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GPT RE Limited v Valuer-General (No. 3)[2019] QLC 8

GPT RE Limited v Valuer-General (No. 3)[2019] QLC 8

LAND COURT OF QUEENSLAND

CITATION:

GPT RE Limited v Valuer-General (No 3) [2019] QLC 8

PARTIES:

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

(appellant)

v

Valuer-General

(respondent)

FILE NO:

LVA106-14

DIVISION:

General division

PROCEEDING:

Applications for costs

DELIVERED ON:

21 February 2019

DELIVERED AT:

Brisbane

HEARD ON:

15 June 2018

Submissions closed 31 July 2018

HEARD AT:

Brisbane

MEMBER:

PA Smith

ORDERS:

As regards GPT’s application for costs with respect to the 304 George Street sale issue:

  1. The Valuer-General pay GPT’s costs of and incidental to the issue of the 304 George Street sale, to be assessed on an indemnity basis.
  2. The quantum of the costs in Order 1 is to be as agreed between GPT and the Valuer-General or, failing agreement, to be assessed.

As regards GPT’s application for costs with respect to costs arising out of the preliminary point interlocutory proceeding:

  1. GPT’s application for costs is dismissed.
  2. Each party pay their own costs of and incidental to the preliminary point interlocutory proceeding.

CATCHWORDS:

REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – COSTS – where the Land Court allowed the appeal – where costs of interlocutory application were reserved – where parties generally bear their own costs – where the Court has discretion to award costs under s 171 Land Valuation Act 2010 – where the Court’s discretion to award costs is unfettered – whether model litigant principles are relevant – whether frivolous or vexatious conduct is a prerequisite to fail to discharge a party’s responsibility in an appeal – whether absence of explanation for breach is taken into account in awarding costs – where a party’s arguments for discharging its responsibilities are insufficient – where the respondent’s conduct directly caused the appellant additional costs

REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – COSTS – where appellant seeks costs on an indemnity basis for appeal costs and interlocutory proceedings – where appellant alleges the respondent’s conduct was frivolous or vexatious – where appellant alleges in the alternative the respondent did not properly discharge its responsibilities – where appellant alleges general application costs can be awarded pursuant to s 34 Land Court Act 2000 – where respondent contends Land Court Act cannot apply due to construction of the statute – where Valuer-General has obligations under Public Service Act 2008 – where respondent argues two different methodologies for same sale – where appellant fails to provide detailed costings for costs sought

Land Court Act 2000 s 34

Land Valuation Act 2010 s 155, s 167, s 171

Ashmore v British Coal Corporation [1990] 2 QB 388, cited

Brisbane Square Pty Ltd v Valuer-General [2015] QLC 40, applied

Brisbane Square Pty Ltd v Valuer-General [2016] QLC 69, considered

Copley v Logan City Council & Anor [2012] QPELR 643; [2012] QPEC 43, considered

Ebis Enterprises Pty Ltd v Sunshine Coast Regional Council [2011] QCA 15, considered

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, cited

Gauci Developments (Qld) Pty Ltd v Bundaberg City Council [2008] QPEC 8; [2009] QPELR 123, applied

GPT RE Limited v Valuer-General (2015) 36 QLCR 133; [2015] QLC 14, cited

GPT RE Limited v Valuer-General (No 2) [2018] QLC 9, considered

Kent Street Pty Ltd v Department of Natural Resources and Mines (No 2) (2009) 30 QLCR 167; [2009] QLAC 7, followed

Mudie v Gainriver Pty Ltd (No.2) [2003] 2 Qd R 271; [2002] QCA 546, followed

Reed v Department of Natural Resources and Mines & Ors (2014) 35 QLCR 1; [2014] QLC 1, applied

Reed v QCoal Sonoma Pty Ltd & Ors (2014) 3 QLCR 324; (2014) 203 LGERA 438; [2014] QLAC 8, applied 

The Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, applied

Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12, cited

Williams v Department of Environment and Resource Management (2014) 35 QLCR 569; [2014] QLAC 10, applied

YFG Shopping Centres Pty Ltd as TTE v Valuer-General [2017] QLC 11, applied

APPEARANCES:

RN Traves QC (instructed by Clayton Utz) for the appellant

DB Fraser QC with SP Fynes-Clinton (instructed by In-house Legal, Department of Natural Resources, Mines and Energy) for the respondent

Background

  1. [1]
    GPT appealed against the Valuer-General’s valuation of GPT’s land situated at 123 Eagle Street, Brisbane. This Court allowed the appeal.[1]
  1. [2]
    GPT now seeks an order that the Valuer-General pay one-third of GPT’s costs of and incidental to the appeal to be assessed on an indemnity basis. Alternatively, GPT seeks an order that the Valuer-General[2] pay GPT’s costs of and incidental to the issue of the 304 George Street sale, on an indemnity basis.
  1. [3]
    In addition, GPT, by an earlier application, seeks orders as to costs against the Valuer-General relating to a preliminary point determined by the Court as an interlocutory step well prior to the actual trial. I will deal with the issue of costs arising from the preliminary point after dealing with GPT’s application for costs relating to the 304 George Street sale issue.
  1. [4]
    The Valuer-General strenuously opposes all the orders sought by GPT.
  1. [5]
    The issues for my consideration in these costs applications can be encapsulated in the following:
  1. Costs of the appeal:
  1. Whether s 171(2) of the Land Valuation Act 2010 is enlivened;
  2. How the Court’s discretion is to be applied;
  3. Whether costs should be ordered on the indemnity basis; and
  4. What quantum of costs, if any, should be ordered.
  1. Costs application regarding the interlocutory proceedings:
  1. Whether the Land Court Act 2000 or the Land Valuation Act 2010 is the appropriate legislative scheme to bring a costs application in interlocutory land valuation matters; and
  2. Whether s 171(2) of the Land Valuation Act 2010 is enlivened.

The legislation

  1. [6]
    Section 171 of the Land Valuation Act 2010 (‘LVA’) provides as follows:

171 Costs

  1. (1)
    Each party to a valuation appeal must bear the party’s own costs of the appeal.
  2. (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;
  2. (b)
    a party has not been given reasonable notice of intention to apply for an adjournment;
  3. (c)
    an applicant for an adjournment incurred costs because of the other party’s conduct;
  4. (d)
    a party incurred costs because the other party did not comply with the court’s procedural requirements;
  5. (e)
    without limiting paragraph (c), a party incurred costs because the other party introduced, or sought to introduce, new material;
  6. (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. [7]
    As President Kingham put it in YFG Shopping Centres Pty Ltd as TTE v Valuer-General,[3] the starting point is that each party to an appeal must bear the party’s own costs of the appeal.  The Court however, has a discretion to award costs in specified circumstances. The jurisdiction to award costs is enlivened if one or more of those circumstances in s 171(2) is made out.

Is s 171(2) LVA enlivened?

  1. [8]
    The first issue to be addressed is whether the jurisdiction of this Court to award costs has been enlivened, and that, in turn, depends on whether any of the circumstances in s 171(2) apply.
  1. [9]
    GPT contends that the conduct of the Valuer-General in failing to act consistently with the manner in which it acted in the Brisbane Square Pty Ltd v Valuer-General case (‘Brisbane Square’);[4] in failing to accept the analysis of the sale by the Court in Brisbane Square; and in advancing and persisting with Mr Hart’s analysis of the sale of 304 George Street, was:
  1. (a)
    frivolous and vexatious within the meaning of s 171(2)(a); and, or
  1. (b)
    such that it was not a proper discharge of the party’s responsibilities for the appeal within the meaning of s 171(2)(f).
  1. [10]
    As regards frivolous and vexatious, there is ample relevant authority to refer to. A key starting case is that of Mudie v Gainriver Pty Ltd (No.2) (‘Mudie’).[5]  I note that Mudie was specifically considered by the Court of Appeal in Ebis Enterprises Pty Ltd v Sunshine Coast Regional Council[6] where the following passages from Mudie were repeated:

(from the joint judgment of McMurdo P and Atkinson J)

“[35] The words ‘frivolous or vexatious’ are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process. By the time an application for costs is made, the court knows the issues which have been litigated whilst a interlocutory applications, the court must to some extent speculate and must necessarily be cautious to ensure a deserving claimant is not unjustly deprived of the opportunity of a trial of the action. The Macquarie Dictionary defines ‘frivolous’ as ‘of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection. 2. characterised by lack of seriousness or sense: frivolous conduct …’ and ‘vexatious’ as ‘1. causing vexation; vexing; annoying …’.

