Macarthur Central Shopping Centre Pty Ltd v Valuer-General
[2016] QLC 10
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- Macarthur Central Shopping Centre Pty Ltd v Valuer-General[2016] QLC 10
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Macarthur Central Shopping Centre Pty Ltd v Valuer-General[2016] QLC 10
Macarthur Central Shopping Centre Pty Ltd v Valuer-General[2016] QLC 10
LAND COURT OF QUEENSLAND
CITATION: | Macarthur Central Shopping Centre Pty Ltd as TTE v Valuer-General [2016] QLC 10 |
PARTIES: | Macarthur Central Shopping Centre Pty Ltd as TTE (appellant) v Valuer-General (respondent) |
FILE NO: | LVA076-14 |
DIVISION: | General Division |
PROCEEDING: | General application |
DELIVERED ON: | 19 February 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | 9 October 2015 |
HEARD AT: | Brisbane |
PRESIDENT: | CAC MacDonald |
ORDERS: | 1. The appellant’s application for further and better particulars is not granted at this stage. 2. The appellant has liberty to apply, on five days notice, for an order for further and better particulars, if considered necessary after a joint report of the valuers has been filed and served. 3. The respondent’s application for further disclosure is refused. |
CATCHWORDS: | PRACTICE AND PROCEDURE – Application for further and better particulars – general principles as to further and better particulars – details of comparative sales analysis are particulars but not necessary to order their production prior to a meeting of experts. PRACTICE AND PROCEDURE – Application for disclosure – relevant documents not in the possession or control of the appellant but maybe in the possession of a third party advisor – request for Sabre order for appellant to obtain documents from the third party – Sabre order refused – no reason why the respondent cannot seek disclosure orders under the non-party disclosure provisions of the UCPR. Land Court Act 2000, s 7 Land Valuation Act 2010 Uniform Civil Procedure Rules 1999, r 149, r 157 Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 Psalidis v Norwich Union Life Australia Ltd (2009) 29 VR 123 Sabre Corporation Pty Ltd v Russ Kalvins Haircare (1993) 46 FCR 428 |
APPEARANCES: | Mr AR Lonergan of Counsel for the appellant Mr SP Fynes-Clinton of Counsel for respondent |
SOLICITORS: | OMB Solicitors for the appellant In-House Legal, Department of Natural Resources and Mines, for the respondent |
Background
- [1]The substantive proceedings in this matter concern an appeal by Macarthur Central Shopping Centre Pty Ltd as Trustee (the appellant) against an objection decision issued by the respondent, the Valuer-General, under the provisions of the Land Valuation Act 2010. The objection decision was issued in response to an objection by the appellant to the respondent’s valuation of the appellant’s land as at 1 October 2012. The subject property is located at 229 Queen Street, in the Brisbane CBD.
- [2]This decision deals with an application by the appellant for an order that the respondent provide further and better particulars, as detailed below. The decision also deals with an application by the respondent for an order that the appellant provide further disclosure by way of a further supplementary list of documents as set out in the application.
- [3]The appeal proceedings are being case managed by the Land Court in accordance with its usual procedures. Pursuant to an order made on 21 July 2015, the appellant filed and served particulars of the grounds of appeal set out in the Notice of Appeal and the respondent filed and served a statement of facts, matters and contentions in response to the appellant’s particulars of the grounds of appeal.
- [4]The appellant subsequently filed a request for further and better particulars of the respondent’s statement of facts, matters and contentions. The Court then ordered the respondent to serve on the appellant a response to the request for further and better particulars of the respondent’s statement of facts, matters and contentions. The Court also ordered the parties to exchange, by way of disclosure, a list of all documents in their possession and control directly relevant to the issues in the proceeding.
Application for further and better particulars
- [5]In response to the request for further and better particulars, the respondent’s lawyer advised the solicitors for the appellant, by letter dated 11 September 2015, that:
“The further particulars about which the Appellant requests, either purport to seek particulars of contentions (arguments) or seek the provision of evidence to support assertions which are clearly and concisely pleaded. The Respondent has to the best of its ability provided its response to the Appellant’s further and better particulars even though they are mostly argumentative and contained limited (if any) statements of specific facts relied upon to explain why and how the comparable sales or physical/legal characteristics or constraints support a site value of $3,300,000. The evidence and elaboration of the arguments will emerge as part of the joint meeting process between the experts and in their trial reports.”
