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GPT RE Limited v Valuer-General[2015] QLC 14

GPT RE Limited v Valuer-General[2015] QLC 14

 

LAND COURT OF QUEENSLAND

 

CITATION:

GPT RE Limited v Valuer-General [2015] QLC 14

PARTIES:

GPT RE Limited ACN 107 426 504 as responsible entity under instruments 704481554 and 709013845

(appellant)

 

v

 

Valuer-General

(respondent)

FILE NO:

LVA106-14

DIVISION:

General Division

PROCEEDING:

Hearing of preliminary application

DELIVERED ON:

13 May 2015

DELIVERED AT:

Brisbane 

HEARD ON:

10 October 2014

HEARD AT:

Brisbane

MEMBER:

PA Smith

ORDERS:

1. It is declared that, specifically as regards the LVA, GPT is bound by the fact that the statutory valuation of the subject land as at 1 October 2010 was $87,000,000 as determined by the Court.

2. Save as set out in order 1 hereof, the application is dismissed.

3. Any party seeking any orders as to costs is to file and serve their submissions by 3 June 2015.

4. Submissions in response to any submissions seeking orders as to costs are to be filed and served by 24 June 2015.

5. Any reply to the response submissions is to be filed and served by 4.00pm on 1 July 2015.

CATCHWORDS:

Evidence – Issue Estoppel – Res judicata distinguished – issue must be identified with precision and certainty – consent order not indicative of issues or grounds of appeal determined – issue estoppel found not to arise

Statutory Valuations – annual valuation – site value – Land Court determinations weight may be greater in contested cases-consent order – appeal – earlier statutory valuation does not dictate market re subsequent valuation of same property – statutory exercise-Spencer test –  hypothetical sale-bona fide sale-comparable sale

Land Valuation Act 2010, ss 17, 18

Brewer v Brewer (1953) 88 CLR 1

Bignell v Chief Executive, Department of Lands V92-65(2) Unreported, Land Appeal Court, 4 March 1996

Blair v Curran (1939) 62 CLR 464

Duncombe & Anor v Valuer-General [2015] QLC 4

Port of Melbourne Authority v Anshun Pty Ltd (1981) 146 CLR 589

GE Mortgage Solutions Ltd v Whild [2013] VSC 503

Morris v Valuer-General [2011] QLC 78

Spencer v The Commonwealth (1907) 5 CLR 418

Turner v London Transport Executive [1977] ICR 952

APPEARANCES:

Mr RN Traves QC and Mr Lonergan of Counsel for the appellant

Mr SP Fynes-Clinton for the respondent

SOLICITORS:

Clayton Utz for the appellant

In-house Legal, Department of Natural Resources and Mines for the respondent

The Application

  1. [1]
    The respondent, the Valuer-General (VG) made a general application to the Court on 7 August 2014 by which he sought that certain preliminary orders be made.
  2. [2]
    The orders sought by the VG are as follows:

“(1) An order or determination that the only evidence which is admissible as relevant to the issues in dispute in this appeal is evidence of:

  1. (a)
    sales asserted to be comparable sales which were not identified in the grounds of appeal in LVA197-12, and where the date of sale is otherwise after 1 October 2010; and
  1. (b)
    other facts relevant to the valuation of the subject land which first occurred or first existed after 1 October 2010,

being matters which tend to prove or disprove the assertion that the site value of the subject land decreased from $87,000,000 on 1 October 2010 to $68,900,000 on 1 October 2012.

  1. (2)
    An order or determination that the Appellant is estopped by the judgement of the Land Court given on 19 November 2012 from putting into contest in this appeal any matter of fact (including a fact asserted on the basis of expert opinion) other than a matter put into contest by evidence referred to in paragraph (1) above.
  1. (3)
    The costs of and incidental to this application be reserved.
  1. (4)
    Such Orders this Honourable Court deems fit.”
  1. [3]
    It should be noted that order 2 as sought by the VG previously included a claim of estoppel under the Anshun principle,[1] but this aspect was amended out of the application during oral submissions.[2]
  2. [4]
    The VG’s application is opposed by the appellant, GPT RE Limited ACN 107 426 504 as responsible entity under instruments 704481554 and 709013845 (GPT).

