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Suncorp Metway Insurance Pty Limited v Valuer-General[2017] QLC 38

Suncorp Metway Insurance Pty Limited v Valuer-General[2017] QLC 38

LAND COURT OF QUEENSLAND

CITATION:

Suncorp Metway Insurance Pty Ltd v Valuer-General [2017] QLC 38

PARTIES:

Suncorp Metway Insurance Pty Limited

(appellant)

 

v

 

Valuer-General 

(respondent)

FILE NO/s:

LVA586-15

DIVISION:

General division

PROCEEDING:

Application for costs

DELIVERED ON:

2 August 2017

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 18 May 2016

HEARD AT:

Heard on the papers

MEMBER:

WL Cochrane

ORDER/S:

The respondent’s application for costs is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS costs – costs discretion under s 34 Land Court Act 2000 – costs in respect of interlocutory matters pursuant to Land Valuation Act 2010 – need to find unsatisfactory conduct to enliven costs jurisdiction under s 171(2) of the Land Valuation Act 2010

Land Court Act 2000, s 34

Land Valuation Act 2010, s 171(1), s 171(2)

Kent Street Pty Ltd v Department of Natural Resources and Mines (No 2) (2009) 30 QLCR 167

Mudie v Gainriver Pty Ltd & Anor [2003] 2 Qd R 271

APPEARANCES:

RJ Anderson QC (instructed by Otto Martiens lawyers) for the appellant

SP Fynes-Clinton of Counsel (instructed by In-house Legal, Department of Natural Resources and Mines) for the respondent

  1. [1]
    The appellant in this matter has appealed to this Court against the valuation imposed on land by the Valuer-General.
  1. [2]
    The appeal was brought on 15 December 2015, after the parties had participated in an objection conference pursuant to the provisions of the Land Valuation Act 2010 (“LVA”).
  1. [3]
    The first return date for the matter was set down on 8 February 2016 before her Honour President MacDonald.
  1. [4]
    Prior to that date, there had been dialogue between the solicitors for each party with respect to the possibility of a preliminary determination concerning whether certain buildings on the land were taken to be a non-site improvement for the purposes of section 19 of the LVA.
  1. [5]
    The appellant’s solicitors prepared a set of draft orders which were provided to the solicitors for the respondent.[1]
  1. [6]
    The parties were unable to agree about the draft order.
  1. [7]
    Accordingly, on that first return date, President MacDonald made orders including the following:[2]
  1. On or before 12 February 2016, the Appellant is to file an application pursuant to section 19(2) of the Land Court Rules 2000 (“the Application”) and serve the Application and a draft statement of agreed facts relevant to the application (“the Agreed Facts”) upon the Respondent.
  1. On or before 26 February 2016, the Respondent is to serve any amendments to the Agreed Facts on the Appellant.
  1. On or before 29 February 2016, the Appellant is to file and serve the Agreed Facts.
  1. On or before 4 March 2016, the Appellant is to file and serve any written submissions it wishes to have considered on the Application.
  1. On or before 18 March 2016, the Respondent is to file and serve and written submissions in reply.
  1. On or before the 24 March 2016, the appellant is to file and serve any written submissions in reply.
  1. The Application to be listed for hearing on a date to be fixed.
  1. [8]
    As can be seen from the terms of the order, her Honour allowed only four business days (with 8 February 2016 being a Monday) for the Appellant to file its application.
  1. [9]
    As evidenced by the affidavit of Ms Praser, there were ongoing communications between the parties, including emails and telephone calls, but agreement was unable to be reached as to the form of the question for preliminary determination.
  1. [10]
    Accordingly, the appellant, in conformity with the President’s orders, filed its application on 16 February 2016 and was allocated a hearing date of 4 May 2016.
  1. [11]
    That was one day later than contemplated by the order of 8 February 2016, but no point is taken in respect of that lateness.
  1. [12]
    Within the application which was filed, the applicant sought the following order:

“Pursuant to the Land Court Rule 19(2), the following question which arises on this appeal be determined separately from, and before, the time when the Court determines the remaining issues in the proceeding:

Is the constructed deck and building above Brisbane Central Station that is located within the confines of the land a non-site improvement for the purpose of section 19 of the Land Valuation Act 2010 (Qld)?”

  1. [13]
    Within the application, the appellant identified the following facts and circumstances and other relevant matters on which the application was based:

“Separate and earlier determination of the question the subject of this application will significantly narrow, and may resolve, the matters in dispute in the substantive Appeal in this matter.

The question proposed by the applicant/appellant is a discrete question of law. It is highly susceptible to agreement upon the facts by the parties, or will alternatively require very limited evidence to be placed before the Court for its determination. That evidence will go in large part to identifying the land.” 