- [6]The appellant subsequently filed a general application seeking an order that the respondent provide the further and better particulars sought by the appellant. In general terms, the request seeks particulars of various statements made by the respondent (in the respondent’s statement of facts, matters and contentions) about various properties identified by the appellant as comparable property sales.
- [7]The appellant has submitted that:
- the particulars provided in the respondent’s statement of facts etc are not sufficient to define the issues so as to enable the appellant to have a fair opportunity to meet the respondent’s case and to avoid being taken by surprise;
- the provision of the particulars will contribute to the just and expeditious resolution of the real issues in the proceeding at a minimum of expense, avoiding undue delay, technicality and the possibility of unfair surprise at the hearing;
- the provision of the particulars will enable the appellant’s valuation expert to be apprised of the real issues in the appeal and to be prepared to deal with those issues as part of a “meeting of experts” as that term is defined in the Rules.
- [8]In general terms, the respondent submitted that the appellant’s requests fall into three categories:
- requests for particulars of facts asserted by the appellant and not in contention;
- in one case, a request for particulars of an assertion that something has not been done by the appellant and does not exist (in circumstances where on the face of the Court documents that is true); and
- requests for particulars of a valuation reasoning process, that is, matters of evaluation, judgment and opinion.
- [9]Before considering the parties’ submissions in relation to each request, it is useful to set out the general principles applicable to resolving of a dispute about the provision of particulars.
- [10]Rule 149 of the Uniform Civil Procedure Rules 1999 (UCPR)[1] provides in part that a pleading must contain a statement of all the material facts on which a party relies, but not the evidence by which the facts are to be proved, and must state specifically any matter that, if not stated specifically, may take another party by surprise.
- [11]Rule 157 of the UCPR provides in part that a party must include in a pleading particulars necessary to define the issues for, and prevent surprise at, the hearing.
- [12]Although there are no formal pleadings in this Court, it is recognized that it is necessary in the interests of justice and the efficient conduct of litigation, that each party to the proceeding be apprised of the case that he/she has to meet. Documents such as a statement of facts, matters and contentions, and a response thereto, should therefore set out the material facts which a party alleges, identify the issues, disclose an arguable cause of action or defence and apprise the parties of the case that has to be met[2].
- [13]
“fulfil an important function in the conduct of litigation. They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise. On the other they save expense by keeping the conduct of the case within due bounds.”
- [14]While it is necessary to apply those principles in a matter of this kind, it is also relevant to keep in mind that s 7 of the Land Court Act 2000 provides that:
“7 Land Court to be guided by equity and good conscience
In the exercise of its jurisdiction, the Land Court—
- (a)is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
- (b)must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.“
- [15]And the remarks of Martin CJ in Barclay Mowlem Construction Ltd v Dampier Port Authority[4] are also relevant:
“In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. …
Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.
In my view, it follows that provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and apprising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.
…
Particulars should be provided, in an appropriate case, where they are necessary to meet the fundamental objectives to which I have referred; that is to say, the true enunciation of the issues that are to be tried and the identification of the case that has to be met. The need to provide particulars must also be assessed in the case management environment to which I have referred; that is to say, an environment in which the parties can be assured that the case will not go to trial before various orders have been made requiring the pre-trial disclosure of all the evidence that will be adduced at trial.”
- [16]Relevantly, the case management techniques and pre-trial directions typically adopted in this Court in proceedings such as this include orders that:
- the appellant file and serve a statement of particulars of the grounds of appeal set out in the notice of appeal;
- the respondent file and serve a statement of facts, matters and contentions in response to the appellant’s particulars of the grounds of appeal;
- further and better particulars of each party’s statement of facts etc, be provided when necessary;
- disclosure by list and inspection or copies of documents in the possession or control of each party that are directly relevant to the issues in the proceedings;
- each party provide written notification to the other of the appointment of expert witnesses and their areas of expertise;
- the experts in each discipline meet and prepare and file a joint statement of issues that are agreed and disagreed and the reasons therefore;
- the experts’ individual reports be filed and served.
- [17]Although no orders of the type described in the last two steps have as yet been made in this matter, it is likely that they will be and I have therefore approached this decision on that basis. I turn now to consider the requests for further and better particulars.
