The Trust Company Limited v Valuer-General
[2017] QLC 25
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- The Trust Company Limited v Valuer-General[2017] QLC 25
- Add to List
The Trust Company Limited v Valuer-General[2017] QLC 25
The Trust Company Limited v Valuer-General[2017] QLC 25
LAND COURT OF QUEENSLAND
CITATION: | The Trust Company Limited v Valuer-General [2017] QLC 25 |
PARTIES: | The Trust Company Limited (appellant) |
| v |
| Valuer-General (respondent) |
FILE NO: | LVA581-15 |
DIVISION: | General Division |
PROCEEDING: | Appeal against valuation under the Land Valuation Act 2010 |
DELIVERED ON: | 1 June 2017 |
DELIVERED AT: | Brisbane |
HEARD ON: | 13 December 2016 Submissions closed 28 March 2017 |
HEARD AT: | Brisbane |
MEMBER: | WA Isdale |
ORDER/S: | 1. The appeal is dismissed. 2. The valuation appealed against is confirmed. |
CATCHWORDS: | REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where appellant objects to valuation – where the site value is said to be excessive and not supported by sales – where the site value is said not to reflect the characteristics of the land and the constraints on its use – where the respondent’s valuation is said to be based on erroneous methodology Land Valuation Act 2010 s 169, 170 Barnwell v The Valuer-General (1990-91) 13 QLCR 13 Body Corporate for Wendall Court & Anor v Valuer-General [2015] QLC 16 Clough v Valuer-General (1981-82) 8 QLCR 70 Duffy v Minister for Planning [2003] WASCA 294 Edgarhead Pty Ltd v Valuer-General [2015] QLC 18 Fischer v The Valuer-General (1983) 9 QLCR 44 Fairfax v Department of Natural Resources and Mines [2005] QLC 11 Grahn v Valuer-General (1992-93) 14 QLCR 327 Henderson v Shire of Liverpool Plains (1932) 2 The Valuer 179 Maurici v Chief Commissioner of State Revenue (2005) NSWLEC 20 Murdesk Investments Pty Ltd v Roads Corporation [2006] VSC 363 Spencer v The Commonwealth (1907) 5 CLR 418 NR & PG Tow v Valuer-General (1978) 5 QLCR Valuer-General v Fenton Nominees Pty Ltd (1981-82) 150 CLR 160 |
APPEARANCES: | DD Purcell instructed by MinterEllison - Gold Coast for the appellant SP Fynes-Clinton instructed by the Crown Solicitor for the respondent |
Background
- [1]The appellant owns land at 1233 Wynnum Road, Cannon Hill in Brisbane. It is described as lot 5 on SP 142868, County of Stanley, Parish of Bulimba. It has an area of 3,623 m2 and there is a Caltex service station on it. Under the Land Valuation Act 2010 (the Act), the respondent was required to value it as a site and did so as at 1 October 2014. The respondent valued the land at $1,600,000.
The grounds of appeal
- [2]The appellant contends for a valuation of $1,000,000. The grounds of appeal are that the respondent’s valuation is excessive when the land is compared to the sales of comparable properties. It is also said that the value does not reflect the characteristics of the land and the constraints on its use. It is said that the respondent’s valuation methodology is faulty.
The dispute
- [3]The dispute was confined to the differing opinions of the valuers. Each party called only one witness, their registered valuer. Mr Neil Murphy was called on behalf of the appellant and Mr John Groenendyk for the respondent. They each prepared a written report and were cross-examined. The Court is not an investigating tribunal but must come to its conclusion on the basis of the evidence which the parties put before it.
The Act
- [4]The Act provides, by section 169, that the appeal is a rehearing and is limited to the grounds of appeal. The appellant has the onus of proof. Section 170 provides that the Court may confirm the valuation or adjust it to make it correct.
- [5]There is no dispute that the land is to be valued as a site, a concept defined in the Act. The date of valuation is 1 October 2014.