[36] Unquestionably, something much more than lack of success needs to be shown before a party’s proceedings are frivolous or vexatious. Although in a different context, some assistance can be gained from the discussion of the meaning of these words in Oceanic Sun Line Special Shipping Company Inc v Fay where Deane J states that “oppressive” means seriously and unfairly burdensome, prejudicial or damaging and ‘vexatious’ means productive of serious and unjustified trouble and harassment, meanings apparently approved by Mason CJ. Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd. Those meanings are apposite here.

[37] Whether proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy considerations and the interests of justice.” (citations omitted)

(from the judgment of Williams JA)

“[59] For the appellant to succeed the court must be satisfied that the appeal to the Planning and Environment Court was ‘frivolous or vexatious’ within the meaning of those words in the section of the legislation empowering the court to make an order for costs. Each word is used in everyday language and there is little doubt as to the ordinary meaning of each. The Shorter Oxford English Dictionary defines ‘frivolous’ as follows:

‘1. Of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds. 2. Lacking seriousness or sense; silly.’

That work defines ‘vexatious’ as follows:

‘1. Causing or tending to cause vexation, annoyance, or distress; annoying, troublesome. 2. In law. Of an action; instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant.’

[60] So far as the law is concerned the terms have been incorporated into rules of court as a ground upon which a claim may be struck out summarily. If a proceeding discloses no viable cause of action it can be struck out as being frivolous or vexatious. In consequence something of a gloss has been superimposed upon the ordinary meaning of each word when used in that context. But when the terms are not used in the context of striking out a claim which is groundless that gloss is no longer relevant and one must revert to the ordinary meaning of each word. But that is not to say that cases dealing with the striking out of an action on the ground that it was frivolous and vexatious are entirely irrelevant. Dixon J in Dey v Victorian

Railways Commissioners (1949) 78 CLR 62 at 91 said:

‘The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims’.”

  1. [11]
    The next case to consider is that of Reed v QCoal Sonoma Pty Ltd & Ors.[7] In that case, the Land Appeal Court, after quoting from Mudie, Ebis and other cases, had this to say:

“[36] From the foregoing the following may be drawn. For public policy reasons the relatively unfettered discretionary power to award costs found under provisions such as s 34 of the Land Court Act 2000 or the rules of the Supreme Court is absent in proceedings in the Land Court under the Act. Rather it is controlled by s 882(3), ordinarily each party must bear its own costs. However s 882(4) does give the Land Court a discretionary power, “the court may order costs”, in the circumstances provided by s 882(4)(a) to (g) inclusive. As the judgments in Mudie and Stevenson recognise that discretionary power is not necessarily liberally or energetically exercised even though the circumstances may suggest that an appeal or part thereof may have been “frivolous or vexatious”. The consideration of whether a proceeding is “frivolous or vexatious” is primarily one of fact, upon which minds might reasonably differ. Moreover the certain “judicial reluctance” to find proceedings “frivolous or vexatious” reflects the concern that the threat of crippling costs may deter persons from applying to the court and also the public interest character of some proceedings in courts such as the Land Court or the Planning and Environment Court.”

