Oakwood Constructions Pty Ltd v Wyndon Properties Pty Ltd
[2008] QDC 285
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- Unreported Judgment
- Oakwood Constructions Pty Ltd v Wyndon Properties Pty Ltd[2008] QDC 285
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Oakwood Constructions Pty Ltd v Wyndon Properties Pty Ltd[2008] QDC 285
Oakwood Constructions Pty Ltd v Wyndon Properties Pty Ltd[2008] QDC 285
[2008] QDC 285 | |
DISTRICT COURT | |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No 3470 of 2007 | |
OAKWOOD CONSTRUCTIONS PTY LTD | Plaintiff |
and | |
WYNDON PROPERTIES PTY LTD | Defendant |
BRISBANE | |
DATE 19/11/2008 | |
ORDER |
CATCHWORDS: | Property Law Act 1974 s 197 - Uniform Civil Procedure Rules r 5, r 212(2), r 250 - plaintiff builder seeking relief (including vesting of relevant land in it) consequent upon constructing a house for a purchaser which failed to complete the contract of sale it had with the defendant vendor - order made for inspection of the interior of the house notwithstanding that the plaintiff's solicitors' request inappropriately presented the inspection as relevant to the unimproved value of the land which it appeared could be assessed from its road frontages - defendant allowed some costs for attending to facilitate the inspection |
HIS HONOUR: This is an application by the plaintiff under rule 250 to permit a registered valuer to enter premises described as lot 24 Lakes Drive Laidley, specifically house premises, which have been constructed on that land by it.
The underlying proceeding relies on section 197 of the Property Law Act 1974. That makes potentially available an extraordinarily wide range of relief which may go as far as a court's order vesting in the improver land owned by another which has been improved on some mistaken basis. The mistake in this context appears to have been in respect of the ownership of lot 24. The plaintiff's dealings in relation to the land were with a company called Fasta Financial Group Pty Ltd which engaged it to construct a house there. At that time the land was, or was about to be, under contract of sale, Fasta being the purchaser and the defendant the vendor. The contract fell through and in those circumstances relief under section 197 is sought. The plaintiff's assumption is that the defendant, which is represented by Mr Richards, its director, is taking advantage of the situation and trying to get a free house.
It appears to me self-evident that in the proceeding under section 197 valuations are likely to be extremely useful evidence for the court when it determines what particular, if any at all, relief the plaintiff might be entitled to.
The application this morning has been hotly contested by Mr Richards. That's on the basis of his understanding that the valuation exercise to be facilitated by the inspection order relates to the unimproved value of the land. Mr Richards has tendered an e-mail communication from a local valuer presenting the view that a drive-by valuation is acceptable in circumstances where what is in question is unimproved value.
He asserts that that is what the valuation exercise relevantly in contemplation is about. His understanding is consistent with what the plaintiff's solicitors wrote in a letter of 28 October 2008:
"Rule 250 is clear in that the Court may make an order for the inspection of the property if the property is the subject of a proceeding and that inspection of the property is necessary for deciding an issue in the proceeding.
The property is clearly referred to in these proceedings. In particular, paragraph 8 of the statement of claim pleads that the unimproved value of the property is $58,000 and that at 4th of December 2007 the unimproved value of the lot was $85,000.
Paragraph 8 of the defence denies this, therefore, this is a fact in issue and can be resolved by assisting the Court in providing Mr Johnson access to property to prepare his report. The inspection of the property is necessary for deciding an issue in the proceedings."
I think that any reader of that passage would assume that what of interest was the unimproved value. Unsurprisingly, Mr Richards responded on 3rd of November 2008. "We advise that your valuer does not require physical access to the property to do a valuation of the unimproved value of the land. The direct comparison approach is considered the most appropriate method of valuation and, in addition, lot 24 is a corner block where the whole of the property can be clearly viewed from the road."
The solicitor's response did not, as one might expect, indicate that the relevant issue was wider than the unimproved value issue. The solicitor's response asked for confirmation: "In accordance with your letter of 22 October 2008 to get access to the property and inside the dwelling, it is necessary to complete an accurate valuation report to assist the Court."