The principles of valuation
- [6]
The appellant’s case
- [7]The appellant does not have any dispute about what the highest and best use of this land is. The parties agree that it is best used as a service station, which is its current use. In the manner of such businesses at present, it has some retail sales facilities, a large awning and, underneath the awning, 10 double-sided fuel bowsers providing 20 fuelling bays. It is located on Wynnum Road at Cannon Hill. There are two lanes of traffic in each direction, separated by a median strip. The result is that access by vehicles is only available to those travelling west towards the city, and is left turn in and left turn out. The block is nearly square, about 60 m to a side, is fully cleared and developed, is level and roughly at grade with the road.
- [8]The primary issue is the choice of the sales used to compare with the subject land and how those sales should be applied to arrive at an accurate valuation of the subject.
- [9]The appellant accepts that the best indicator of value is sales of vacant or lightly improved parcels of land such that the scope for error when adjusting for the value of improvements is minimised.[3] As there is an absence of vacant land sales, some analysis has been necessary to estimate the site value of comparable sales.
- [10]The appellant acknowledged that valuation by use of comparable sales introduces some subjective judgment such that an appellate Court should not substitute its opinion for that of the Court below, or valuation witness in the lCourt below, unless it is shown that it acted on a wrong principle of law or that the valuation was erroneous.[4] Although the High Court, in Valuer-General v Fenton Nominees, was considering appeals, there is some applicability of the underlying concept to matters such as the present matter in that this Court must determine the appeal on the evidence the parties put before it and not become, in effect, a third valuer.
- [11]The appellant directed the Court’s attention to the decision of President MacDonald in Body Corporate for Wendall Court & Anor v Valuer-General [2015] QLC 16, where the learned President said:
“[22] The authorities are clear that the best evidence of value for the purposes of an unimproved valuation made under the Act, is the sales of unimproved or lightly improved comparable land. This is because the Act says, in s 19(1), that the site value of land is the value that would be expected to be realized under a bona fide sale, assuming the non-site improvements had not been made. Selection of sales of vacant or lightly improved land, rather than sales of improved properties, avoids the difficulties and errors likely to arise in analysing improved sales. Thus in Clough v The Valuer-General, the Land Appeal Court said that:
"It has been judicially laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation, etc., to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value. The reason is obvious. In applying such sales there is no room for error in analyzing the value of improvements.
Because there is less room for difference of opinion as to value of the various items of improvement and comparison is thus simpler, it has been held that highly improved sales should be avoided in preference to sales comprising a lesser degree of improvement."
[23] In these appeals, it is the site value of the subject land that is in issue, not the unimproved value. Nevertheless the same approach should be adopted. That is, the best basis for assessment of site value under the Act is the use of sales of comparable parcels of land with similar site improvements to the subject, but which are otherwise vacant or lightly improved.” (reference omitted)
- [12]The subject land contains around 247 m2 of internal batter banks along its eastern and southern boundaries. The appellant’s valuer, Mr Neil Murphy, has applied a nominal value of $10 per m2 to that area, which reduces the site value by $71,630. He has treated the sales he uses for comparison in the same way.
The nature of the market
- [13]There is no dispute that the market conditions on the valuation date are as described in the report prepared by Mr John Groenendyk, the respondent’s valuer.[5] At paragraph 26 of his report, Mr Groenendyk said:
“26. Market:
The commercial property market in Brisbane remained flat from 2010; however near the end of 2013 the market started to see movement on the back of low interest rates, southern money moving north from Sydney and Melbourne as Brisbane was still seen as affordable and in anticipation of the Brisbane City Plan 2014. Come mid 2014 the market started to show a marked increase in sales volumes and prices paid for development sites. The Brisbane City Plan 2014 came into effect on the 1 July 2014 and greatly increased densities of development across parts of Brisbane and concentrated in identified transportation corridors. This has seen prices paid for multi-unit, mixed use and commercial land increase substantially and a rise in development sales where the improvements onsite have been viewed as obsolete under the new plan.
Petrol Station sites have not been immune to this market, with multiple transactions occurring for land to be developed as petrol stations and for sales of existing petrol stations with obsolete improvements but with a historical ‘as-of-right’ use as petrol station redeveloped.”
- [14]The appellant identified the caution which needs to be applied to sales in a rising market when they are substantially removed in time from the valuation date. Sales closer in time to the valuation date can be looked at with greater confidence.
