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Valuer-General v Eastcote Pty Ltd[2019] QLAC 3

Valuer-General v Eastcote Pty Ltd[2019] QLAC 3

 

LAND APPEAL COURT OF QUEENSLAND

 

CITATION:

Valuer-General v Eastcote Pty Ltd as Tte [2019] QLAC 3

 

Valuer-General

(appellant)

v

Eastcote Pty Ltd as Tte

ACN 010 320 439

(respondent)

FILE NOS:

LAC002-18

Land Court No LVA093-17

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Appeal from the Land Court of Queensland

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

19 July 2019

DELIVERED AT:

Brisbane

HEARD ON:

HEARD AT:

25 February 2019; 8 May 2019

Brisbane

THE COURT:

Mullins J

FY Kingham, President of the Land Court

PG Stilgoe OAM, Member of the Land Court

ORDERS:

  1. Appeal allowed.
  2. The orders made by the Land Court on 31 May 2018 in proceeding LVA093-17 are set aside.
  3. Remit proceeding LVA093-17 for hearing by the Land Court before a different Member.
  4. Any submissions seeking a costs order in respect of the appeal must be filed and served within 14 days of the publication of these reasons.

CATCHWORDS:

REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where the Valuer-General issued a maintenance valuation for the same period as the valuation which was the subject of the appeal in the Land Court – where the parties reached a commercial agreement that they would be bound by the outcome of the appeal to the Land Court despite the maintenance valuation – where the maintenance valuation did not change or nullify the annual valuation, but changed its operation and gave rise to additional objection and appeal rights – where the Valuer-General’s conduct in issuing the maintenance valuation was incongruent with the statutory framework for land valuations under the Land Valuation Act 2010 – where the parties’ agreement was vague and did not sit comfortably with the statutory framework for land valuations under the Land Valuation Act 2010

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – where the Member at first instance warned the parties’ expert valuers repeatedly about their conduct in giving evidence – where the Member concluded that the appellant’s valuer was not impartial and rejected his evidence – whether the Member erred in failing to give the appellant notice of his Honour’s intention to reject its valuer’s evidence – where procedural fairness required the Member to give such notice

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where the Member at first instance rejected the appellant’s expert valuer’s evidence as partisan – where the Member referenced four warnings his Honour gave the appellant’s valuer about his conduct in giving evidence as his Honour’s reasons for rejecting his evidence – whether the Member provided adequate reasons for rejecting the appellant’s valuer’s evidence – where, having regard to the nature of the appeal and the importance of valuation evidence, the Member did not provide adequate reasons for rejecting the evidence

EVIDENCE – GENERAL PRINCIPLES – EVIDENCE LAW – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – where the Member at first instance concluded that the appellant’s expert valuer was not an independent witness and rejected his evidence entirely – where the learned Member erred in failing to consider the valuer’s evidence, rather than considering any partisanship as affecting the weight to be given to his evidence

Land Valuation Act 2010 s 75(3)(a), s 95(1)

Beedell Farms & Grazing Pty Ltd v The Valuer-General (1979) 6 QLCR 109, followed

Eastcote Pty Ltd as Tte v Valuer-General [2018] QLC 11, related

APPEARANCES:

DP O'Brien QC, with JP Hastie (instructed by In-house Legal, Department of Natural Resources, Mines and Energy) for the appellant

AR Lonergan (solicitor), Colin Biggers & Paisley for the respondent (25 February 2019)

RN Traves QC (instructed by Colin Biggers & Paisley) for the respondent (8 May 2019)