Request nos. 1 and 2
- [18]In relation to the respondent’s assertions about the sale of 55 Elizabeth Street, the appellant seeks:
- the usual particulars of the proper analysis of the sale;
- the usual particulars of how “the appellant has not analyzed the sale to achieve a site improved state capable of direct comparison with the site value of the subject land.”
- [19]The appellant asserts that the respondent’s failure to provide the particulars sought means that the appellant will not have a fair opportunity to meet the respondent’s case and faces the possibility of unfair surprise at the hearing. Further, provision of the particulars will enable the appellant’s valuation expert to be prepared to deal with those issues at the meeting of experts.
- [20]The respondent submits that the analysis of a sale is a matter of contestable valuation judgement; it is not a fact; the appellant has provided no analysis of the sale and the valuers will compare analyses and discuss differences of opinion in the joint reporting process.
- [21]In principle, the request for particulars of the sales analysis is, I consider, a proper request in that it fulfils the requirement of r 157(a) of the UCPR, that the information is necessary to define the issues for and prevent surprise at the hearing. I do not accept the respondent’s contention that the particulars should not be supplied because they are not matters of fact. The respondent cited no authority for the proposition that particulars should be confined to matters of fact and r 157 is not so confined. I also do not accept the respondent’s assertions that he should not have to supply the particulars because the appellant has not provided particulars of its sale analysis. If the respondent requires such particulars it should have requested same.
- [22]Although I consider that the particulars of the sales analysis sought are the proper subject of particulars I am not prepared to order the respondent to provide the particulars at this stage. It is clear from the submissions that both parties contemplate that there will be a joint meeting of the valuation experts in due course, in accordance with the Court’s usual case management procedures. The sales analysis adopted by each valuer will undoubtedly be a subject of discussion between the valuers at that meeting. I do not consider that it is necessary for the appellant’s valuer to be apprised of particulars of the respondent’s analysis prior to the meeting, as the respondent’s statement of facts etc is sufficient, in my opinion, to enable the appellant’s valuer to prepare adequately for the joint meeting. To order the respondent to provide the particulars prior to the meeting would be an unnecessary duplication of process and an exercise in technicality at this stage of the proceedings. Further, the provision of particulars may constrain the valuers’ discussions at the joint meeting. The appellant will have liberty to apply, if after the joint meeting, the appellant considers that particulars of the sales analysis are still required.
- [23]The respondent’s statement that the “appellant has not analysed the sale to achieve a site improvement state capable of direct comparison with the site value of the subject land” is ambiguous. If it means, as the respondent’s submissions imply, that the appellant has not carried out an analysis of the sale to site value then I accept the respondent’s submission that the statement asserts a negative, and no order for particulars should be made.
Request nos. 3 to 12
- [24]The respondent identified three sales as comparable with the subject and supporting the issued site value – 127 Charlotte Street, 55 Elizabeth Street and 105 Margaret Street. The appellant requested:
- the usual particulars of how the sales support the issued site value for the subject property.
- [25]It appears that the subject land is heritage listed. The respondent said, in its statement of facts etc, that it had considered the heritage listing in its assessment of the site value. The appellant requested:
- the usual particulars of the subject land’s heritage listing;
- the usual particulars of how the respondent has considered the heritage listing in its site value of the subject;
- the usual calculation of the assessment of the site value.
- [26]Similarly, the appellant sought particulars of how the respondent had considered:
- the ability to split the property into multiple tenancies in its assessment of the site value and its relevance to the subject’s highest and best use;
- the ongoing maintenance of a heritage building;
- the limited exposure and signage available to tenants due to heritage constraints;
- the subject’s volumetric boundaries and development constraints;
- the impact of the volumetric residential parcel;
- the gross floor area which incorporates the basement and mezzanine level; and
- certain matters referred to in paragraph 5(f) of the respondent’s statement of facts, matters and contentions.
- [27]In all cases the appellant’s requests were made on the basis that the particulars were necessary to enable the appellant’s valuers to be apprised of the issues and to be prepared for the valuers’ joint meeting. In requests nos. 4, 5 and 7-12 the requests were also made on the basis that failure to provide the particulars sought would mean that the appellant will not have a fair opportunity to meet the respondent’s case and faces the possibility of unfair surprise at the hearing.