The land
- [15]Some of the land’s characteristics have already been referred to. It is zoned as Emerging Community and is within the River Gateway Neighbourhood Plan. The rear boundary is close to Bulimba Creek and a small part of the land along its eastern boundary is subject to creek flooding which the batter banks are there to control. A small area on the northern boundary is also subject to overland flow.
Valuation methodology
- [16]Both valuers have used the method of direct comparison of the subject with sales on a rate per m2 basis. There is one sale which is used by both valuers, who have each had regard to a number of sales.
Highest and best use
- [17]
The appellant’s valuer’s sales
- [18]Sale 1 at 1–3 Juers Street, Kingston, was of 3,205 m2 which sold for $1,000,000 in August 2014. It was sold with an approval for a 1,000 m2 convenience centre anchored with an “IGA” shop. Before settlement, the approval was altered to include a “7-11” service station and retail tenancies. It is a corner block, slightly irregular in shape, and had an existing access and driveway as well as 19 concrete sealed parking areas valued at $300,000. There was a 3 month settlement period on the contract. The site, unlike the subject, was not contaminated. It is noted that use of the subject as a service station renders its contamination from that existing use not a concern. The land has frontage to Kingston Road, a four lane dual carriageway with a signalled intersection at the corner. Mr Murphy considered it inferior in location and exposure to the subject, and otherwise comparable. Overall, he thought it inferior to the subject. After adjusting for the improvements, easements and some batter banks, Mr Murphy valued it at $256 per m2.
- [19]Sale 2, at 170 Bennetts Road, Norman Park, was of 2,023 m2 which was sold for $1,050,000 in September 2014. It is in a Character Residential zone and was sold improved with a service station, retail area and mechanical workshop as well as a parking area. The sale occurred with a tenant in place. The land is irregularly shaped and is on the corner of Bennetts Road and Milsom Street. It is on a round-about, so access is available to traffic passing in both directions. It is significantly smaller than the subject and Mr Murphy views it as in a superior location with superior access but inferior exposure. Overall, he believes it is superior to the subject. The “big factor”,[8] in his opinion, was location and relative closeness to the central business district as well as its relatively smaller size. He acknowledged that the sale would have been influenced by the heated market in the area for residential use which would have been a competing use for this land.[9] He analysed it at $445 per m2.[10]
- [20]Sale 3, at 367 Handford Road, Taigum, was the sale used by both valuers. With an area of 2,876 m2, it sold in October 2013 for $935,000. Zoned Emerging Community, it sold with an approval for 550 m2 of retail on a single level. It is regularly shaped and built up and retained to provide a level site. It is within an existing retail precinct which has an Aldi and a Coles supermarket. There was a two month settlement period. Mr Murphy sees this as a superior position with comparable zoning and use as a service station. It has comparable exposure and superior access from both directions and also through the shopping centre. Mr Murphy sees it as superior overall. It has a better competitive position as a service station as the subject has a competitor 1.5 km away on the same side of the road such that the traffic has to pass the competitor before it passes the subject. Here there is no similar difficulty. This sale occurred without a development approval for a service station or a prospective tenant for one. After adjusting for easements and batter banks, Mr Murphy valued it at $326 per m2.
A check method
- [21]Mr Murphy has made a relativity assessment with some properties as a check on his valuation. The check is against the site values, on 1 October 2014, of five properties. They are all petrol station sites. Very little attention was given to them in the hearing and very little reliance is placed on them, for good reason. They are simply the values which the respondent has placed on these other properties. It is not known whether they are correct or not. Briefly they are:
Comparative | Site Value | Site area | Site value rate | Rating |
841 Manly Road, Tingalpa | $1,600,000 | 5,002 m2 | $320 per m2 | Superior |
1469 Wynnum Road, Tingalpa | $1,400,000 | 3,243 m2 | $432 per m2 | Superior |
459 Manly Road, Manly West | $1,275,000 | 3,859 m2 | $330 per m2 | Superior |
424 Mount Cotton Road, Capalaba | $900,000 | 4,021 m2 | $224 per m2 | Inferior |
424 Old Cleveland Road, Coorparoo | $1,200,000 | 2,408 m2 | $498 per m2 | Significantly Superior |
Some observations about the common sale
- [22]Sale 3 has the same zoning as the subject. It was sold without a development approval or a prospective tenant of a service station. It did have, at the time of the sale, an approval for 550m2 of retail on a single level. It has exposure along Handford Road and Roghan Road and access from both roads due to access through the shopping centre, obtained by easements which benefit, and burden, the land.
