Grandmist Pty Ltd v RS Melloy Pty Ltd
[2000] QDC 374
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- Grandmist Pty Ltd v RS Melloy Pty Ltd[2000] QDC 374
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Grandmist Pty Ltd v RS Melloy Pty Ltd[2000] QDC 374
Grandmist Pty Ltd v RS Melloy Pty Ltd[2000] QDC 374
DISTRICT COURT | No 3397 of 1999 |
APPELLATE JURISDICTION
JUDGE O'SULLIVAN
GRANDMIST PTY LTD | Appellant |
and
R S MELLOY PTY LTD | Respondent |
BRISBANE
DATE 20/12/2000
JUDGMENT
HER HONOUR: This is an appeal by the plaintiff against the decision of Ms Previtera, the learned Stipendiary Magistrate who delivered a judgment on 21 July 1999. There are a number of grounds of appeal and I will deal with them in no particular order.
The written submissions and oral argument at the appeal hearing differed somewhat from the grounds of appeal set out in the Notice of Appeal filed on 17 August 1999.
Ground of Appeal:
The learned Stipendiary Magistrate erred in finding that the defendant had used sufficiently comparable leasing evidence to support its valuation of a market value for the subject property.
The learned Stipendiary Magistrate carefully analysed the evidence of the valuers called by the parties. She considered the argument that the properties used in the second valuation were not sufficiently comparable and she clearly accepted the evidence of Messrs Brett, Yeates and Crane, especially Mr Brett. This included explanations as to why the defendant had used comparators from further afield, notwithstanding that they were not entirely comparable.
Evidence was given that the older leases were not considered because of the rapidly declining market and the importance of differences over time.
None of the leasing details referred to in the second valuation or in Exhibit 5 were referenced in the third valuation.
I agree with counsel for the respondent that in any event the plaintiff did not lead evidence to show that if there had been investigations concerning rent review clauses or rental premiums and the existing leases, that a different result would have been achieved.
I find that there was no error by the learned Stipendiary Magistrate. There is no substance in this ground of appeal.
Ground of Appeal:
The learned Stipendiary Magistrate erred in finding that the third valuation was not a valid comparator as evidence of market value.
The learned Stipendiary Magistrate considered the evidence and accepted the evidence of Mr Brett, including his opinion as to relevant differences between the valuations themselves and in the market.
I agree with counsel for the respondent that it was open on the evidence for the learned Stipendiary Magistrate to find that there were relevant and significant differences between the two valuations.
I am unable to find that the learned Stipendiary Magistrate erred in her finding. There is no substance in this ground of appeal.
Ground of Appeal:
The learned Stipendiary Magistrate failed to give sufficient weight to the second valuation being an undervaluation.
The learned Stipendiary Magistrate accepted the explanations for the decline in value. I consider her findings were open. There is no substance in this ground of appeal.
Ground of Appeal:
The learned Stipendiary Magistrate erred in finding a drop in the commercial property market.
She accepted the evidence of Messrs Brett, Crane and Weir and I consider her findings were open.
The appellant submitted that she ought to have given greater weight to the fact that the second valuation was based on industrial property because of a file reference to industrial sales. However, this was not the only evidence of a decline in market.
I can find no error in the findings of the learned Stipendiary Magistrate. There is no substance in this ground of appeal.
Ground of Appeal:
The learned Stipendiary Magistrate gave insufficient weight to the properties identified by the plaintiff in Exhibit 5.
The plaintiff did not lead evidence from a valuer to support Exhibit 5.
The learned Stipendiary Magistrate went through the items in Exhibit 5 and considered them in the light of the evidence of Mr Crane and Mr Brett, which she accepted. I consider her findings were open on the evidence. There is no substance in this ground of appeal.
Ground of Appeal:
The learned Stipendiary Magistrate gave insufficient weight to the difference between the first and second valuations.
The difference was about 30 per cent. Counsel referred to Baxter v. Gapp (1939) 2 KB 271 and Oz Finance Pty Ltd v. J L W (Qld) Pty Ltd (1998) QSC 155.
The learned Stipendiary Magistrate accepted the defendant's evidence explaining the difference. I consider her findings were open. There is no substance in this ground of appeal.
Summary:
The appellant has not discharged its onus in respect of any of the grounds of appeal. I dismiss the appeal.
I order the appellant to pay the respondent's costs of the appeal.