  1. [14]
    Ms Praser’s affidavit says that on 15 February 2016, the solicitors for the appellant received an email from the solicitors for the respondent stating, inter alia, “the respondent is not in a position to agree to your form of separate question as proposed”.[3]
  1. [15]
    Reference to Exhibit UBP-6 to the affidavit of Ms Praser shows that, in fact, that document was received at 12.27pm on 12 February 2016.
  1. [16]
    One might assume that mistake was made because 12.27pm is a time in the early afternoon of Friday 12 February 2016, not a time early in the morning of 13 February 2016, which might have led to a view that service of that document had not been effected until the next business day, namely Monday.
  1. [17]
    Indeed that mistake is confirmed by the following email exhibited to Ms Praser’s affidavit, Exhibit UBP-4 (page 11), in which she says “your client’s response to our clients proposed form of the separate question was not provided to us until 12.27pm today”.
  1. [18]
    Ms Praser sent a further email to the Court 11 minutes later, at 4.42 pm on 12 February, identifying dates upon which their Counsel was available and informing the Court:

“we were to communicate with the respondent’s solicitors in the early part of this week following the directions hearing on Monday 8 February 2016, and revert to the court, but despite our best efforts on several occasions to illicit those dates from the respondent, we’ve not yet been informed of his counsel’s availability.”

  1. [19]
    A copy of that email was sent to the solicitors for the respondent.
  1. [20]
    The email to the Court provoked a response from the respondent’s solicitor at 5.22 pm on 12 February 2016 in which he notified both the Court and three of the solicitors acting for the appellant of the availability of the respondents’ Counsel.
  1. [21]
    An email from the solicitor for the respondent repeating that “accordingly, the respondent is not in a position to agree to your form of separate question as proposed” was sent on Monday 15 February 2016 at 10.48 am.
  1. [22]
    The solicitor for the respondent disputed that the respondent had been fully informed of the basis upon which the appellant proposed determination of a preliminary question.[4] That email stated:

“Regarding your statement that the issue is “well known to you”, with respect, I disagree. Our telephone conversation was brief and primarily related to the draft directions orders, namely, the disagreement on the issue of whether the parties exchange the written submissions or whether the Appellant provides its written submission and the Respondent provides a response. As to your statement that the issue was discussed “at considerable length before President MacDonald”, this is exaggerated. On my recollection the directions hearing lasted approximately 15 minutes, which involved you explaining the draft orders and the preliminary point question to be proposed in the Appellant’s application, response from me, comments from Her Honour and decision on the draft orders.

Putting that to one side, the Respondent has not received, other than your email dated 9 February 2016, any formal correspondence which clearly articulates the Appellant’s unique contention as stated in the notice of appeal and how and why the form of the separate question as proposed will significantly reduce the scope of dispute between the parties and assist the Court in the determination of the site value.”

  1. [23]
    It is sufficient to say that dialogue between the parties continued for some weeks until on 12 April 2016, without notice to the solicitors for the respondent, the appellant’s solicitors wrote to the Court saying:

“We have been liaising with the Respondent’s representatives seeking consent to the draft orders proposed by the Appellant (attached). The Respondent’s representatives are seeking instruction an, we expect, will respond shortly. The Appellant has proposed a somewhat truncated timetable as the parties are advanced in their preparation (this is at least so from the Appellant’s perspective) and certain absences of the Appellant’s experts across the next few months has been taken into account.

We wish to seek the Court’s indulgence to exercise its discretion to make orders on the papers to save the parties’ cots. However we appreciate his Honour may wish to hear further from the parties regardless of whether orders are agreed. The next return date is listed for 10am on 6 May 2016. We would be grateful if the Court would indicate if it is prepared to list the mater instead for later this week to hear from the parties should his Honour wish to. The Appellant is available to appear at His Honour’s convenience.”

  1. [24]
    That correspondence generated further correspondence to the Court from the Respondent’s solicitors in the following terms:[5]

“I refer to the email from the Appellant’s Solicitors dated 12 April 2016 which was sent at approximately 3.11pm in relation to the above matter.

The first communication I received from the Appellant’s Solicitors about the Appellant’s changed position was sent to me by email at 11am on 12 April 2016. I responded at 2.30pm indicating that I would seek instructions and advise the Respondents position as soon as possible.

Although I was copied with the email that was sent to you at 3.11pm, it was a unilateral communication by the Appellant’s Solicitors about substantive matters in the appeal which was not discussed with or disclosed to the Respondent prior to it being forwarded to the Court. It was not forwarded with the consent of the Respondent. I will be responding separately to the Appellant’s Solicitors to take objection to them proceeding in that way. The Respondent does not agree with the course of action foreshadowed by the Appellant or the draft orders which it now seeks.