Background

  1. [5]
    On 16 April 2014 GPT filed a notice of appeal in the Land Court by which it appealed against the VG’s valuation of GPT’s land situated at 123 Eagle Street, Brisbane (the subject land) as at 1 October 2012. The VG’s valuation of the land as at that date is $87,000,000 and GPT contends for a valuation of $68,900,000.
  2. [6]
    Significantly for the purposes of the VG’s application, GPT had earlier lodged an appeal with this Court against the VG’s valuation of the subject land as at 1 October 2010. The appeal, which was numbered LVA197-12, was filed on 1 May 2012.
  3. [7]
    As regards the 2010 valuation, the VG’s valuation was $106,000,000, and GPT contended for a valuation of $73,330,000.[3]
  4. [8]
    Both the 2010 and 2013 valuations were made by the VG pursuant to the provisions of the Land Valuation Act 2010 (the LVA).
  5. [9]
    GPT’s appeal against the 2010 valuation was concluded by orders of the Court made on 19 November 2012 which were in the following terms:[4]

“The Court ORDERED by consent of the parties that:

  1. The appeal is allowed.
  1. The site value of Lot q123 on Plan SP 208982, Parish of North Brisbane, Property ID 4096821 (123 Eagle Street, Brisbane CBD) is determined in the amount of Eighty Seven Million Dollars ($87,000,000) as at 1 October 2010.
  1. Each party to bear their own costs of and incidental to the appeal.”

The hearing of the application

  1. [10]
    The VG’s application was heard by the Court on 10 October 2014. The core underlying facts were set out in the affidavit of Mr Prasad of 1 August 2014 and Mr Castley of 15 August 2014 and were not in dispute. No oral evidence was relied upon by either party on the hearing of the application.
  2. [11]
    The VG was represented by Mr Fynes-Clinton of Counsel, instructed by In-house Legal, Department of Natural Resources and Mines.
  3. [12]
    GPT was represented by Mr Traves QC and Mr Lonergan of Counsel, instructed by Clayton Utz, solicitors.
  4. [13]
    Both parties relied on written and oral submissions.

The contentions of the VG

  1. [14]
    As part of his oral submissions, Mr Fynes-Clinton summarised the argument of the VG as follows:[5]

“Your Honour, the contention of the Valuer‑General rests upon five simple propositions and these can all be distilled from the written submissions but I'm going to summarise them. Firstly, as between these parties, that is, the parties before the court, and in respect of the subject land obviously, the court's decision of 19 November 2012 in the previous appeal we say finally and incontrovertibly decided that the site value of the subject land as at 1 October 2010 was 87 million dollars and that it can only have done so as a decision correctly valuing the land as at that date in accordance with the Land Valuation Act because the court had no jurisdiction to make the order it made on any other basis. That's the first proposition. 

The second proposition is this:  that that determination by its inherent nature as a correct determination of value under section 170 of the Act was one that the value of 87 million dollars met the bona fide sales test in the Act and reflected all matters relevant to the proper valuation of the subject land which were known or would have been known to a prudent Spencer purchaser and vendor as at that date because otherwise the court's decision would not have been a correct determination of value.

The third proposition is this:  to reach a different conclusion as at 1 October 2012 ‑ and there's no contest obviously that a different conclusion can be reached in the current appeal ‑ the matters which were known or would have been known to prudent Spencer parties as at the current valuation date must be different matters to those which were known as at 1 October 2010 and must, therefore, be things known to those parties at a later date after 1 October 2010 and up to and on 1 October 2012 which change or modify what was known to the prudent parties on 1 October 2012. 

The fourth proposition is that those things reflecting different knowledge on the part of the prudent parties as at the current valuation date must as a matter of logic and law, we say, be matters which have emerged from market evidence or new facts relevant to the quality or utility of the subject land which occurred or emerged after 1 October 2010. 

The fifth and final proposition is this:  unless the appellant is permitted to directly or collaterally challenge the correctness of the earlier judgment, the evidence it calls in this appeal must be limited to matters which reflect the fourth proposition, that is, matters which have emerged or changed between the two valuation dates so as to give the prudent parties a different view on the price at which they would exchange on the subject date, 1 October 2012, as compared to the date of effect of the court's previous determination, 1 October 2010. 