  1. [1]
    MULLINS J: The Valuer-General appeals from the decision of the learned Member to allow an appeal by the respondent Eastcote Pty Ltd as trustee pursuant to s 157 of the Land Valuation Act 2010 (Qld) (the Act) against the appellant’s decision not to allow an objection to its annual valuation of the subject land at 1-19 Pacific Motorway, Helensvale as at 1 October 2015 of $7,400,000 and to determine the value of the land as being $7,100,000:  Eastcote Pty Ltd as Tte v Valuer-General [2018] QLC 11 (the reasons).  Although the parties’ designation in the reasons are the reverse of their roles in this appeal, I will refer to them in these reasons by their roles in this appeal, even when referring to the proceeding before the Land Court.
  1. [2]
    As part of the routine valuation cycle for 2015, the appellant valued the subject land as at 1 October 2015 at $7,400,000 with an effective date of 30 June 2016. The respondent objected to that valuation, contending the correct valuation should be $6,950,000. The appellant rejected the objection on 25 January 2017 for the reason that the sale prices of similar properties supported the applied value and no change in the valuation should be made. The respondent appealed to the Land Court against the appellant’s decision on the objection by notice of appeal filed in the Land Court on 27 March 2017. At the hearing before the Member, the respondent’s valuer made a correction to his valuation which resulted in a site valuation of $7,100,000.
  1. [3]
    By 29 November 2017 the appellant decided that the annual valuation of the subject land as at 1 October 2015 of $7,400,000 was too low in that it did not properly reflect the sales evidence which supported a site valuation as at 1 October 2015 of $9,200,000. The appellant therefore caused a maintenance valuation for the 1 October 2015 valuation (also effective from 30 June 2016) to be issued for the subject land in the amount of $9,200,000. The appellant relied on s 95(1) of the Act to issue the maintenance valuation which permits a valuation to be amended if the appellant considers it is affected by an error or omission that it is necessary to correct. Under s 75(3)(a) of the Act, the effect of an annual valuation is subject to any maintenance valuation for the annual valuation.
  1. [4]
    The Member was informed at the commencement of the hearing of the appeal before the Land Court on 12 February 2018 that the maintenance valuation of $9,200,000 had superseded the annual land valuation notice of $7,400,000 and expressed concern about the utility of the appeal against the superseded valuation. The Member was then informed that the parties had agreed, in effect, that any appeal against the valuation of $9,200,000 would abide the outcome of the appeal in respect of the valuation of $7,400,000.
  1. [5]
    As the jurisdiction of the Land Court and the Land Appeal Court is statutory, during the hearing of this appeal members of this court raised the issue of whether the jurisdiction of either court was affected by the subject matter of the appeal being displaced by the maintenance valuation. The parties were directed to, and did, file further written submissions to address this issue.
  1. [6]
    A preliminary issue therefore needs to be decided: the effect of the maintenance valuation on the annual valuation that was the subject of the appeal to the Land Court.
  1. [7]
    The fact of the maintenance valuation had been before the Member, but the maintenance valuation had not been tendered in evidence before the Member. The appellant purported to tender the maintenance valuation during the hearing of the appeal before this court, but tendered the maintenance valuation for the subject land issued on 1 November 2017 for $9,200,000 with the date of valuation being 1 October 2016 and the date of effect being 30 June 2017. Mr Crowley who is a valuer in the employ of the appellant exhibited the relevant maintenance valuation to his affidavit filed in connection with the appeal to this court on 5 March 2019. Mr Crowley explained in his affidavit the steps that resulted in the issuance of the maintenance valuation. A further hearing before this Court took place on 8 May 2019, as the respondent applied to cross-examine Mr Crowley. At that hearing, the appellant conceded that, if he were successful on any of the grounds of appeal relating to the Member’s rejection of the appellant’s valuer’s evidence, the appropriate orders were the appeal should be allowed, the orders made by the Land Court on 31 May 2018 set aside, and the matter should be remitted to the Land Court for a further hearing. The appellant also abandoned reliance on the ground of appeal that the respondent had failed to discharge its onus of proving the grounds set out in its notice of appeal to the Land Court. The respondent’s application to cross-examine Mr Crowley was refused.
  1. [8]
    The Member had been unhappy about the manner in which each of the parties’ valuers gave their evidence in the Land Court and concluded at [17] of the reasons that the appellant’s valuer was “argumentative and partisan” and “did not qualify as an independent expert whose opinion the Court could place any reliance upon” that had the consequence that the Member at [24] of the reasons decided not to analyse the sales relied on by the appellant’s valuer. Although the Member also described the respondent’s valuer at [25] of the reasons in terms of his being “unresponsive to questioning and argumentative” and “excessively partisan and an advocate rather than an independent expert”, the Member at [61] of the reasons accepted the respondent’s valuer’s use of comparable sales and the validity of the valuation conclusion which he drew from them.
  1. [9]
    Apart from the preliminary issue, the key issues to be determined on this appeal are whether:
  1. (a)
    the Member erred by denying the appellant natural justice by rejecting his valuer’s evidence without giving notice of his intention to do so;
  2. (b)
    the Member failed to give any, or any adequate, reasons for the rejecting the appellant’s valuer’s evidence;
  3. (c)
    the Member erred by rejecting and failing to consider any of the appellant’s valuer’s evidence on the basis that the valuer was an advocate and not an independent witness.    

