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Flecknoe v Pared Ltd (No 2)

Flecknoe v Pared Ltd (No 2)

Case [2025] NSWSC 854 4 August 2025

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Supreme Court

New South Wales

Medium Neutral Citation: Flecknoe v Pared Ltd (No 2) [2025] NSWSC 854
Hearing dates: On the papers (written submissions received on 23 July 2025 and 20 July 2025)
Date of orders: 04 August 2025
Decision date: 04 August 2025
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) 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.

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

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…

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 Flecknoe v Pared Ltd (No 2)

Details

AGLC: Flecknoe v Pared Ltd (No 2) [2025] NSWSC 854
Case: [2025] NSWSC 854
Decision Date: 04 August 2025

CaseChat Overview and Summary

Flecknoe was a plaintiff who had initiated proceedings against Pared Ltd, a company, regarding a dispute concerning a contract for the sale of goods. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought damages for breach of contract, claiming that the defendant had failed to deliver the goods as agreed. The defendant, in turn, argued that the plaintiff had not fulfilled certain conditions precedent to the delivery, thereby absolving the defendant from its obligations under the contract.

The court was required to determine whether the plaintiff was entitled to recover the damages claimed and, if so, the extent of those damages. Additionally, the court needed to consider the application for costs by the defendant, who had partially succeeded in its defence, arguing that the plaintiff's claim was overstated and that the costs should be apportioned accordingly. The court had to decide if it was appropriate to depart from the general rule on costs when both parties had a measure of success.

In its judgment, the court found that while the plaintiff was entitled to some damages for the breach, the claim was overstated. The court reduced the amount of damages to reflect the actual loss suffered by the plaintiff. Regarding the costs, the court acknowledged that both parties had a measure of success and that the defendant's application for costs should be considered in this light. The court determined that it was appropriate to depart from the general rule and grant the defendant a portion of its costs, taking into account the partial success of both parties. The court ordered that the plaintiff pay 70% of the defendant's costs and the defendant pay 30% of the plaintiff's costs.

Orders