  1. [12]
    I now turn to consider s 171(2)(f) – a party did not properly discharge the party’s responsibilities for the appeal.
  1. [13]
    The key case to consider in this regard is the Land Appeal Court decision of Williams v Department of Environment and Resource Management (‘Williams’).[8] Williams related to a costs application under ss 882(3) and 882(4) of the Water Act 2000, which is in very similar language to s 171 of the LVA. For example, the relevant circumstance listed by s 882(4)(g) as enlivening the discretion to award costs is “a party to the appeal does not properly discharge its responsibilities in the appeal”.  Justice Henry, with whom MacDonald P agreed, relevantly had this to say:

“[73] The initial decision required an application of the criteria listed in s 210 of the Water Act. To have proper regard to the considerations therein the respondent was supposed to consider, inter alia, information about the effects of taking water on the physical integrity of water courses and aquifers. Interconnectivity was therefore relevant information. If such information was as important as the respondent represented it was in the appeal below then it must have been of equal importance at the time of the initial decision. While the appeal below was a hearing de novo and the department was fully entitled to freshly gather and use evidence not in its possession at the time of its initial decision, it was not a party coming to this matter afresh. It should already have been well armed with the information needed to consider the s 210 criteria. If it was performing its statutory duties correctly that is the same information it needed at the time of the initial decision.

[74] That context informs the nature of the respondent’s responsibilities in this appeal, as does the expectation the respondent should have behaved as a model litigant. The respondent had an obligation from the outset of the appeal to promptly finalise the gathering of any further relevant evidence and delay no further. If as part of that process it were to engage an expert, its obligation was to ensure that it promptly engaged an appropriately professional expert, equipping that expert with the means of promptly gathering any further relevant information and promptly providing an expert report. In so doing and announcing to the appellants that the expert so engaged would be its expert in the proceeding, the respondent had a responsibility to thereafter behave consistently with that representation.

[75] By thereafter changing experts in the proceeding the respondent did not behave consistently with that responsibility. The respondent did not properly discharge its responsibilities in the appeal.

[76] That conclusion is a circumstance listed in s 882(4)(g). It is a conclusion so clearly compelled by the evidence before the learned presiding member that the learned member erred in not concluding that circumstance was present. It follows the learned member erred in not finding his discretion to order costs for the appeal pursuant to s 882(4) was enlivened by reason of that circumstance.

[77] The above reasoning identifies s 882(4)(g) as the relevant circumstance enlivening the discretion. The appellants also relied on s 882(4)(b) and (f) as relevant. For completeness I note that the above criticised conduct is not frivolous or vexatious within the meaning of s 882(4)(b)…” (citations omitted)

  1. [14]
    A number of points arise from Williams. To begin with, whether or not orders for costs should be made, even if circumstances exist as specified by the legislation, remains a matter of discretion. A failure by a party who has an obligation to act as a model litigant is a relevant factor to take into account in exercising that discretion. Also relevant is the impact that such failure had on the other party and the costs they incurred as a result in running their case. It is also noteworthy that a party does not have to act frivolously or vexatiously to fall foul of the requirement to act in such a way as to properly discharge the party’s responsibilities for the appeal.

Determination on whether s 171(2) is enlivened

  1. [15]
    The mischief in this regard is that the Valuer-General has adopted two different methodologies in cases put before this Court in analysing the same sale (304 George Street). Those different valuation cases are of course Brisbane Square and the current case. Both cases involved Brisbane CBD properties. Both properties had burdened and unburdened areas. The 304 George Street sale had burdened and unburdened areas, yet, Mr Hart, in producing his two valuation reports at essentially exactly the same time, chose only to use a burdened/unburdened methodology in the current case and not in the Brisbane Square case.  The outcome of Mr Hart’s approach in both matters was startling. By adopting different methodologies, he was able to arrive at valuations for each case at about the unimproved valuation determined by the Valuer-General. As I pointed out in GPT (No 2), had Mr Hart adopted the same methodology in Brisbane Square as he did in the current case, his Brisbane Square valuation would have been in the order of $53–54 million, while his actual valuation was $60 million and the issued valuation was $58.9 million.[9]
  1. [16]
    I have carefully read the submissions of the parties as to costs a number of times. I can only conclude that the Valuer-General has failed to appreciate the force of my conclusions on the model litigant point, where I had this to say:

“[167] … Leaving to one side entirely the question of relativity as between valuations, the actions of the Valuer-General do not meet the lofty standards of fairness set by Chief Justice Griffith in Moorehead. In my view, the Crown has an overriding responsibility to act fairly in issuing and defending valuations, which extends to the Crown analysing the same sale in different cases for valuation purposes under the same legislation (being the LVA) in the same way. This is a duty that the Crown should exercise, even where its own expert arrives at two different analysed figures for the same sale, at almost an identical date (as was the case with Mr Hart’s analyses of 304 George Street in Brisbane Square and in this case, those analyses being made within days of each other by Mr Hart in February 2016).” (citations omitted)