Although communications from Mr Johnson to the solicitors had made it clear that to complete a valuation of property "as is" it was necessary for him to get inside the structure to ascertain extended works to date, the standard of workmanship et cetera and additionally the design aspect of the residence,
I think that there has been a failure of communication here and I understand why Mr Richards is making points in the way that he does. On the other hand, the likely importance of a valuation based on the property as it is, namely, including the house, as is, I think is clear.
The philosophy of the rules, which can be found in rule 5, indicates to me that it would be a travesty for the court not to determine today what is really important. In that regard, the case for an order for inspection is compelling.
There are some difficulties about it given that Mr Richards, who appears to be the relevant officer of the respondent, resides in Indooroopilly, whereas the property (which the court's told is vacant and kept locked up) is in Laidley. Inevitably, there's going to be some inconvenience to Mr Richards or someone else in being present for the inspection by Mr Johnson.
I think the defendant's requirement to have somebody there is reasonable, and that the proposal that the defendant make the property available generally from 9 a.m. to 5 p.m. on a nominated Saturday is unreasonable in leaving the defendant in uncertainty and at risk of having to waste time. There ought to be an inspection at a fixed time.
In addition, there is an issue of costs which the defendant will incur in making the property available. Those have been nominated by Mr Richards as $100 an hour, to which he added later "plus GST". I am not persuaded that if arrangements are covered in a Court order GST would be exigible. In any event, the court really is taking a broad brush approach.
Mr Barlow has submitted that the effect of rule 250(4)(a), which provides for an order for payment of the costs of a person who is not a party, has the effect that no order may be made for payment of the costs of a person who is a party. Treating the company and Mr Richards as one and the same, if that may be done, I can't see why in principle an order for inspection, which is onerous, ought not to be accompanied by a requirement for costs to be covered. There are going to be substantial costs for fuel in any event which would be subsumed in the hourly rate which is proposed in the order.
Another thought of Mr Richards has been that he ought to get a copy of Mr Johnson's report. He is likely to get one anyway, given rule 212(2). Nevertheless, I thought it appropriate to include a relevant provision in the order. I will hear from the parties as to whether any changes should be made. At present the document which I've initialled as the draft order provides as follows:
- The respondent provide access for Lionel Bruce Johnson to enter upon lot 24 Lakes Drive Laidley (lot 24) for the purpose of obtaining a property valuation report on 13 December 2008 at 8 a.m. (the inspection);
- For the purposes of the inspection, Lionel Bruce Johnson be authorised to enter the house constructed upon lot 24 at the time aforesaid and to remain for the time needed to collect information required for his report;
- Mr Johnson's report be disclosed to the respondent;
- The applicant pay to the respondent on account of the trouble and expense occasioned to it in facilitating the inspection the sum of $300 on the basis of Mr Johnson's being let in to the house for a period of one hour at 8 a.m, such sum to be increased by $100 for each hour, or part of an hour, required;
- The applicant's costs of and incidental to this application be its costs in the cause.
...
MR RICHARDS: Your Honour, could I‑‑‑‑‑
HIS HONOUR: Yes.
MR RICHARDS: ‑‑‑‑‑before you leave. Just on point 4 about
the costs, you haven't got time frames or when they're going to pay them or they're both before the 13th. Did you say including GST, your Honour, or excluding?
HIS HONOUR: No, no, I'm not going to get into GST. I just don't think it's that sort of service but don't take advice from me that that's the position. Well‑‑‑‑‑
MR BARLOW: I'm happy to say from the bar table if Mr Richards renders an account to my clients then it will be paid within 14 days.
HIS HONOUR: All right. Well, you've heard Mr Barlow say that.
MR RICHARDS: Yes, I'll render an account today.
HIS HONOUR: I'd like the transcript to include that exchange.
...
HIS HONOUR: I'll add liberty to apply to the order.