Mr Murphy’s eight-bay service station proposition
- [23]Mr Murphy has conducted his valuation on the basis of his view that there was really only one ordinary size for a service station in 2014, that is one with eight fuelling bays.[11] This means that a larger block of land than needed for eight fuelling bays would be purchased at a reduced rate per m2[12]since it is larger than necessary.
- [24]Mr Murphy said that he had “no evidence”[13] that a service station developer would seek to install more than eight bays.
- [25]Absence of evidence is not equal to evidence of absence. Mr Murphy said:
“… they wouldn’t install more than eight bays in my opinion.”[14]
- [26]There was no evidence to support this proposition, the acceptance of which by Mr Murphy has the effect of reducing the value of the subject since it is large enough to, and does, have 20 fuelling bays. There was no evidence that it was a sub-optimal business model such that there would be a lower price per m2 paid for a site capable of 20 fuelling bays.
- [27]Mr Murphy analyses sale 3 as showing $326 per m2. Mr Groenendyk analyses it as $325 per m2.
The respondent’s valuer’s sales
- [28]Mr Groenendyk has used six sales for the purpose of comparison with the subject.
- [29]Sale 1 is at 331 Murarrie Road, Murarrie. It has an area of 3,068 m2 and sold on 29 October 2014 for $1,800,000. It is zoned SP4-Special Purpose (Utility Centre). It is 800 m to the west of the subject. It has exposure to the intersection of Murarrie and Creek Roads. It has inferior zoning but a superior location and can be used for low to medium density residential as well as retail and commercial purposes. The purchaser obtained approval to develop it with 24 residential units. It is seen as superior to the subject. Analysed at $587 per m2, $570 per m2 was applied.
- [30]Sale 2 is at 864–868 Wynnum Road, Cannon Hill. It is 1,507 m2 and was two residences that were to be demolished and replaced by a child care centre. Sold on 25 March 2015 and 30 March 2015, well after the valuation date, the combined sale price was $1,362,500. Zoned Character Residential, it was assessed as superior. It was analysed at $904 per m2 and $564 per m2 was applied on the basis of a single unit dwelling concession. This sale, due to it taking place after the valuation date and in view of the applied rate being far below the analysed rate, would seem of little assistance to the Court.
- [31]Sale 3 is at 2007 Sandgate Road, Virginia. It has an area of 2,843 m2 and sold on 10 April 2015 for $1,520,000. It is zoned for Large Format Retail and was seen as superior. The rear portion of the land is a water retention basin. It is across Sandgate Road from the other like-zoned land nearby. Analysed to $534.15 per m2, it was applied at $492 per m2 and was seen as superior.
- [32]Sale 4 at 174 Cleveland Road, Tingalpa, was sold on 10 October 2012. It is an old sale. Its area is 3,822 m2 and it sold for $2,046,000. Analysed to $487 per m2, $440 per m2 was applied. Zoned General Industry A, it was assessed as inferior due to its slightly inferior location. The property market remained stable until late 2013.[15]
- [33]Sale 5 at 689 New Cleveland Road, Gumdale, was sold on 6 January 2014. It has an area of 2,336 m2 and sold for $1,110,000. Analysed to $475 per m2, $417 per m2 was applied. It is zoned for Environmental Management. It is seen as inferior to the subject. It had been a petrol station. In an inferior location and with a far inferior zoning, it was partially remediated by the purchaser and a new “7-11” petrol station was built there. The purchaser obtained the development approval but there was already a permitted use as a service station so there was no material risk in such a development obtaining approval.
- [34]Sale 6 is the common sale. Sold on 10 September 2013, Mr Murphy’s report gives the date as October 2013, for $935,000 it has an area of $2,876 m2. Zoned Emerging Communities, it analysed to $325 per m2 and $313 per m2 was applied. It is seen as inferior to the subject in a highly inferior location.