As a corollary to that, it is not ‑ but to be clear, it's not the Valuer‑General's submission that features of the land which physically existed before 1 October 2010 ‑ and if your Honour has seen the grounds of appeal, there's reference to easements and to the question of influence of size in terms of comparable sales ‑ it's not a part of the Valuer‑General's submission that those things may not be viewed differently by the market as at 1 October 2012 despite the fact they existed for many years in the past. 

The proposition is that unless those things themselves, features of the land, the impact of easements, the impact of size, unless those things themselves have changed in terms of how the market perceives them between the two relevant dates, the opinion of a valuer or anybody else that those things themselves explain the change in value is not admissible.  It's not evidence. What is required is facts emerging or occurring between the two dates which enable the court to say that those particular features, albeit that they existed at an earlier point in time, differently influence the market on the subject date of valuation. 

In similar terms, your Honour, the Valuer‑General propounds this proposition:  that at least in a contest where, as the appellant asserts in its grounds of appeal, the site value for 2012 should be determined by reference to a range of sales spanning May 2010 to July 2013, the Valuer‑General is entitled in its response to that case to rely upon a fact as one of the matrix of facts which will determine the present outcome, not as something that is in itself decisive or determinative, but the Valuer‑General is entitled to rely in this appeal upon a matter of fact, namely, that the site value on 1 October 2010 was 87 million dollars. And it follows, of course, in the Valuer‑General's submissions, which I'm about to develop, that we say the appellant cannot controvert that fact because it has already been decided by this court in litigation between the same parties affecting the same land.”

The Contentions of GPT

  1. [15]
    Both parties relied on written and oral submissions.Mr Traves QC put the position of GPT clearly during his oral submissions when he had this to say:[6]

“Can I, your Honour, pick up that last point as demonstrating the courageous submission that's made against us today.  The proposition is that there is an estoppel as between these parties in respect of the 2010 figure as applied to the 2012 figure, and we've asked ‑ we've put rhetorically in the outline what if the ownership of the land changes between 2010 and 2012? 

On the Valuer‑General's submission the estoppel no longer applies, and the consequence of that is that the same parcel of land has two different values potentially depending upon the ownership and that obviously can't be right.  In other words, a person who ‑ person A who owns the land in 2010, who now seeks to challenge the 2012 valuation, is constrained by what's put against him as to how he can run his case under the Land Valuation Act, whereas the person he sells to is not. 

Now, plainly that's wrong, and it's wrong because what the Valuer‑General has to do and the court standing in the Valuer‑General's shoes is to value in accordance with the Act and section 17 and section 18, when they refer to a bona fide sale, do not permit the constraint to the court of the Valuer‑General according to a previous decision.  They do not permit the constraint.  In other words, the test in broad terms ‑ it's important to recognise the test is a statutory one, the extent to which Spencer, for example, remains relevant to the exercise, what one suspects it is, but nonetheless it's a statutory test. 

There's nothing in the statutory test which permits this exercise, which permits this estoppel.  Each year the Valuer‑General is charged with the responsibility of reaching a valuation for that year and a finding for that year, that is the Valuer‑General's determination, if not challenged, is the value for that year, and a court determination, whether by consent order or by contested hearing, results in a valuation for the purposes of the Act for that year, and that's all.  What our learned friends seek to do is to go one step further.  Not only is that a determination for the 2010 year here, but you are bound to accept that as correct in the assessment of the 2012 year.  Now, that is a step which they're not permitted to take. 

We don't contend ‑ it's not an issue in this case what the 2010 valuation was for the purpose of the Act for that year.  We don't seek to challenge that, but it applies to that year, and the courts have ‑ this court has traditionally regarded previous decisions of the court as being ones which are of more or less weight, depending upon the manner in which they were reached and their relevance so that one would expect, in respect of the ‑ of a previous decision of the subject land that it would be of greater relevance if it were to result from a contested hearing, then an uncontested hearing, hence picking up your Honour's point about what about consent orders, and your Honour rightly points out that a consent order will frequently be the product of many different considerations other than what the parties actually believe to be the value of the land, the cost of running an appeal, prospects, all sorts of things,  the ability of a party to pay for the appeal.  All may affect a figure which is the subject of a consent order ultimately, and the parties are bound by that figure for the purpose of that particular valuation year, but what our learned friends haven't done in their submission is even attempt to rationalise their proposition against the statutory requirements of a bone fide sale. 