Preliminary issue

  1. [10]
    The appellant submits that a maintenance valuation (which as recognised by s 84 of the Act is a new valuation) does not change or nullify the annual valuation, but pursuant to s 75(3) of the Act affects the operation of the annual valuation which it amends. It is submitted that any objection or appeal rights attaching to the annual valuation remain, but there are additional objection and appeal rights which arise as a result of the maintenance valuation (as recognised by s 104(c) of the Act). The respondent endorses the appellant’s submissions on the effect of the maintenance valuation.
  1. [11]
    The appellant relies on the decision of this court in Beedell Farms & Grazing Pty Ltd v The Valuer-General (1979) 6 QLCR 109 where, in respect of the similar provisions in the Valuation of Land Act 1944 (Qld) (VLA), the court rejected the submission that subsequent notices of valuation issued pursuant to s 13(2) of the VLA, following the progressive subdivision of the landowner’s parcel, not only superseded the valuations previously notified, but also nullified all rights of objections and appeal appertaining to the superseded valuations.  The court held at 117-118 that an express provision is required to take away any vested right of appeal allowed by statute and the fact that s 13(2) of the VLA expressly gave rights of objection and appeal in respect of amended or altered valuations did not by necessary implication nullify all rights or objection and appeal in respect of superseded valuations. 
  1. [12]
    Beedell remains authoritative in interpreting the corresponding provisions of the Act.  As a matter of statutory interpretation and following the approach in Beedell, the maintenance valuation issued under s  95 of the Act did not of itself affect the existing right of appeal the respondent had against the annual valuation that was otherwise displaced by the maintenance valuation.  Without the agreement reached between the parties as to the continuance of the appeal to the Land Court, the utility of the appeal against the disallowance of the objection to the annual valuation in light of the maintenance valuation must have been in question. 
  1. [13]
    It should be noted, however, that there were good reasons for the amended valuations in Beedell and they differed in timing and circumstances to the issue of the maintenance valuation for the same land, same date of valuation and same effective date as the annual valuation that is the subject of the current appeal.  It should also be noted that the maintenance valuation was issued after the appellant’s objection decision that confirmed the correctness of the annual valuation, yet the provision relied on for issuing the maintenance valuation applies only if the annual valuation were affected by “an error or omission that it is necessary to correct”.  Apart from the appeal right given by the appellant’s disallowance of the respondent’s objection, the fact that the maintenance valuation issued for $1.8m more than the annual valuation detracted from the objection process that was undertaken in respect of the annual valuation. 
  1. [14]
    I agree with President Kingham’s reasons on the incongruence between the agreement between the parties as to the continuance of the appeal to the Land Court and the application of the outcome to the maintenance valuation (that was not the subject of the appeal) and the statutory framework for valuation, objection and appeal.

The appeal before the Land Court

  1. [15]
    In accordance with the orders made by the Land Court, the parties’ valuers met on 30 November 2017 to discuss, and attempt to reach agreement in relation to, the issues in dispute on the appeal, as it related to their area of expertise. Document 6 in the agreed bundle was the joint expert report (JER) that was produced as a result of those discussions. Both valuers gave evidence in the Land Court. The respondent’s valuer’s evidence took a little more than one full day and the appellant’s valuer’s evidence took one full day. The only other witness was the quantity surveyor Mr Davidson who was engaged by the appellant and prepared a report dated 26 October 2017.
  1. [16]
    The JER noted the subject property is used for large format retailing and is improved by two semi connected buildings and anchored by A-Mart Furniture with other smaller tenancies. The GLA is estimated to be 10,550m² more or less (32.2 per cent site cover) and approved for future extension of about 1,540m² (36.9 per cent site cover). The property is located in the Oxenford Local Area Plan of the Gold Coast Planning Scheme 2003 and specifically in the “Pacific Business Corridor – Precinct 7”. The respondent’s valuer was of the opinion the highest and best use is the existing use or similar use, whereas the appellant’s valuer was of the opinion the highest and best use is large format retailing as used in accordance with current town planning parameters. The valuers were agreed on the direct comparison method of valuation as the appropriate methodology. The primary method is direct comparison on a dollar rate/m² of effective site area.
  1. [17]
    The JER then set out the seven sales relied on by the respondent’s valuer, the appellant’s valuer’s analysis of the sales and the respondent’s valuer’s comments on that analysis. This was followed by the seven sales relied on by the appellant (although sale 5 was in common with the respondent’s sale 2) and included the respondent’s valuer’s comments on the sales and the appellant’s valuer’s comments in response. The JER concluded with the respondent’s valuation calculation applying a starting rate of $275/m² for the subject land, adjusting for allowances and resulting in a site value of $6.95m (that was corrected at the commencement of the hearing to $7.1m) followed by the appellant’s valuation calculation applying a starting rate of $375/m² for the subject land, adjusting for allowances resulting in a valuation of $10.3m with the following additional comment:
  1. [18]
    “The issued valuation of $9,200,000 (̴ $281/m²) is considered appropriate in terms of immediate relativity and the application of the included sales evidence.”
  1. [19]
    Early on in the cross-examination of the respondent’s valuer, the Member indicated that an answer to a question was not responsive and noted that the question was not clearly answered. This is referred to in the reasons at [6]. Later the respondent’s valuer was being cross-examined on the proposition that a site that is terraced or tiered is not desirable in that form for bulky goods use, when the Member interrupted to point out that the witness had “gone on for quite a while, but you were asked a question and you haven’t answered it”. The Member then explained the importance of an expert witness being seen to be non-partisan and the following exchange occurred:

“It is very important to avoid the perception of having an argument with counsel, but you should simply answer the question and if counsel wishes to ask more questions, then they will.  And when there’s opportunity for other counsel to ask questions, then they can deal with any effects.  But from your point of view, it’s most important that you simply answer the question that you’re being asked?---I’m sorry, your Honour.  I’ll try to address the question.” 

This is referred to in the reasons at [7] as the Member’s second warning to the respondent’s valuer. 

  1. [20]
    Later the same day, when the respondent’s valuer was showing reluctance to respond to a proposition put to him that required him to make a presumption, the Member interrupted and noted that he had twice cautioned the valuer in the proceeding to avoid being argumentative and that, if he was not able to fulfil the role of a reliable and independent expert, his “usefulness will be at an end”. This is the third warning referred to at [8] of the reasons.
  1. [21]
    Early on in cross-examination, the appellant’s valuer gave a lengthy answer which the respondent’s counsel did not consider was responsive and he asked the appellant’s valuer to limit his answers. The Member then gave what is described at [9] of the reasons as the first warning to the appellant’s valuer, advising him of the importance of expert witnesses answering the questions they are asked and not becoming advocates for a particular cause. The appropriate explanation was given that advocacy distorts the usefulness of the expert’s evidence and “it can distort it to having no use for us at all”. It was not long before there was another exchange between the respondent’s counsel and the appellant’s valuer in which counsel asserted the appellant’s valuer was not answering the question, and the Member expressly stated that it was the second time that he was having to caution the witness and explained again the importance of an expert witness being seen to be independent. This second warning is referred to at [10] of the reasons. It took even less time, before the Member gave the third warning that is referred to at [11] of the reasons. Upon this warning being given, the respondent’s counsel did note, by way of being fair to the witness, that the witness was accepting the point that counsel had made earlier. (It is the common contention of both the appellant and the respondent on the appeal to this court that the criticism of the appellant’s valuer in the third warning was not warranted.)
  1. [22]
    The cross-examination of the appellant’s valuer was extensive and later there was a further exchange during which he was answering before the question was completed and then asked a question of the respondent’s counsel which resulted in the Member giving what is described at [12] of the reasons as the fourth warning.
  1. [23]
    After the oral evidence was completed, directions were made for the filing of written submissions. There were no oral submissions. Paragraph 38 of the respondent’s written submissions stated:

“Both valuers were cautioned by the Court more than once in relation to avoiding an argumentative approach when being questioned.  The Court should not exclude the evidence of either valuer on that basis.”

  1. [24]
    The Member made his findings in respect of the appellant’s valuer at [16]-[24] of the reasons:

“[16] In the case of [the appellant’s valuer], the Court warned him four times about the behaviour which he was exhibiting. There were several other instances of argumentative and unresponsive conduct by him which might have properly been the subject of similar warnings. The overall result is, however, sufficiently demonstrated by the four instances to which the Court has referred. The lack of response to clear admonitions indicated the futility of more of them. The witness appeared to be unwilling, or unable, to improve his behaviour.

