Hua v Valuer-General[2017] QLC 10

LAND COURT OF QUEENSLAND

Background

1. [1]
   This application requires the Court to determine whether it has jurisdiction to hear three appeals lodged pursuant to s 157 of the Land Valuation Act 2010 (the LVA) concerning properties at Windsor, Paddington and Clayfield (the subject properties) within the Brisbane City Council local government area.

2. [2]
   The proposed appeals LVA1056-16 and LVA1057-16 (filed 15 days late) and LVA1058-16 (filed 32 days late) can only be heard if “reasonable excuse” is established as required by s 158 of the LVA.  As the relevant facts and circumstances are identical in each application all three matters are to be dealt in a single judgment with the consent of the parties.

3. [3]
   On 3 May 2016 the applicants each lodged an objection to the 1 October 2015 valuation for the relevant subject property pursuant to s 105 of the LVA. The front page of the objection document provides for the insertion of the contact details of the objector or the objector’s agent for future correspondence within a section headed “Contact Details”. In respect of each subject property the relevant objection notice was endorsed with the contact details for agent/solicitor Ms. Hien Nguyen. Notwithstanding the insertion of these details, the ensuing notice of objection decision was in each case forwarded to a different address to that endorsed within the “contact details” section on the objection notice and as a consequence Ms. Nguyen did not receive the objection decision notice within the relevant appeal period.

4. [4]
   Despite further enquiries by Ms. Nguyen no objection decision notices were provided to her by the respondent until 16 September 2016. The appeals the subject of the present applications were lodged by her later that same day.

5. [5]
   Section 157 (2) of the LVA provides –

1. (2)
   Subject to section 158, an appeal cannot be started after 60days after the day of issue stated in the objection decision notice (the appeal period).

6. [6]
   Relevantly, s 158 of the LVA provides –

“158 - Late filing

1. This section applies if a valuation appeal notice is filed after the appeal period has ended.
2. The Land Court can hear the appeal only if -

(a)  the valuation appeal notice was filed 1 year or less after the objection decision notice was issued;  and

(b) the appellant satisfies the court there was a reasonable excuse for not filing the notice within the appeal period.

 Example of reasonable excuse –

The notice of the valuer-general’s decision or the valuation appeal notice was lost or delayed in the ordinary course of post.”

Evidence

7. [7]
   The parties have agreed that the applications in respect of each subject property may be determined without the need for a formal hearing of evidence i.e. “on the papers”. On this basis the Court has received on behalf of the applicants (without objection) an email chain from Ms. Nguyen dated 16 September 2016 (Ex.1) together with submissions filed 8 March 2017 and on behalf of the respondent an affidavit of Theresa Dunn (Ex.2) and related submissions both filed 7 March 2017.

Applicant’s submissions

8. [8]
   A summary of the contentions made on behalf of the applicants is summarised below:

a) Four objection notices with Hien Nguyen’s name and contact details endorsed for the provision of further correspondence were lodged with the respondent on 3 May 2016.  Only one out of the four ensuing decision notices was forwarded to Ms. Nguyen in accordance with the contact details and an appeal was lodged for that property within the required timeframe.  The other three objection decision notices that were not forwarded to the designated address concern the three properties the subject of the current proceedings.  

b) On or about 3 August 2016 “follow up” emails were forwarded to the respondent regarding the objection decision notices for each subject property, but no response to this email was received from the respondent. 

c) On or about 15 September 2016 a further “follow up” email was forwarded to the respondent regarding the objection decision notices and on 16 September 2016 Ms. Nguyen was advised by email of the issue dates for each objection decision notice. Upon receiving a copy of each notice Ms Nguyen observed that none had been forwarded to the service address that had been inserted on the objection notice.

d) At 4:56pm on 16 September 2016 Ms. Nguyen filed the notices of appeal in respect each of the subject properties.  This was done without delay as Ms. Nguyen had only received the notices earlier that day.  Had the notices been received earlier the appeal notices would have been lodged when received.

e) Reasonable cause has been established because:

i. The objection decision notices showed a different address to that designated on the Form 58 objection and were not received by Ms Nguyen or the appellants.

ii. Ms Nguyen attempted to ascertain the whereabouts of the notices by follow up emails, however the respondent did not respond to an email enquiry sent on 3 August 2016.  If a response had been received, the appeals would have been able to be lodged within the relevant appeal period.

iii. The applicants and their agent/solicitor acted with due care and diligence in the circumstances.

Respondent’s submissions

9. [9]
   On behalf of the respondent an affidavit of Theresa Dunn, Senior Land Officer employed by the State Valuation Service within the Department of Natural Resources and Mines (DNRM) was filed on 7 March 2017.  Annexed to Ms Dunn’s affidavit were true and correct copies of the annual land valuation notices, objection notices and decisions on objection for the three subject properties.
10. [10]
    The affidavit confirms that the objection decision notices were each posted to the same address as that stated on the annual valuation notice rather than the address for service of the landowners as recorded on the objection notices i.e. c/ Hien Nguyen.  The affidavit also deposes that a search of the department’s records indicates that there is no record of any valuation notices or objection decision notices having been returned to the department on a “return to sender” basis.
11. [11]
    On 7 March 2017 a short submission was received by the Court from Mr Ian Pepper, Senior Lawyer, DNRM. The submission advised that after considering Ms. Nguyen’s email dated 16 September 2016 and the affidavit of Theresa Dunn, the respondent did not oppose the Court allowing jurisdiction, following the decision in 50 Long Pty Ltd and Arras Ltd v Chief Executive, Department of Environment and Resource Management [2010] QLC 6 (50 Long Pty Ltd).

Conclusion

12. [12]
    In considering this application I have been assisted by the decision of this Court in 50 Long Pty Ltd^[1], referred to in the submissions provided by Mr Pepper.  This decision concerned whether “reasonable excuse” was established as required by s. 57 of the Valuation of Land Act 1944 in circumstances where the filing of the appeal was late as a consequence of the objection decision notice being forwarded in error to the owner’s private address rather than to their agent’s nominated address.  After a contested hearing the Court determined that “reasonable excuse” had been established.  The circumstances involved, although not exactly identical are none the less very similar to evidence in the current applications and accordingly the approach taken by the Court in 50 Long Pty Ltd is directly applicable and remains authoritative notwithstanding the enactment of the Land Valuation Act 2010.  
13. [13]
    After considering the evidence and submissions before the Court I have concluded that reasonable excuse as required by s 158(2)(b) of the LVA is established on behalf of each applicant. The evidence clearly demonstrates that Ms. Nguyen’s efforts to lodge the notices of appeal within the required time frame were in effect forestalled as a result of the objection decision notices not being forwarded to her notified service address. This difficulty was further compounded when email enquiries made during the appeal period regarding the progress of the relevant objections were not answered on behalf of the respondent.  These factors are clearly of a “substantial^[2]” character and involve “the kind of thing which might be expected to delay the ‘taking of action by a reasonable man^[3]’”. 

Order

1. The Court has jurisdiction to hear and determine the appeals.

GJ SMITH

JUDICIAL REGISTRAR OF THE LAND COURT