In broad terms, and I want to go to this in more detail, but in broad terms when the hypothetical buyer and seller, which the Act identifies, are considered as to what figure they would pay in an arm's length sale for the site value for the land, there's nothing in the statute which permits or compels, more accurately put, compels that hypothetical ‑ those hypothetical parties to take into account a consent order of the court from two years previously.  Indeed, it's almost an absurdity to think they would. 

So that our learned friends seek to set up an estoppel, which in our submission can't withstand the statute.  Indeed, it does seek to constrain the statutory exercise in an impermissible way.  Could I just touch upon some of the matters raised towards the end.  It's put against us ‑ it's said well, take Buckler, Rock Gold and Nimmo, and it's put that if the current appeal, the 2010 appeal and the 2012 appeals, were heard together how would the court have approached the 2012 value? 

Now, we don't take issue with the way the court in each of those cases approached the issue, but bear this in mind:  the evidence was heard together and in each case the evidence before ‑ in our circumstances the 2010 appeal ‑ would have been held relevant to the two thousand in our case 12 appeal, such that in fact, quite contrary to what our learned friends say, pre‑2010 evidence was in the conduct of those appeals relevant to the 2012 appeal.  So one can't take anything from the examples.  If these appeals were heard together we would hear evidence about the sales which occurred before 2010 and the sales which occurred after, and the court would reach a conclusion on all of that evidence.  There's nothing controversial in that. 

Secondly, it was said hypothesise an unhappy landowner, multiple appeals, flooding does not ‑ a determination that the flooding does not diminish the value of the land.  Is it really the proper construction of the Act that he may continue to argue the point?  Well, the truth is yes, it is, but your Honour's point as to costs is a good one.  At some point the court would say, "This is a vexatious or a plainly unsustainable appeal, you can bear costs."  Now, we don't contend, and this is the third point I wish to make ‑ there's a fundamental misconception of our learned friend as to the position we adopt in this case.  Could I take you to our submissions at paragraph 45.

Our learned friend repeatedly said that our position is that the previous decision can have no relevance.  Can I make this entirely clear:  our position is not that the previous decision can have no relevance.  The previous decision may have relevance, it may not have relevance, depending upon the evidence, and we've cited a case there as to how the court treats previous decisions, albeit that case didn't relate to the subject land, but the same principle applies.

So that depending upon the nature of the determination it may or may not be relevant.  Now, in this particular case, because a determination was a consent order early in the proceedings without a contested hearing, one would expect it to be of very limited relevance, but that's not to say it's not of relevance.  It may be or it may not be.  What it doesn't do is somehow hogtie the parties which ‑ in a way which says because there's a consent order in 2010 in regards to the 2010 appeal, you cannot call any evidence except evidence which follows from 2010, and even then only in such a way as it doesn't challenge the 2010 figure.  Now, that ‑ that's an extraordinary proposition for which there is no authority.”