[17] The Court can only conclude that [the appellant’s valuer] was argumentative and partisan. He did not qualify as an independent expert whose opinion the Court could place any reliance upon.

[18] It was even difficult for the Court to get a word in to admonish this witness, while he conducted what amounted to a vigorous debate with cross-examining counsel.

[19] Although the Court is not able to be much assisted by this unduly partisan witness, it will look to the material which is contained in his evidence in order to attempt to ascertain whether it contains anything of a factual nature which assists the Court.

[20] Although [the appellant’s valuer] values the land at $10,300,000, he has concluded in the joint report, that it is ‘appropriate’ the site be valued as the respondent has, at $9,200,000. The few words used in the joint report to explain this have already been quoted.

[21] This does not provide any acceptable basis for supporting a valuation of $9,200,000, which the [appellant] contends for.

[22] The $1,100,000 which has, in effect, been removed without a plausible explanation, is not a small amount. The words ‘immediate relativity’ are vague and they are not able to be accepted as a useful explanation. The result is that the [appellant’s] contended valuation of $9,200,000 is not justified by the report of the valuer who was called to give evidence in support of it. The Court could not correctly make a valuation determination of $9,200,000 on the basis of a valuation of $10,300,000, so it must not.     

[23] Although the evidence called from the valuer for the [appellant] has been mentioned first, the Court must consider the question of whether the [respondent] has proved its case. It is legitimate, in doing that, to ascertain whether anything in all of the evidence supports the appellant’s case. The unusual unhelpfulness of both valuers to the Court’s task, makes it appropriate to point out this aspect of the case at the outset.

[24] For the reasons which have been given, no opinion of the [appellant’s] valuer or fact referred to in arriving at a valuation of $10,300,000 is able to be relied upon to support either the [respondent’s] or the [appellant’s] case. Accordingly, it is unnecessary to analyse the sales selected by the [appellant’s] valuer and used by him in coming to his opinion.” (footnotes omitted

  1. [25]
    The Member then proceeded to analyse the evidence relating to the respondent’s valuer’s sales only. In the course of that analysis, the Member did refer to the appellant’s valuer’s comments in relation to those sales. In relation to sale 2 which was in common with the appellant’s valuer’s sale 5, the Member was critical of the appellant’s valuer’s adjustments to obtain a comparable site value, noting at [49]:

“Unfortunately for the Court, [the appellant’s valuer] made it impossible to regard him as an independent expert and therefore qualified to provide such an opinion.  The Court is deprived of a competing opinion to that provided to it by [the respondent’s valuer], with its accompanying credit issues.”

  1. [26]
    Ultimately at [61] of the reasons, the Member found that the respondent’s sales with the adjustments made by the respondent’s valuer “are acceptably comparable to the subject land and provide a valid and useful basis of comparison upon which to ascertain its value” and accepted “the validity of the valuation conclusion which [the respondent’s valuer] draws from them”. The Member allowed the appeal by the respondent and reduced the valuation to $7,100,000.

Should the Member have given notice of an intention to reject the appellant’s valuer’s evidence?

  1. [27]
    The main evidence on an appeal against the Valuer-General’s decision to disallow an objection is usually the valuation evidence of the competing valuers.
  1. [28]
    Theoretically, it is always open to the Member of the Land Court hearing a valuation appeal to reject the evidence of one of the valuers. Practically, as the competing valuers are experts, the appeal may be determined as a result of the preference by the Member of aspects of the evidence of one valuer over the other. In the normal course, that preference would be identified in the reasons by an analysis of the details of the evidence given by the valuers. Aspects of one valuer’s evidence that are not supported by other evidence which the Member accepts or inconsistencies within the valuer’s evidence or approach may justify expressing a preference against parts or all of that valuer’s evidence.
  1. [29]
    Although the Member warned both valuers during the hearing of the requirement for their evidence to be independent and they should answer the questions they were asked, rather than provide the information they preferred to give as a response, and flagged that partisan evidence might not be useful, I do not consider the warnings had got to the stage where the Member had given notice to the appellant that he was considering rejecting the appellant’s valuer’s evidence to the extent of not considering at all the evidence of comparable sales adduced by the appellant’s valuer. It does not follow from the fact that the respondent made a written submission that, despite the warnings given by the Member, neither valuer’s evidence should be excluded, that it was obvious, or should have been obvious, to the appellant that the bulk of the evidence that was adduced by the appellant was not going to be considered by the Member on its merits. Having regard to the nature of a valuation appeal and the manner in which the appeal to the Land Court was conducted, the Member was bound to give the parties an opportunity to make submissions on what consequences should flow from a finding that the appellant’s valuer was partisan, including whether that affected the weight that should be given to the appellant’s valuer’s evidence or whether the appellant’s valuer’s evidence should be rejected to the extent the Member ultimately did reject it. In the circumstances, procedural fairness to the appellant required the Member to give such notice.
  1. [30]
    It is convenient for parties after the hearing of evidence is concluded to make final submissions in writing and avoid the costs of an additional hearing for oral submissions. In this matter, such a hearing would have allowed the Member to explore the issues the Member had with the appellant’s valuer’s evidence and given the appellant an opportunity to address the issue of partisanship and whether the appellant’s valuer’s evidence should be rejected (or given little weight) for partisanship.
  1. [31]
    The appellant succeeds on this ground of appeal which is an error of law that he was denied procedural fairness by the rejection of the appellant’s valuer’s evidence without the Member giving prior notice of an intention to do so.

