Livin the Dream Pty Ltd v Attorney-General (No 2)

[2025] QSC 36

SUPREME COURT OF QUEENSLAND

CITATION:

Livin the Dream Pty Ltd v Attorney-General & Ors (No 2) [2025] QSC 36

PARTIES:

LIVIN THE DREAM PTY LTD
(applicant)

v
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(first respondent)

and

HOMES OF HOPE LIMITED
(second respondent)

and

MICHAEL JOHN CASPANEY (in his capacity as Liquidator of Love your World Pty Ltd)
(third respondent)

and

LOVE YOUR WORLD PTY LTD (IN LIQUIDATION)
(fourth respondent)

FILE NO:

6620 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 March 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions dated 18 and 19 February 2025

JUDGE:

Martin SJA

ORDERS:

1.    The Applicant is to pay the costs of the Third Respondent and Fourth Respondent of the application on the standard basis until 20 September 2024 and, thereafter, on the indemnity basis.

CATCHWORDS:

PROCEDURE – COSTS – INDEMNITY COSTS – where an application was dismissed – where, five days prior to the hearing of the application, the third and fourth respondents made a Calderbank offer to settle that gave the applicant two days to respond – whether it was unreasonable not to accept the offer – whether the third and fourth respondents should be awarded indemnity costs

Uniform Civil Procedure Rules 1999 (Qld), r 355

Calderbank v Calderbank [1975] 2 All ER 333, cited
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801, applied
Livin the Dream Pty Ltd v Attorney-General [2025] QSC 21, cited
M Salazar Properties Pty Ltd v Jeffs [2024] QCA 257, applied
McGee v Independent Assessor (No 2) [2024] QCA 7, cited
Thornton v Lessbrook Pty Ltd (No 2) [2010] QSC 363, cited

COUNSEL:

P O’Higgins KC and A O’Brien for the applicant

B Kidston for the third and fourth respondents

SOLICITORS:

Neumann & Turnour Lawyers for the applicant

Rose Litigation Lawyers for the third and fourth respondents

1. On 17 February 2025 I made orders[1] dismissing Livin the Dream Pty Ltd’s application and allowing the parties to make written submissions on the question of costs. The Attorney-General did not seek any order for costs and made no submissions. The second respondent took no part in the proceedings. Submissions were made by Livin the Dream Pty Ltd (LTD) and the third and fourth respondents (the Liquidator).

   [1] [2025] QSC 21

2. The dispute between the remaining parties arises out of an unaccepted offer made by the Liquidator. LTD did not oppose an order that it pay the Liquidator’s costs of the application on the standard basis. The Liquidator sought an order that its costs be paid on the indemnity basis.

   The nature and contents of the offer

3. On Tuesday, 17 September 2024, the Liquidator made an offer to the effect that the Liquidator would agree to the proceeding being discontinued on the basis that LTD pay the Liquidator’s costs up to the date of acceptance of the offer on the standard basis. It gave LTD two days to respond. The offer was not accepted. The substantive application was heard on Monday, 23 September 2024.

4. The offer was, in brief, that the Liquidator would agree to the proceeding being discontinued on the basis that LTD paid the Liquidator’s costs up to the date of acceptance. The letter of offer was marked “without prejudice save as to costs” and stated that the Liquidator “reserve[d] the right to rely on this correspondence in respect of costs.” It did not expressly state that non-acceptance would found an application for indemnity costs.

5. It was not an offer under the UCPR – not least because the offer could not be open for not less than 14 days (r 355)[2]. It is, though, a Calderbank offer[3].

   [2]           Thornton v Lessbrook Pty Ltd (No 2) [2010] QSC 363

   [3] [1975] 2 All ER 333

   Was it unreasonable not to accept?

6. LTD argues that it was not unreasonable not to accept the offer because:

   (a)It was made very late (less than a week before the hearing) and “there was little to be gained at that late stage”.

   (b)LTD had a short time to consider it.

   (c)It contained no significant element of compromise.

   (d)At the date of the offer the application was not without prospects of success.

   (e)It did not foreshadow an application for indemnity costs.

7. It is, as LTD says, true that the offer was made within a week of the hearing. By that stage, the parties had exchanged all affidavit material and submissions. LTD was in full possession of all relevant material and was thus able to make a completely informed decision. This was not a case which depended upon findings of credit or the exercise of a discretion. The lateness of the offer has little weight.

8. LTD was represented by solicitors and senior counsel. It was not a complicated offer and sufficient time was given to consider it.

9. It was an offer to compromise which had an effect on the costs likely to be incurred. The nature of the litigation was such that only an “all or nothing offer” was reasonably available.

10. The offer did not contain an express statement that non-acceptance would found an application for indemnity costs. That is relevant but not determinative[4]. I do not accept that this is a case in which the recipients of such an offer would not immediately realise the consequences of non-acceptance.

    [4]           McGee v Independent Assessor (No 2) [2024] QCA 7 at [28]

11. It was unreasonable of LTD not to accept the offer.

    What order should be made?

12. The Liquidator seeks an order that LTD pays costs on an indemnity basis for the whole proceeding. I do not accept that this case, apart from the consequences of non-acceptance, falls outside the general rule that costs should be on a party and party basis. The principles in Colgate Palmolive Co v Cussons Pty Ltd[5], which were recently considered in M Salazar Properties Pty Ltd v Jeffs[6], lead me to the conclusion that the Liquidator should have an order for costs on the indemnity basis after the expiration of a reasonable time for the acceptance of the offer, which would have been no later than 20 September 2024.

    [5] (1993) 46 FCR 225

    [6] [2024] QCA 257

    Order

13. The Applicant is to pay the costs of the Third Respondent and Fourth Respondent of the application on the standard basis until 20 September 2024 and, thereafter, on the indemnity basis.