Analysis

  1. [16]
    Although there is little in common between the respective positions of the VG and GPT, some aspects of the statutory obligations placed upon the VG under the LVA are clear and relatively uncontentious. Section 72 of the LVA requires the VG to make an annual valuation of all land in a Local Government Area. For the purposes of the current appeal, the date fixed for the making of the annual valuation was 1 October 2012. The value of the subject land in the current case is its “site value” for the purposes of the LVA.
  2. [17]
    Relevantly, s 17 of the LVA explains what the lands expected realisation means, while s 18 goes on to explain the meaning of a “bona fide sale”. As I pointed out in Duncombe & Anor v Valuer-General,[7] s 18 of the LVA has, in essence, codified the Spencer test.[8]
  3. [18]
    Pursuant to s 170(b) of the LVA, the Land Court, in exercising its jurisdiction on an appeal, has a duty to correctly make the valuation under the LVA. In simple terms, this means that it is the obligation of the Land Court to carry out the same statutory exercise as the VG did in making the original valuation.
  4. [19]
    Counsel for GPT in their submissions[9] assert that the appeal currently before the Court relates to a new, different question than that determined in the 2010 appeal. As they correctly point out, in my view, the 2010 appeal relates to the question as to the site value of the subject land as at 1 October 2010. GPT then makes the point that not only is the ultimate question in the current appeal a different question to the 2010 appeal, but that many of the issues which are relevant for determining that ultimate question are also different. I will deal with the question of the relevant issues decided by the 2010 appeal later in these reasons, but it is appropriate at this point to consider specifically the determination of the Court with respect to the 1 October 2010 appeal.
  5. [20]
    In paragraph 10(a) of his reply, the VG points out that the orders sought by the VG in this application seek “to hold both parties to the determination of site value (a fact) which the Court made in that appeal”. That is certainly a correct statement as to part of the relief sought by the VG in this application and, to a limited extent, I agree with this aspect of the VG’s submissions.
  6. [21]
    In my view, there can be no doubt that, as a question of fact, a determination was made by this Court on 19 November 2012 which determined the site value of the subject land as at 1 October 2010 in the amount of $87,000,000. That determination is clearly made pursuant to the provisions of the LVA and is a site valuation as at a specific date for a specific parcel of land in accordance with the LVA. Nothing more, nothing less.
  7. [22]
    Specifically as regards the LVA, GPT is bound by the fact that the statutory valuation of the subject land as at 1 October 2010 was $87,000,000 as determined by the Court. However, what the statutory valuation at an earlier point in time does not do in my view is dictate how the market will approach the question of a subsequent valuation of the same property at a later point in time. In simple terms, that will be an exercise involving expert evidence and require the taking into account of the Spencer test and relevant statutory factors to be considered pursuant to the LVA.
  8. [23]
    It will be a matter for the Court when considering a subsequent appeal, or an appeal later in time, to determine what weight should be afforded a Court’s determination as to the value of land under the LVA at a particular earlier date. In my view, this principle applies whether or not consideration is being given to the valuation of an entirely different property owned by different parties, or to the same property owned by the same parties. My conclusions in this regard are consistent with the decision of the Land Appeal Court (Justice Fryberg and Members Neate and Wall) in the case of Bignell v Chief Executive, Department of Lands (2).[10] In that matter, the Land Appeal Court had this to say with respect to the weight to be given to previous decisions of both the Land Court and the Land Appeal Court concerning valuations:[11]

“Neither party referred to any authorities concerning the weight to be given to previous decisions of the Land Court or the Land Appeal Court concerning valuations. Since hearing the arguments of counsel we have considered some decisions on the matter by the Land Court and the Land Appeal Court. As the Land Appeal Court succinctly stated in 1966, Land Court determinations, even in uncontested cases, are admissible, ‘but the weight to be given them will vary in different cases and obviously is not the same as the weight given to determinations in contested cases’.

…

The judgments of the Land Court and the Land Appeal Court in those cases indicate that there was no true joining of issue on valuation between the parties. We accept that the decisions properly disposed of each appeal in accordance with law. However the process by which they were reached means that they have relatively little weight when compared with valuations based on sales evidence from the relevant time.” [footnotes omitted]

  1. [24]
    I now turn to consider the vexed question as to the issues determined in the 2010 appeal, and the question of issue estoppel.
  2. [25]
    The Land Court considered the question of issue estoppel in the case of Morris v Valuer-General.[12] Morris concerned an appeal against an annual valuation in circumstances where the same appellant had made previous appeals to the Court with respect to the same land and there had been determinations as to value made by the Land Court with respect to that land, including specific findings of fact.
  3. [26]
    Member Cochrane had this to say in Morris:[13]

“[79] I accept the proposition advanced by the respondent however that the appellant is not entitled to ask me to make findings of fact about matters existing or occurring on or before 1 October 2007 which are inconsistent with the specific findings of fact made in the 2006/07 appeals because of the issue estoppel which arises in respect of any such findings of fact.