Contrasting the valuers’ approaches
- [35]As has already been considered, Mr Murphy valued the subject land on the basis of an assumption, not demonstrated by evidence, that purchasers of this site would see it as relatively less desirable for development as a service station than if it was optimally sized for one with eight fuelling bays. Essentially, he sees it as somewhat too large for an optimum return on investment. Other than his saying this, it was not a proposition that was supported by evidence.
- [36]While expert witnesses are able to give evidence of their opinion, a valuer, like any other expert, must reveal the factual and intellectual basis of the opinion.[16]
- [37]An opinion formed without a disclosed rational basis will be of little, if any weight.[17] Mr Murphy’s assumption relating to the economics of the subject site, without evidence demonstrating the validity of its basis, is of little, if any, weight.
- [38]Mr Groenendyk’s approach was to compare the subject land to other sales of land for commercial purposes, with differing highest and best uses. His concept was that in order to “buy-in” to an area, the levels of value there must be paid, irrespective of the proposed use of the land as a service station or for some other purpose.[18]
- [39]A distinction between the approaches of the valuers is that Mr Murphy’s approach focuses on the value being controlled by the economics of the proposed use and Mr Groenendyk sees the value as controlled by the location of the land.
Resolution of the conflict
- [40]Valuations made in reliance on comparable sales are as useful as the sales are comparable. There are noteworthy aspects of the sales relied on by Mr Murphy.
- [41]Sales 1, 1-3 Juers Street, Kingston, was claimed to have been analysed by Mr Murphy. He took the respondent’s applied value of the land, adjusted for the batter banks and easements and divided the sum arrived at by the area to reach a rate of $256 per m2. Mr Murphy’s evidence was that he had analysed the sale but had not provided the working documents.[19]
- [42]
- [43]
- [44]A difficultly of this sale is that it does not have direct access to the major road to which it has frontage, Kingston Road.[23] It was also sold unimproved,[24] such that site works would be required to bring it up to a comparable condition to the subject site. He did not produce any evidence of the cost of this other than, in cross-examination, saying that:
“I’ve spoken to Geordie – I can (sic) remember his last name, who’s the owner, the purchaser – Bluepoint, and what his estimate of those works were when he bought the site, which was approximately $200,000 of site works.
And did you get any documents from Geordie?‑‑‑No documents, no.
Do you have a note of your conversation with Geordie?‑‑‑No.“[25]
- [45]This conversation was :
“A long time ago when the sale occurred …”[26]
- [46]The sale occurred in August, 2014.
- [47]To rely on such an old memory of a particular fact, never committed to writing, would be fraught with risk of the recollection being unreliable, as suggested by the inability to recall the surname of the person said to have given the information. More significantly, there was no evidence of the professional application of knowledge of what the actual costs might have been expected to be for the work involved. This is knowledge commonly aired by valuers and may be based on available tables of costs and their own inquiries. It is not shown by evidence, but seems to have been assumed, that “Geordie” was a good and reliable source for the information attributed to him.
- [48]Information of this nature could and should have been shown by the valuer to have been validated by him in the exercise of his professional skill. Otherwise, he is doing no more than repeating an untested assertion. To rely on it, as he has done, has the result that the Court can not place any reliance on this sale and must refrain from doing so.
- [49]Sale 2 at 170 Bennetts Road, Norman Park, is described by Mr Murphy as “lightly improved”,[27] with a service station, retail area, mechanical workshop and parking area. It was sold with a tenant in place.
- [50]There is plenty of scope for errors when analysing the value of improvements,[28] and it is made more complex in this case as the property was sold with a tenant, so an income-producing business was sold along with the land. This would have required a careful analysis to reveal the site value. None was produced.
- [51]In view of the complex nature of what was sold and the absence of the analysis which can be examined by the Court, it could place no reliance on this sale as the site value is enmeshed in a sale with improvements and a business.
- [52]The site value has not been teased out in a way which the Court could have confidence in. The Court does not place any reliance on this sale.
