Liu v Stephen Grubits and Associates (No.2)

This matter concerned an application by the plaintiff, Ms Liu, for an order that the defendant, Stephen Grubits and Associates, provide further and better particulars of certain paragraphs of its defence. The dispute arose in the context of an ongoing proceeding where the plaintiff alleged professional negligence against the defendant. The application was heard in the District Court of New South Wales.

The primary legal issue before the Court was whether the defendant’s defence, which asserted that the plaintiff had failed to mitigate her loss, was sufficiently particularised to allow the plaintiff to understand the case she had to meet. Specifically, the Court had to determine whether the defence adequately identified the steps the plaintiff was alleged to have failed to take, and the nature of the loss that flowed from such failure.

Judge Driver reasoned that the purpose of particulars is to ensure that a party is not taken by surprise and has a fair opportunity to prepare its case. The Court found that the existing defence lacked the necessary specificity regarding the alleged failures to mitigate. It was not enough for the defence to broadly state that the plaintiff failed to mitigate; it needed to outline the specific actions or omissions that constituted this failure and how those failures directly caused or exacerbated the loss claimed. The Court applied the principles that particulars should be sufficiently detailed to inform the other party of the case they are required to answer, and that a general assertion of failure to mitigate is insufficient without supporting detail.

The Court ordered that the defendant provide further and better particulars of its defence within 28 days.