[80] In that regard I note the reference by the respondent to the relatively recent decision in Castilion v P & O Ports Limited and the reference in that decision to Blair v Curran.” [footnotes omitted]

  1. [27]
    Given the centrality of the question of issue estoppel to the determination of the application at hand, in my view it is necessary in this case to refer in detail to the oft quoted principles espoused by Justice Dixon in the case of Blair v Curran.[14] Most relevantly, Dixon J had this to say:[15]

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any of which would be enough to defeat the claim the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

In the phraseology of Lord Shaw, ‘a fact fundamental to the decision arrived at’ in the former proceedings and ‘the legal quality of the fact” must be taken as finally and conclusively established (Hoystead v. Commissioner of Taxation). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.

The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order.” [footnotes omitted]

  1. [28]
    Blair was considered by the High Court in Brewer v Brewer,[16] where Fullagar J stated:[17]

“Issue-estoppel applies only as to issues. There is no estoppel as to evidentiary facts found in the course of determining the affirmative or negative of an issue. There is nothing to prevent a party from tendering in a later proceeding in relation to a particular issue facts negatived in an earlier proceeding when they were tendered in relation to a different issue. In Blair v. Curran; Dixon J. said:˗ ‘In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action. . . . Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion’.” [footnotes omitted]

  1. [29]
    The principles were well summarised by the recent decision of GE Mortgage Solutions Ltd v Whild,[18] where Derham AsJ had this to say:[19]

“In order to establish the plea of issue estoppel, GEMSL must prove the following:

  1. (a)
    that the parties in the previous litigation were the same as the parties in the present litigation:  Co-ownership Land Development Pty Ltd v Queensland Estate Pty Ltd;
  1. (b)
    that the particular issue of act and/or law which it is sought to be litigated in this proceeding has already been litigated and decided in the first proceedings. It is essential to establish that the issue or issues decided are identical. It is essential that the actual issue decided in the first proceeding ‘be ascertained with some degree of precision’, per Land LJ in Turner v London Transport;
  1. (c)
    that the court or tribunal in the first proceeding actually decided the fact or point of law which was directly in issue in the case and was a ground of the judgment. The determination must be necessary to the decision and fundamental to it:  see Blair v Curran.” [footnotes omitted]
  1. [30]
    The question must now be asked: what were the actual issues necessarily decided in the first proceeding?
  2. [31]
    To help answer this question, the VG has provided a comparison table between the 2010 grounds of appeal and the 2012 grounds which is as follows:[20]

“

2010

2012

Ground 1 – 6 comparable sales identified

 

4 sales are common with 2012 (Treasury Row, Visio, 127 Charlotte Street and 105 Mary Street).

 

2 sales are not relied on in 2012 (Alice and Albert Sts and 99 Mary Street, both sales in 2009)

Ground 1 – 7 comparable sales identified.

 

4 sales are common with 2010 (Treasury Row, 127 Charlotte Street and 105 Mary Street).

 

3 sales are new (272 George Street, 111 Margaret Street and 103 Mary Street)

Ground 2 – easements, flooding and City Plan

Ground 2 – same issues; materially identical working (only difference ‘subject property’ replaced with ‘land’).

Ground 3 – conformity with LVA and ‘uniformity’

Ground 3 – First 2 paragraphs materially identical; no separate ground about preserving ‘uniformity’

Ground 4 – relative level of assessment

Ground 4 – similar wording but reflects current valuation contentions and omits some repetitive grounds

Ground 5 – discount for size

Ground 5 – materially identical wording

Ground 6 – scarcity of purchasers

Ground 6 – materially identical wording (except that $87,000,000 is substituted for $100,000,000)

(no ground 7 in 2010)

Ground 7 – general assertions that VG valuation erroneous; no additional assertions of fact.

”

  1. [32]
    The Valuer-General then went on to submit, at paragraphs 25 and 26 of his submissions, that there is no legally significant difference in his view between grounds 2, 3 and 5 in the 2010 and 2012 appeals, and that grounds 4, 6 and 7 are not the focus of the current application.
  2. [33]
    The VG’s submissions then go on to state as follows:[21]

“34. Moreover, the Court-determined value of $87 million as at 1 October 2010 is to be taken to have been made cognisant of the assertions now raised in grounds 2, 3 and 5 of the current appeal, and to have reflected a proper resolution of those (same) issues in the 2010 appeal, as they affected the site value on that date.