- [53]Sale 3, the common sale, has the advantage that both valuers have analysed it to, effectively, the same rate per m2. Mr Murphy says $326 per m2 and Mr Groenendyk says $325 per m2. There is nothing to be gained by a more detailed examination of this sale than has already occurred as, in the appellant’s case, it now stands alone. It is a single sale at significant geographic remove from the subject site. It sold close to a year before the date of valuation when the market started to rise near the end of 2013.[29] It would not be a valid and reliable basis for the Court to attempt to find support for the appellant’s contended level of valuation in this one sale.
- [54]The Court is left in the situation described by the learned President in Edgarhead Pty Ltd v Valuer-General [2015] QLC 18.[30] Her Honour said:
“[46] I am left in the position, therefore, where there are insufficient sales of vacant or lightly improved properties to support the value applied to the subject land. As the High Court said in Maurici v Chief Commissioner of State Revenue:
A fair estimate [of the value of the subject land] could only be made here on the basis of a fair, that is to say, a reasonably representative group of comparable sales. A group of comparable sales cannot be representative if it does not go beyond sales of scarce vacant land.” (reference omitted)
- [55]The use of only one sale is not a sound basis for valuation.[31] The Court could not find the appellant’s case proved by any conclusion drawn from this sale alone.
Disposal of the appeal
- [56]The Court is not an investigating tribunal tasked with putting the respondent to proof of the valuation which has been issued. It must examine the evidence put before it and on the basis of that examination must conclude that the appellant has failed to establish its case. The appeal must therefore be dismissed.
- [57]Section 170 of the Act states that, in cases such as the present, the Court may confirm the valuation appealed against. This should not be misunderstood as an indication that the Court has investigated the respondent’s valuation and independently confirms it. It is rather the case that the appeal is dismissed as the appellant has failed to prove its case. If it is necessary that the Court order that the valuation is confirmed in the present case then it is so ordered and should be understood as has been indicated.
Orders
- The appeal is dismissed.
- The valuation appealed against is confirmed.
WA ISDALE
MEMBER OF THE LAND COURT
Footnotes
[1] NR & PG Tow v Valuer-General (1978) 5 QLCR 378, 381.
[2] Spencer v The Commonwealth (1907) 5 CLR 418. Fairfax v Department of Natural Resources and Mines [2005] QLC 11, [11], [12].
[3] Fischer v The Valuer-General (1983) 9 QLCR 44, 46. Barnwell v The Valuer-General (1990-91) 13 QLCR 13, 17. Grahn v Valuer-General (1992-93) 14 QLCR 327, 328-329.
[4] Valuer-General v Fenton Nominees Pty Ltd (1981-82) 150 CLR 160, 164.
[5] Ex 1 Tab 6 p. 9.
[6] Ex 1 Tab 5, p. 5 para 21.
[7] Ex 1 Tab 6, p. 8 para 23.
[8] T 1 – 36 L 5.
[9] T 1 – 36 L 21 – 39.
[10] T 1 – 36 L 25.
[11] T 1 – 43 L 39 – 41.
[12] T 1 – 43 L 43 – 45.
[13] T 1 – 44 L 3.
[14] T 1 – 44 L 5 – 6.
[15] Ex 1 Tab 6 p. 14 and p. 9 para 26.
[16] Murdesk Investments Pty Ltd v Roads Corporation [2006] VSC 363, [36]–[37], applying Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705, [85].
[17] Duffy v Minister for Planning [2003] WASCA 294, [26]–[33].
[18] T 1 – 73 L 41 – 46.
[19] T 1 – 47 L 41 – 43.
[20] T 1 – 48 L 1 – 15.
[21] T 1 – 49 L 25.
[22] T 1 – 47 L 1 – 3.
[23] T 1 – 45 L 3 – 4.
[24] T 1 – 46 L 24 – 25.
[25] T 1 – 1 – 49 L 39 – 46.
[26] T 1 – 50 L 2.
[27] Ex 1 Tab 5 p. 8.
[28] Clough v Valuer-General (1981-82) 8 QLCR 70, 76.
[29] Ex 1 Tab 6 p 9 para 26.
[30] [2015] QLC 18 at [46]. Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111, [18].
[31] Henderson v Shire of Liverpool Plains (1932) 2 The Valuer 179, 180 per Pike J. Referred to in Hayes v Chief Commissioner of State Revenue NSWLEC, (unreported) 28 November 2000, [28].