Furthermore, the Appellant has not delivered a statement of facts, matters and contentions in compliance with order 2 of the Land Court Orders dated 22 March 2016.

The Respondent’s position is that the Court Orders made on 22 March 2016 stand and ought to be complied with unless those orders are vacated upon application properly made, on proper notice, with supporting material setting out the reasons why the Appellant no longer proposes to comply with orders to which it previously consented made in relation a General Application which it instigated.”

  1. [25]
    I set the matter down for hearing on 15 April 2016, at which time further orders were made, including orders relating to the submission made by the respondent that the appellant should pay costs of and incidental to the application made by the appellants, and set down for hearing on 4 May 2016.
  1. [26]
    Those orders included dismissal of the application, a direction that the appellant provide particulars of the grounds of appeal, disclosure by both parties together with inspection of relevant documents and notification of the names and areas of expertise of experts engaged by each of the parties, and a statement setting out the issues which were intended to be addressed by those experts.
  1. [27]
    In compliance with that order, the parties filed submissions in respect to the question of costs and in reply.
  1. [28]
    The issue now before the Court is whether the circumstances of the application and the conduct of the appellant is such as to warrant an order for costs being made against it.
  1. [29]
    In the respondent’s submissions it is alleged that the appellant’s conduct:
  1. “(a)
    bringing the GA in circumstances where it was never going to achieve its purported objective of shortening the trial of the appeal otherwise;
  2. (b)
    persisting with the GA in the face of a clearly stated position by the Respondent that the GA had no utility, and that costs would be an issue if it were unsuccessful or was ultimately shown to have no utility;
  3. (c)
    contravening the Court’s orders of 11 March 2016 and 22 March 2016 by failing to provide a statement of facts, matters and contentions in support of the application, by the date ordered (8 April 2016) or at all;
  4. (d)
    instead of remedying that breach, unilaterally deciding not to proceed with the Application without having filed or served any material in support of the relief sought, was unmeritorious and, in the relevant legal sense, frivolous and vexatious conduct which pointlessly delayed the progress of the appeal proper, and put the Respondent to unjustified trouble in terms of time and cost to respond to something which turned out to be nothing. Those matters make an award of costs appropriate.”[6]
  1. [30]
    So much is made clear by the list of circumstances set out in section 171(2) of the LVA and the use of the word “must” in section 171(1) of the LVA.
  1. [31]
    That sections provides:
  1. (1)
    Each party to a valuation appeal must bear the party’s own costs of the appeal.
  1. (2)
    However, the Land Court may make a costs order if it considers any of the following circumstances applies—
  1. (a)
    all or part of the appeal was frivolous or vexatious;
  1. (b)
    a party has not been given reasonable notice of intention to apply for an adjournment;
  1. (c)
    an applicant for an adjournment incurred costs because of the other party’s conduct;
  1. (d)
    a party incurred costs because the other party did not comply with the court’s procedural requirements;
  1. (e)
    without limiting paragraph (c), a party incurred costs because the other party introduced, or sought to introduce, new material;
  1. (f)
    a party did not properly discharge the party’s responsibilities for the appeal.
  1. (3)
    In this section—

costs includes witness allowances for attending to give evidence.

  1. [32]
    Section 171(2) of the LVA is expressed in permissive terms and identifies the six circumstances in which this Court can exercise its discretion to make an order for costs.
  1. [33]
    That section must be read in the context of section 34 of the Land Court Act 2000 that provides:
  1. (1)
    Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
  1. (2)
    If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.
  1. [34]
    The decision of the Land Appeal Court in Kent Street Pty Ltd v Department of Natural Resources and Mines (No 2)[7], to my mind, clarifies the issue with respect to the capacity of this Court to consider costs applications in the context of interlocutory matters.
  1. [35]
    In any event, neither party has made a submission challenging the capacity of this Court to make such cost orders.
  1. [36]
    Any review of a number of decisions made by this Court with respect to costs reveals a long standing disinclination to award costs other than in exceptional circumstances.
  1. [37]
    The respondent contends that one of the bases upon which I should exercise my discretion to award costs in its favour is that the general application brought by the appellant is vexatious.
  1. [38]
    That is to say, as is set out by the respondent in its written submissions relying on the decision of the Queensland Court of Appeal in Mudie v Gainriver Pty Ltd & Anor[8] that a proceeding or part of a proceeding is vexatious is “productive of serious and unjustified trouble and harassment.”[9]
  1. [39]
    To succeed on that ground, the respondent needs to demonstrate to my satisfaction that it is put to “serious” and “unjustified” trouble and harrassment.
  1. [40]
    I do not regard the conduct of the appellant in seeking to have a preliminary point determined in circumstances where it contended originally that such a process may produce a result which could be determinative of the whole of the appeal.
  1. [41]
    Indeed, much of the toing and froing in the correspondence and communication between the parties prior to the hearing of the general application was focused on trying to get agreement from the respondent about the relevant facts and circumstances which may have underlain the facts which it was hoped would emerge in the determination of the preliminary point.
  1. [42]
    The respondent submits, however, that:

“Conducting an aspect of adversarial litigation in that way is wholly unmeritorious. If the appellant had properly thought through the utility questioned raised by the respondent on 4 and 10 March 2016 before it filed the general application and caused the respondent to incur costs to respond to it, as the appellant should have done before filling, the general application would not have been brought.”[10]

  1. [43]
    I am not convinced that is correct.
  1. [44]
    In withdrawing the general application, the appellant, in the affidavit of Ms Praser, explains that one motivating factor in the withdrawal was the inability to achieve agreement as to facts with the respondent.
  1. [45]
    It seems on the material before me, including the matter set out in the affidavit of Ms Praser, that there was a prospect of the appellant and the respondent reaching agreement about matters of fact which may have underlain determination of the preliminary point.
  1. [46]
    The affidavit of Ms Praser observes:[11]

“22 Since 22 March 2016, the Appellant has been preparing its detailed statement of facts, matters and contentions in its affidavit material, pursuant to the order made by the Court that day.

23 However, over the period since the last return date, and despite the Appellant’s continuing belief that the resolution of the question whether the buildings support structure is a non-site improvement of the volumetric lot is imperative to the Appeal and an appropriate matter for preliminary determination, it has become rapidly apparent that the utility and benefit to the parties and the Court in determining that question separately from the appeal generally is being lost.”

  1. [47]
    Impliedly, those observations refer to the failure by the respondent to advise in a timely way of their attitude towards the preliminary question.
  1. [48]
    She continues:

“24 As the parties have not been able to agree basic certain facts, the need to obtain advice from engineers, surveyors and the valuer appears to me to mean that the parties will likely be required to engage in a multi-day hearing to resolve an issue that will not of itself resolve the entire appeal.”[12]

  1. [49]
    As to the matter of frivolity as referred to in section 172(2)(a) of the LVA the respondent says the unilateral withdrawal of the general application demonstrates that it should be seen as something having no merit or utility.
  1. [50]
    The respondent says:

“The Appellant’s conduct in bringing it, initially pressing it, then unilaterally  abandoning it, without delivery of either a pleading of evidence in support of the relief claim establishes that the GA had no worth, meets the test for frivolity, and again means that there is not discretionary reason why costs should not be ordered.”[13]

  1. [51]
    I cannot come to the view that a party bringing an application, explaining in correspondence to the respondent to that application the purpose for it and seeking agreement to establish an agreed set of facts, can be seen as behaving frivolously.
  1. [52]
    Such conduct does not mean that the bringing of the application was doomed to failure, which must be demonstrated for an application to meet the description of frivolous.
  1. [53]
    The respondent next alleges that:

“the failure by the appellant to provide a statement of facts, matters and contentions in accordance with either the Court’s initial order of 11 March 2016 or in the extended timeframes allowed by the order of 23 March 2016 involved total non-compliance with the Court’s orders”[14]

as contemplated by section 171(2)(d) of the LVA.

  1. [54]
    Counsel for the respondent goes on to describe that non-compliance as being the consequence of a unilateral decision.
  1. [55]
    Failure to comply with a Court order is rarely a bilateral matter.
  1. [56]
    It is true to say that the failure to comply with the Court order, particularly one made by consent, is a procedural default.
  1. [57]
    I am not, however, satisfied that procedural default is of a sufficiently serious nature to warrant an order for costs being made against a party. There is no suggestion that the appellant was not trying to advance its case. Indeed the respondent itself on 17 February 2016 sought an enlargement of earlier orders which had been made requiring action by the respondent on the basis that the respondent’s counsel was occupied with an unrelated trial commencing in the week of 26 February 2016, which apparently interfered with the respondent’s capacity to comply with orders made.[15]
  1. [58]
    Ms Praser’s affidavit, which was not sought to be contradicted by the respondent, identifies other examples of tardiness by the respondent.
  1. [59]
    The respondent goes on to rely as well on the provisions of section 171(2)(f) of the LVA which relates to a party not properly discharging that party’s responsibilities for an appeal. The respondent bases this aspect of its submissions on its assertion that the general application was ultimately shown to have no utility. In its submissions the respondent says as follows:

“No lengthy submission is required under this heading. By:

  1. (a)
    filing the GA which was ultimately shown to have no utility;
  1. (b)
    causing the Respondent to incur costs to respond to the GA, including after the Respondent had squarely put the Appellant on notice that the GA had no utility;
  1. (c)
    delaying the progress of the appeal proper from 18 February 2016 to 15 April 2016 as a result of filing and initially pressing the GA;
  1. (d)
    failing to comply with the orders of the Court to provide a statement of facts matters and contentions and affidavit evidence in support of the relief claimed in the GA;
  1. (e)
    unilaterally deciding not to proceed with the GA,

The appellant has engaged in conduct inimical to:

  • the “just and expeditious resolution of the real issues in [the appeal] at a minimum of expense”;
  • “avoiding undue delay, expense and technicality”; and
  • the obligation to “proceed in an expeditious way”.”[16]
  1. [60]
    The application was, as pointed out above, filed on 16 February 2016 after which time there was continuous dialogue between the parties as to the utility of the proposed preliminary question. Some of that dialogue is set out earlier in this decision.
  1. [61]
    It is clear that, ultimately, the respondent did come to the view that the proposed preliminary question probably lacked utility but the view of the respondent is not the sole determining factor in an application for the determination of a preliminary point. The Court may take a contrary view and direct that some yet to be properly framed question be the subject of preliminary determinations.
  1. [62]
    In appeals such as this, each of the parties has an obligation to the Court, as well as an obligation to properly represent its clients’ interests.
  1. [63]
    There has been no suggestion that either party to this appeal was not diligently trying to represent its clients’ interests as best it could.
  1. [64]
    The filing of an application which is ultimately withdrawn or dismissed does not, in my view, constitute a failure to discharge a party’s responsibilities for an appeal.
  1. [65]
    In all of the circumstances, I am unable to accept the propositions advanced by the respondent as warranting my exercising my discretion to award costs of the application in the respondent’s favour.
  1. [66]
    Accordingly, the application by the respondent is dismissed.

Order

  1. [67]
    Therefore, the order of the Court is:

The respondent’s application for costs is dismissed.

WL COCHRANE

MEMBER OF THE LAND COURT

Footnotes

[1]  Affidavit of Usha Birgit Praser filed 15 April 2016, para 5.

[2]  Affidavit of Usha Birgit Praser filed 15 April 2016, Ex UBP-3.

[3]  Affidavit of Usha Birgit Praser filed 15 April 2016, para 13.

[4]  Affidavit of Usha Birgit Praser filed 15 April 2016, Ex UBP-6, page 14.

[5]  Affidavit of Usha Birgit Praser filed 15 April 2016, Ex UBP-13.

[6]  Respondent’s Submissions, para 3.

[7]  (2009) 30 QLCR 167.

[8]  [2003] 2 Qd R 271.

[9] Mudie v Gainriver [2003] 2 Qd R 271 at 284. See also the discussion in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 [247] and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

[10]  Respondent’s Submissions, para 18.

[11]  Affidavit of Usha Birgit Praser filed 15 April 2016, para 22 and 23.

[12]  Affidavit of Usha Birgit Praser filed 15 April 2016, para 24.

[13]  Respondent’s Submissions, para 21.

[14]  Respondent’s submissions, para 22.

[15]  Affidavit of Usha Birgit Praser filed 15 April 2016, para 15.

[16]  Respondent’s Submissions, para 25.

Close

Editorial Notes

  • Published Case Name:

    Suncorp Metway Insurance Pty Ltd v Valuer-General

  • Shortened Case Name:

    Suncorp Metway Insurance Pty Limited v Valuer-General

  • MNC:

    [2017] QLC 38

  • Court:

    QLC

  • Judge(s):

    Member Cochrane

  • Date:

    02 Aug 2017

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
Kent Street Pty Ltd v Department of Natural Resources and Mines (2009) 30 QLCR 167
2 citations
Jump To
Cite 1 - (2009) 30 QLCR 167
Cite 2 - (2009) 30 QLCR 167
Mudie v Gainriver Pty Ltd[2003] 2 Qd R 271; [2002] QCA 546
3 citations
Jump To
Cite 1 - [2003] 2 Qd R 271
Cite 2 - [2003] 2 Qd R 271
Cite 3 - [2003] 2 Qd R 271
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
1 citation
Jump To
Cite 1 - (1988) 165 CLR 197
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
1 citation
Jump To
Cite 1 - (1990) 171 CLR 538

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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