35. The Appellant, in seeking to have the Court make determinations about what is revealed by market evidence spanning May 2010 to March 2013 must do so without seeking to revisit and to re-argue matters of fact indispensable to the drawing of correct inferences from that evidence, and already judicially determined. Having planted it evidentiary flag prior to 1 October 2010, and seeking to persuade the Court that an examination of sales over a period which spans that date its current assertion for 2012 value, it cannot do so in a way which challenges the correctness of the Court’s judgement in the 2010 appeal which identifies the actual market (site) value of the subject site at a point in time during that period. It cannot be selective about the evidence which is made relevant in this appeal by its own choice of time span for the evidence of value on which it now relies.”

  1. [34]
    In his reply submissions, the VG, having considered GTP’s approach to the identification of issues, went on to strongly submit as follows:[22]

“… Taken to its logical end, such an approach would construe the LVA as following a disgruntled appellant, convinced of the righteousness of its cause about a particular valuation issue which it says has led the VG into error, to litigate in this Court the same substantive question every year, based on facts or events which were in existence in previous years, for an endless number of years. Costs would not be a disincentive to such conduct because, on the Appellant’s theses, each year raises a new question to which previous findings of fact (about things which happened in and prior to the earlier years) and consequent previous findings about value as the ultimate fact, are irrelevant to the question raised for the current year (so no argument could be made that such repetitive proceedings are frivolous or vexatious, or otherwise enliven a relevant costs power under LVA s 171).”

  1. [35]
    The submissions made by GPT as to the actual issues decided in the first appeal are succinct. In short, relying upon the passage quoted earlier in these reasons from Derham AsJ in GE Mortgage Solutions Ltd, where he adopted Turner v London Transport Executive,[23] to the affect that it is essential that the issue be ascertained with some degree of precision, GPT submissions then go on to assert that the VG’s submissions and application do not identify with any degree of precision or certainty the issues said to be determined in the 2010 appeal and now subject to an issue estoppel.
  2. [36]
    GPT also asserts that the grounds of appeal are not in the nature of indispensable or ultimate facts of the nature considered by Dixon J in Blair v Curran.
  3. [37]
    I am satisfied, taking into account the comments of the Land Appeal Court in Bignell, that the fact that the 2010 appeal was determined by way of a consent order necessarily causes problems to the VG in identification of the issues necessarily determined in deciding that appeal. Moreover, the circumstances behind the determination by consent of the 2010 appeal must also, in my view, be taken into account.
  4. [38]
    The VG’s submissions may have some force if it could be shown that all of the contentions raised by GPT in the 2010 appeal had been accepted by all of the parties, and, indeed, the Court, in making the determination of the 2010 appeal. But this is clearly not the case. GPT had contended by its notice of appeal for a valuation of $73,330,000 as at 1 October 2010. It was clearly unsuccessful in this regard in the consent determination made by the Court. Thus, it cannot be said that its contentions were successful. To a greater or lesser degree, some or all of GPT’s contentions must have been not accepted in order for the consent determination to be made at the value of $87,000,000. Being a determination made by consent, this Court has absolutely no way of knowing what essential issues were determined, let alone putting some degree of precision to those issues. Indeed taking into account their own reasons or issues, GPT may have agreed to the consent determination on one basis, while the VG, acting on its own reasons or understanding of the issues, may have agreed to that same consent determination for entirely different reasons (or in other words, understanding the issues in an entirely different way).
  5. [39]
    In the circumstances, I agree with the submissions of GPT that the VG has failed to identify with any precision the issues which were decided by the 2010 appeal which cause an issue estoppel to arise with respect to those same issues in the 2012 appeal. Save for my finding as to the nature of the determination of the Land Court made in the first appeal on 19 November 2012, the application must be dismissed.

Costs

  1. [40]
    Counsel for GPT has requested that the parties have time to consider these reasons prior to making any submissions as to costs. I agree.
  2. [41]
    Any party seeking any orders as to costs in this matter is to file and serve their submissions within 21 days of the delivery of this decision. Any submissions by a party in response are to be filed within 21 days of the date of making of any submissions, with any reply by any party seeking orders as to costs to be made within seven days thereafter.