- [28]For the reasons set out above, I consider that the requests are premature in that they will lead to a duplication of process and unnecessary technicality, given that there will be a joint meeting between the valuers. I am not therefore prepared to make the orders sought at this stage. In these cases also, the appellant will have liberty to apply, after the joint meeting, if it considers that the particulars sought are necessary.
Application for Disclosure
- [29]The respondent has applied for orders that the appellant make such request and do such things as may reasonably be necessary to obtain from Savills Valuations Pty Ltd (Savills) certain specified documents. Mr N Murphy of Savills filed the notice of appeal and the further and better particulars of the grounds of appeal in this Court. It appears that Mr Murphy has been engaged by the appellant as an expert valuation witness for the purpose of these proceedings.
- [30]The respondent says that the appellant’s grounds of appeal and particulars raise assertions of fact about four comparable sales and the existence of development approvals, leases and other documents referred to in the grounds and particulars; that the appellant has also raised issues of fact about higher maintenance costs of a heritage building similar to the existing building on the subject land; and that the appellant has not disclosed any documents relevant to those matters because the appellant asserts that they are in the possession of its expert and not in the possession or control of the appellant.
- [31]The documents sought are documents that:
- (a)evidence the fact and terms of each of the sales at 55 Elizabeth Street, 451 and 461 Ann Street, 62 Ann Street and 105 Elizabeth Street as identified in the appellant’s grounds of appeal and particulars;
- (b)55 Elizabeth Street:
- (i)evidence the development approval dated 17 March 2011 referred to in the commentary to that sale;
- (ii)evidence the ATO requirements and the draft lease said to be relevant to the purchase decision;
- (c)451 and 461 Ann Street:
- (i)evidence the development application dated 19 September 2012 referred to in the commentary to that sale;
- (ii)evidence the Council request for further investigation about the interface with the Orient Hotel referred to in the commentary to that sale;
- (iii)evidence the particular decision about building to boundary referred to in the commentary to that sale;
- (d)62 Ann Street:
- (i)evidence the lease back to the State Government referred to in the commentary to that sale;
- (ii)evidence the intention of the purchaser to redevelop the site with a mixed use twin tower development;
- (e)for the subject property:
- (i)evidence the maintenance costs for the existing heritage building on the site or any new building developed in accordance with heritage limitations, which are asserted to be higher or more onerous than maintenance costs for developments with no heritage character;
- (ii)evidence the facts relied on to assert the contentions in ground 2 of the appeal and particulars.
- [32]On 9 September 2015 the Court ordered that the parties undertake disclosure by way of an exchange of lists of all documents in their possession or control directly relevant to the issues in the proceeding. On 21 September 2015 the parties exchanged their lists of documents. On 23 September 2015 Mr P Prasad, lawyer, In-house Legal, Department of Natural Resources and Mines wrote to the solicitors for the appellant requiring the appellant to provide full and proper disclosure of certain specified documents[5].
- [33]
“Our client has an obligation to disclose documents that are in its possession or control and relevant to an issue in the appeal. Our client has complied with this obligation and denies that documents that are in the possession of an expert or advisor are documents that are under the Appellant’s control and on that basis, there is no obligation on our client to disclose documents held by its expert.
There are mechanisms contained in the Rules that provide for your client to obtain documents from third parties. Your client is welcome to employ those mechanisms.
Notwithstanding our client’s position (as articulated above), our client has asked its expert for copies of any documents relevant to an issue in the appeal and will disclose such documents when (and if) they are obtained by way of a supplementary list of documents.”
- [34]On 7 October 2015 the solicitors for the appellant wrote to Mr Prasad saying that they had made enquiries with their client’s agent and were informed that they hold no documents in their possession which relate to an issue at the hearing[7].
- [35]The respondent subsequently filed this application for disclosure.
- [36]Rule 211 of the UCPR provides that a party to a proceeding has a duty to disclose to each other party each document ―
- (a)in the possession or under the control of the first party;
- (b)directly relevant to an allegation in issue in the pleadings;
- (c)if there are no pleadings – directly relevant to a matter in issue in the proceedings.
