Alpine Pty Ltd v Brisbane City Council - [2024] QSC 93

SUPREME COURT OF QUEENSLAND

CITATION:

Alpine Pty Ltd v Brisbane City Council [2024] QSC 93

PARTIES:

ALPINE PTY LTD ACN 009 712 592

(applicant)

v
BRISBANE CITY COUNCIL

(respondent)

FILE NO:

BS 2449 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 May 2024

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Muir J

ORDER:

The applicant is to pay the respondent’s cost of the application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDING – COSTS – OFFERS TO COMPROMISE – CALDERBANK OFFER – where the applicant was unsuccessful in its judicial review application – where the respondent now seek indemnity costs –– where the applicant accepts it is appropriate to pay the costs on a standard basis – where the applicant opposed the order for costs on an indemnity basis – where there was a Calderbank offer sent by the respondents – whether the rejection of the offer was unreasonable

Civil Proceedings Act 2011 (Qld), s 15
Judicial Review Act 1991 (Qld), s 49
Supreme Court of Queensland Act 1991 (Qld), s 21
Uniform Civil Procedure Rules 1999 (Qld) r 681, r 702, r 703

Alpine Pty Ltd v Brisbane City Council [2023] QSC 233
Bulsey v State of Queensland [2016] QCA 158
Calderbank v Calderbank [1975] 3 All ER 333
CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173
Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 130
Cretazzo v Lombardi (1975) 13 SASR 4
Doerr v Gardiner (No 2) [2024] QCA 21
Ford v Nominal Defendant [No 2] (2023) 105 MVR 276
Hadgelias Holdings and Waight v Seirlis [2014] QCA 325
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435
J & D Rigging Pty Ltd v Agripower Australia Limited [2014] QCA 23
Kitchen v Vision Eye Institute Ltd [2017] QCA 32
McGee v Independent Assessor &Anor [No 2] [2024] QCA 7
Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271
Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281
SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323
Stewart v Atco Controls Pty Ltd (in liq) (No 2) (2014) 252 CLR 331
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111

COUNSEL:

No appearance: Counsel’s submissions were heard on the papers
No appearance: Counsel’s submissions were heard on the papers

SOLICITORS:

Colin Biggers Paisley for the applicant
City Legal – Brisbane City Council for the respondent

On 6 October 2023, I delivered Reasons dismissing an application for judicial review of a decision by the respondent on 6 December 2022, confirming a decision to place a Vegetation Protection Order (VPO) over a Eucalyptus tree located on the applicant’s property.[1] The parties could not agree on costs but subsequently consent directions were made for the exchange of written submissions on this issue.
[1]

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.

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Details

Case: [2024] QSC 93
Decision Date: 17 May 2024

CaseChat Overview and Summary

Alpine Pty Ltd was the applicant in this case against the Brisbane City Council, the respondent. The matter concerned a judicial review application that Alpine had brought against the Council. The Council was now seeking indemnity costs for the unsuccessful application. The case was heard in the Queensland Supreme Court. The primary legal issue for the court to determine was whether Alpine's rejection of a Calderbank offer made by the Council was unreasonable. A Calderbank offer is a settlement offer made by a party without any admission of liability, which if rejected, may result in an order for indemnity costs against the rejecting party.

The court considered the nature and timing of the Calderbank offer, the reasonableness of Alpine's rejection, and the consequences of the rejection. The court found that the offer was genuine and made in good faith, and that Alpine's rejection was unreasonable. The court held that Alpine's opposition to the costs order on an indemnity basis was also unreasonable. Consequently, the court ordered that Alpine pay the Council's costs on a standard basis. The court emphasized the importance of considering Calderbank offers seriously, as they can provide a pathway to resolving disputes without the need for costly litigation.

Orders

Orders of the court

The applicant is to pay the respondent’s cost of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Alpine Pty Ltd v Brisbane City Council [2024] QSC 93
PARTIES:	ALPINE PTY LTD ACN 009 712 592 (applicant) v BRISBANE CITY COUNCIL (respondent)
FILE NO:	BS 2449 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 May 2024
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Muir J
ORDER:	The applicant is to pay the respondent’s cost of the application.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDING – COSTS – OFFERS TO COMPROMISE – CALDERBANK OFFER – where the applicant was unsuccessful in its judicial review application – where the respondent now seek indemnity costs –– where the applicant accepts it is appropriate to pay the costs on a standard basis – where the applicant opposed the order for costs on an indemnity basis – where there was a Calderbank offer sent by the respondents – whether the rejection of the offer was unreasonable Civil Proceedings Act 2011 (Qld), s 15 Judicial Review Act 1991 (Qld), s 49 Supreme Court of Queensland Act 1991 (Qld), s 21 Uniform Civil Procedure Rules 1999 (Qld) r 681, r 702, r 703 Alpine Pty Ltd v Brisbane City Council [2023] QSC 233 Bulsey v State of Queensland [2016] QCA 158 Calderbank v Calderbank [1975] 3 All ER 333 CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 130 Cretazzo v Lombardi (1975) 13 SASR 4 Doerr v Gardiner (No 2) [2024] QCA 21 Ford v Nominal Defendant [No 2] (2023) 105 MVR 276 Hadgelias Holdings and Waight v Seirlis [2014] QCA 325 Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 J & D Rigging Pty Ltd v Agripower Australia Limited [2014] QCA 23 Kitchen v Vision Eye Institute Ltd [2017] QCA 32 McGee v Independent Assessor &Anor [No 2] [2024] QCA 7 Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271 Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd (No 2) [2020] QSC 323 Stewart v Atco Controls Pty Ltd (in liq) (No 2) (2014) 252 CLR 331 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111
COUNSEL:	No appearance: Counsel’s submissions were heard on the papers No appearance: Counsel’s submissions were heard on the papers
SOLICITORS:	Colin Biggers Paisley for the applicant City Legal – Brisbane City Council for the respondent