Did the Member provide adequate reasons for rejecting the appellant’s valuer’s evidence?

  1. [32]
    Although it may not be strictly necessary to consider the other grounds of appeal, I will deal with the adequacy of the Member’s reasons for rejecting the appellant’s valuer’s evidence and the related ground of whether there was an error on the part of the Member in rejecting, and failing to consider, the appellant’s valuer’s evidence on the basis he was an advocate and not an independent witness.
  1. [33]
    After the Member had given warnings to the respondent’s valuer and explained the importance for the valuer not to argue with counsel, but to answer the question that was asked, and the importance of being a reliable and independent expert, it must have been frustrating for the Member to listen to the appellant’s valuer’s evidence when he exhibited a similar lack of responsiveness and a tendency to argue with the cross-examining counsel. While the conduct of an expert in the course of giving evidence may be taken into account by the Member in deciding whether to accept all or part of the expert’s evidence, it would be usual for a finding of partisanship to be made by reference to the content of the evidence given by the expert that is not supported by other evidence or accepted principles of valuation or is not persuasive in comparison with the competing expert evidence. In setting out the four warnings in the reasons, the Member did not show, by reference to the content of the answers and other evidence, how any of the answers by the appellant’s valuer in the relevant exchanges exhibited partisanship. It appears it was primarily the appellant’s valuer’s lack of response to the warnings of the Member, but also the lack of explanation for reducing the site valuation from $10.3m to $9.2m, that resulted in the rejection of his evidence, rather than any conclusions drawn from a comparison of the detailed evidence given by both valuers. Again, having regard to the nature of a valuation appeal and that the bulk of the evidence in the appeal before the Land Court was adduced from the two valuers, a more reasoned basis for rejecting the appellant’s valuer’s evidence was required.
  1. [34]
    Failing to provide adequate reasons for rejecting the appellant’s valuer’s evidence is an error of law. It also assists in establishing the ground that an error was made by the Member by rejecting and failing to consider the appellant’s valuer’s evidence on the basis he was an advocate and not an independent witness. If there were justification to make a finding that the appellant’s valuer was partisan, that did not preclude consideration of his evidence, but was a matter for the weight to be given to the evidence on any particular topic: Australian Securities and Investments Commission v Rich [2005] NSWSC 149 at [334].  
  1. [35]
    The appellant would therefore also succeed on the grounds that relate to the failure of the Member to provide adequate reasons for rejecting the appellant’s valuer’s evidence and the error that was made, as a result, in rejecting the appellant’s valuer’s evidence on the basis that he was an advocate and not an independent witness, without giving consideration to what degree that affected the weight to be given to his evidence on any particular topic.
  1. [36]
    The issue of costs of an appeal to this Court under the Act is governed by s 171 of the Act, as if the reference to the Land Court were a reference to the Land Appeal Court: see s 172(3) of the Act. The usual position would therefore be that each party must bear its own costs of the appeal. Without encouraging either party to seek a costs order, but recognising there is limited power to make a costs order in any of the circumstances that may apply under s  171(2) of the Act, it is appropriate to set a time period for any submissions for an order for costs.