Orders

  1. It is declared that, specifically as regards the LVA, GPT is bound by the fact that the statutory valuation of the subject land as at 1 October 2010 was $87,000,000 as determined by the Court.
  1. Save as set out in order 1 hereof, the application is dismissed.
  1. Any party seeking any orders as to costs is to file and serve their submissions by 3 June 2015.
  1. Submissions in response to any submissions seeking orders as to costs are to be filed and served by 24 June 2015.
  1. Any reply to the response submissions is to be filed and served by 4.00pm on 1 July 2015.

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

[2]  T 1-3 line 240 – 1-4 line 9.

[3]  Affidavit of P Prasad, 1 August 2014, Ex PSP-015; Affidavit of M Castley, 15 August 2014, Ex MPC3.

[4]  Affidavit of P Prasad, 1 August 2014, Ex PSP-014; Affidavit of M Castley, 15 August 2014, Ex MPC8.

[5]  T 1-5 line 10 – 1-6 line 28. Note corrections made to the transcript at T 1-6 line 21.

[6]  T 1-36 L 1-38 L 9.

[7]  [2015] QLC 4 at [14].

[8] Spencer v The Commonwealth (1907) 5 CLR 418.

[9]  At paragraph 13.

[10]  Unreported, Land Appeal Court, 4 March 1996 (V 92-65).

[11]  Ibid.

[12]  [2011] QLC 78.

[13]  Ibid [79]-[80].

[14]  (1939) 62 CLR 464.

[15]  Ibid 531-533.

[16]  (1953) 88 CLR 1.

[17]  Ibid 15-16.

[18]  [2013] VSC 503.

[19]  Ibid [49].

[20]  Submissions of VG paragraph 24.

[21]  VG’s submissions, paragraphs 34 and 35.

[22]  Reply submissions of VG paragraph 36.

[23]  [1977] ICR 952 at 966 per Geoffrey Lane LJ.

Close

Editorial Notes

  • Published Case Name:

    GPT RE Limited v Valuer-General

  • Shortened Case Name:

    GPT RE Limited v Valuer-General

  • MNC:

    [2015] QLC 14

  • Court:

    QLC

  • Judge(s):

    Member Smith

  • Date:

    13 May 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Blair v Curran (1939) 62 C.L.R., 464
3 citations
Jump To
Cite 1 - (1939) 62 C.L.R., 464
Cite 2 - (1939) 62 C.L.R., 464
Cite 3 - (1939) 62 C.L.R., 464
Brewer v Brewer (1953) 88 C.L.R., 1
3 citations
Jump To
Cite 1 - (1953) 88 C.L.R., 1
Cite 2 - (1953) 88 C.L.R., 1
Cite 3 - (1953) 88 C.L.R., 1
Duncombe v Valuer-General [2015] QLC 4
2 citations
Jump To
Cite 1 - [2015] QLC 4
Cite 2 - [2015] QLC 4
GE Mortgage Solutions Ltd v Whild [2013] VSC 503
3 citations
Jump To
Cite 1 - [2013] VSC 503
Cite 2 - [2013] VSC 503
Cite 3 - [2013] VSC 503
Morris v Valuer-General [2011] QLC 78
3 citations
Jump To
Cite 1 - [2011] QLC 78
Cite 2 - [2011] QLC 78
Cite 3 - [2011] QLC 78
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
1 citation
Jump To
Cite 1 - (1981) 147 CLR 589
Port of Melbourne Authority v Anshun Pty Ltd (1981) 146 CLR 589
1 citation
Jump To
Cite 1 - (1981) 146 CLR 589
Spencer v The Commonwealth (1907) 5 CLR 418
2 citations
Jump To
Cite 1 - (1907) 5 CLR 418
Cite 2 - (1907) 5 CLR 418
Turner v London Transport Executive [1977] ICR 952
2 citations
Jump To
Cite 1 - [1977] ICR 952
Cite 2 - [1977] ICR 952

Cases Citing

Case NameFull CitationFrequency
GPT RE Limited v Valuer-General (No 3) [2019] QLC 82 citations
1

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