4. Furthermore, the plaintiff continued its position as to the operation of the Strata Schemes Management Act 2015 (NSW) in this Court, a position which I have rejected. I accept that, as Jacobs J observed in Cretazzo v Lombardi (1975) 13 SASR 4 at 16, trials regularly occur in which the party who is in the end wholly or substantially successful nevertheless fails along the way on particular issues of fact or law, and that the ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful. However, each case must turn on its own facts. Against that consideration must be set the fact that the first defendant was put to the expense of developing lengthy legal arguments, most of which I accepted.

5. I have considered the plaintiff’s contention that the novelty of the statutory question supports a costs order in its favour. I do not accept it in the particular circumstances of this case. The first defendant, who was the only active contradictor, incurred these costs in a manner consistent with the model litigant policy, to assist the Court. In circumstances where the first defendant’s position has been mostly (albeit not entirely) vindicated, I am not persuaded that an adverse costs order against the first defendant is warranted.

6. I am unable to accept the plaintiff’s submission that the hearing length was unaffected by the position the plaintiff took. The plaintiff commenced these proceedings without joining the Owners. As I indicated in my principal judgment at [79], I found it surprising, on the plaintiff’s view of how the Act operated, that the plaintiff took no steps to ensure the Owners were heard before the reviewer. The plaintiff also failed to join the Owners to these proceedings, necessitating a second hearing day.

7. I accept the first defendant’s submission that the substantive issues on which the plaintiff failed took up a significant part of the trial and were, if anything, the dominant issues. The plaintiff enjoyed only limited success. There was a practical and substantive difference between the outcome sought by the plaintiff and the relief fashioned by the Court.

8. Taking all of these matters into account, and making a broad brush assessment based on the conduct of the proceedings, I have concluded that the appropriate order is that each party bear their own costs.

9. I order that each party bear their own costs of the proceedings.

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