Orders

  1. [37]
    It follows the orders should be:
  1. Appeal allowed.
  1. The orders made by the Land Court on 31 May 2018 in proceeding LVA093-17 are set aside.
  1. Remit proceeding LVA093-17 for hearing by the Land Court before a different Member.
  1. Any submissions seeking a costs order in respect of the appeal must be filed and served within 14 days of the publication of these reasons.
  1. [38]
    PRESIDENT KINGHAM: I agree with the reasons of Justice Mullins and the orders proposed. However, and although it does not affect the outcome of this appeal, I wish to make some additional observations about an unusual feature of this appeal.
  1. [39]
    The appeal was against an objections decision made about an annual valuation. The Valuer-General issued a maintenance valuation with the same effective date as the annual valuation. For reasons given by Mullins J, the Court had jurisdiction to hear the appeal although its utility was in question.
  1. [40]
    The annual valuation is subject to the maintenance valuation for the annual valuation,[1] a matter of concern to the learned Member who raised this at the beginning of the appeal hearing. The parties persuaded his Honour to continue with the hearing. They informed him they had a commercial arrangement by which the Valuer-General undertook to give effect to the Land Court’s decision in dealing with the maintenance valuation.[2]  The terms of the agreement were not in evidence and the parties’ conflicting positions on whether the appeal should be allowed suggest they did not have a common understanding about how the undertaking would work in practice.
  1. [41]
    Counsel for Eastcote submitted the Valuer-General had conceded the original valuation of $7.4m was incorrect by issuing a maintenance valuation for $9.2m. Because of that, Eastcote did not need to discharge any onus of proof. Counsel submitted the appeal should be allowed as the only issue was the correct value of the land. Eastcote relied on expert evidence in support of a valuation of $7.1m. The Valuer-General relied on expert evidence in support of a valuation of $9.2m. The Valuer-General would apply the Land Court’s decision on this appeal to the maintenance valuation.[3]
  1. [42]
    Counsel for the Valuer-General did not concede the appeal should be allowed. He did not agree the only issue was the correct valuation. He argued it was possible the Court would not accept the valuation evidence led by either party. In that case, he said, the appropriate order would be to dismiss the appeal. The result would be that the “issued” valuation, by which it seems counsel meant the annual valuation, would be confirmed.[4]
  1. [43]
    That is not so. The effect of an order dismissing the appeal would have been that the maintenance valuation of $9.2m would apply, despite the learned Member having rejected the only evidence that supported that value.
  1. [44]
    Three of the Valuer-General’s grounds of appeal to this Court (grounds 7 – 9) allege the learned Member erred by not finding that Eastcote had failed to discharge its onus of proof. If it succeeded on any of those grounds, the Valuer-General again submitted the proper order was to dismiss the appeal. During the hearing, senior counsel for the Valuer-General conceded it would be anomalous to make that order in those circumstances, given its effect. Nevertheless, it was not until the end of the hearing that the Valuer-General abandoned any argument about the onus of proof.
  1. [45]
    Ultimately, this appeal has not turned on the parties’ commercial agreement or the Valuer-General’s stance in the appeal given the maintenance valuation. However, it did lengthen the appeal proceedings. The parties presented the learned Member with conflicting positions as to the effect of the agreement and maintenance valuation on the appeal. His Honour had good cause to be concerned about the utility of the appeal. The agreement between the parties was vague and did not sit comfortably with the statutory framework for land valuations. The Court should be wary of proceeding in such circumstances where the utility of the appeal is in question.
  1. [46]
    MEMBER STILGOE: I have had the advantage of reading the reasons prepared by Mullins J and Kingham P and, respectfully, agree with the reasons and the orders proposed.

MULLINS J

FY KINGHAM

PRESIDENT OF THE LAND COURT

PG STILGOE OAM

MEMBER OF THE LAND COURT

Footnotes

[1] Land Valuation Act 2010 s 75(3)(1).

[2]  T 1-8, lines 38 to 42.

[3]  T 1-11, line 5 to 1-12 line 20.

[4]  T 1-13, lines 18-45.

Close

Editorial Notes

  • Published Case Name:

    Valuer-General v Eastcote Pty Ltd as Tte

  • Shortened Case Name:

    Valuer-General v Eastcote Pty Ltd

  • MNC:

    [2019] QLAC 3

  • Court:

    QLAC

  • Judge(s):

    Mullins J, Kingham P, Member Stilgoe

  • Date:

    19 Jul 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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