- [37]The respondent has not challenged the statements in the appellant’s solicitor’s letter of 28 September 2015 and there is no evidence that the appellant has any relevant documents in its possession or control other than those disclosed in the list and supplementary list of documents provided by the appellant’s solicitors. The respondent accepts that documents which are not in the actual possession of a party are not under that party’s control unless it has an enforceable right to demand or take possession of those documents, or at least copies of them.
- [38]One question is whether there are any relevant documents in the possession or control of Savills. In my opinion there is an objective likelihood that the documents sought by the respondent exist or existed because the details referred to in the appellant’s grounds of appeal and the further particulars of those grounds provide information which is likely to have been sourced in documents. Those documents may or may not be in the possession or control of Savills but the likelihood is such that, if Savills were a party to the litigation, I would be disposed to order, under r 223(2), that Mr Murphy of Savills file and serve an affidavit stating that the specified documents do not exist or have never existed and or the circumstances in which the specified documents ceased to exist or passed out of the possession or control of Mr Murphy.
- [39]However, Savills is not a party to the proceeding and the rules do not authorise such an order directed to a non-party. In those circumstances the respondent has sought a “Sabre” order. The order takes its name from a decision of the Federal Court in Sabre Corporation Pty Ltd v Russ Kalvins Haircare[8]. In that case it was held that the Court had power to direct a party to take steps to obtain access to and discover documents which were in the possession, power or control of a third party where there was a real likelihood that the party to the proceeding would be given access to the documents upon request. The documents in question were held by a USA corporation with which the party had a close business relationship.
- [40]The respondent in this case submitted that the Court has power under UCPR r 367 to order the appellant to request the relevant documents from the third party. The respondent submitted that, if the Court were satisfied that there is a real likelihood that such a request would be met with an affirmative answer, the Court can and should make such an order if to do so would facilitate quick and cost effective progress of the litigation. The respondent acknowledged that the non-party disclosure procedure provided in the UCPR could be invoked to require disclosure and production of the documents but submitted that, because that is a costly and formal process which adds both time and costs which can easily be avoided, it was preferable to make an order of the kind now sought by the respondent.
- [41]It is acknowledged that r 22(3) of the Land Court Rules and/or r 367 of the UCPR would appear to give the Court power to make a Sabre order. However I am not persuaded that it is appropriate to make such an order in this case. Rules 242-249 of the UCPR provide a specific process for the provision of non-party disclosure. The respondent has sought to avoid using that process by submitting that it added time and cost unnecessarily. I do not accept that submission. The rules in question are expressly designed for non-party disclosure and, in particular, they provide a process whereby the non-party can object to disclosure. In my view it is desirable that those processes should be followed unless there is a good reason not to do so. As pointed out in Psalidis v Norwich Union Life Australia Ltd[9], it remains a matter for the discretion of the Court whether the power to make a Sabre order should be exercised. The Court in Psalidis distinguished Sabre on the basis that in Sabre there was a real difficulty about using the ordinary processes of third party discovery to obtain the relevant information or documents. The third party was out of the jurisdiction and not readily amenable to the ordinary processes of the jurisdiction. There are no comparable difficulties in the present case. In this case, I do not consider that the respondent’s proffered reasons are sufficient to warrant the making of a Sabre order.
ORDERS:
- The appellant’s application for further and better particulars is not granted at this stage.
- The appellant has liberty to apply, on five days notice, for an order for further and better particulars, if considered necessary after a joint report of the valuers has been filed and served.
- The respondent’s application for further disclosure is refused.
CAC MacDONALD
PRESIDENT OF THE LAND COURT
Footnotes
[1] Rule 4(1) of the Land Court Rules 2000 says that if the Land Court Rules do not provide for a matter in relation to a proceeding in the Court and the UCPR would provide for the matter, the UCPR apply to the matter with necessary changes.
[2] See Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281 at [7].
[3] Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219.
[4] [2006] WASC 281 at [5] – [7]; [16].
[5] Exhibit PSP-019 to the affidavit of PS Prasad filed 8 October 2015.
[6] Exhibit PSP-020 to the affidavit of PS Prasad filed 8 October 2015 (citation omitted).
[7] Exhibit PSP-023 to the affidavit of PS Prasad filed 8 October 2015.
[8] (1993) 46 FCR 428.
[9] (2009) 29 VR 123 at 157.