  1. [17]
    It is not good enough for the Valuer-General to now say, as it asserts in its submissions, that the mischief of it infringing the model litigant principles was at the lower end of the scale. It is also not appropriate to dismiss the conduct as having occurred in another case. The same conduct occurred in, and had direct consequences on, the present case. Of course, it is true that the methodology contended for by Mr Hart for the 304 George Street sale as a comparator for the subject land was ultimately accepted by the Court. That, though, was the only part of Mr Hart’s evidence as to his valuation of 304 George Street which was accepted, save of course for those points on which he was in agreement with Mr Jackson, the valuer engaged by the appellant.
  1. [18]
    There is no doubt in my mind that the Valuer-General’s conduct in the current case caused GPT additional costs because of the need for GPT to look much more closely than would have otherwise been required into the Brisbane Square determination and the inconsistencies in Mr Hart’s valuation approach.  These additional costs incurred by GPT are as a direct result of the Valuer-General failing in this case to meet the standards set by The Melbourne Steamship Co Ltd v Moorehead.[10] The Valuer-General has acknowledged for the purposes of its costs submissions that it failed to meet those standards.[11]  Consistent with Williams, although on the facts to a lesser degree than that case, the Valuer-General did not properly discharge its responsibilities for the appeal. It follows that s 171(2)(f) is enlivened.
  1. [19]
    There is another reason to enliven s 171(2)(f). As GPT has pointed out, the Office of the Valuer-General is established by s 205(1) of the LVA. Subject to ss 206 and 211 (which are not relevant in the present context) the Valuer-General is employed under the Public Service Act 2008.[12] Section 26 of the Public Service Act recognises that public service employment involves public trust and deals with work performance and personal conduct principles. Section 26(h) includes an obligation to act fairly and in the public interest.  I agree with GPT that s 171(2)(f) of the LVA is broad enough to include compliance with the statutory obligations upon the Valuer-General under the Public Service Act.
  1. [20]
    Having found that s 171(2)(f) is enlivened, it is not necessary for me to determine whether or not s 171(2)(a) is enlivened. However, applying the judgment of McMurdo P and Atkinson J from Mudie that “whether proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy considerations and the interests of justice”,[13] on balance, it is my view that, as the public policy considerations and the interests of justice involve much of the same considerations as I have taken into account in my reasoning as regards s 171(2)(f), and given those same facts and that same reasoning, it follows that s 171(2)(a) is also enlivened. 

Application of the Court’s discretion

  1. [21]
    Sections 171(2)(a) and (f) having been so enlivened, is it appropriate to exercise my discretion and make an order for costs in favour of GPT?
  1. [22]
    My discretion to award costs is unfettered. Such discretion is, however, informed by the exercise of discretion by courts in other matters of a like nature. Turning again to Mudie, McMurdo P and Atkinson J relevantly had this to say at [42]:

“Once it is established a party's conduct of proceedings is frivolous or vexatious, there is an unfettered discretion to award costs, which this Court should now exercise. We can see no basis for distinguishing between the conduct of the developer or the Council in these proceedings. The appellant is deserving of a costs order in her favour to compensate her for the additional expense to which she has been put because of the respondents' vexatious and oppressive conduct of the proceedings. On the other hand, the appellant did not succeed on a number of issues and could have better clarified and refined the real issues in the case at an earlier stage. The respondents have had the benefit of an order that each party bears its own costs of the substantive six day hearing. On the material before us, this Court should not interfere with that order. In all the circumstances, the respondents

should pay the appellant's costs of and incidental to all remaining appearances in the Planning & Environment Court in proceedings No 1387 of 1997.”

  1. [23]
    I also note what Justice Henry had to say in Williams under his heading of “Exercise of discretion”:

“[79] The presence of a circumstance in s 882(4) does not automatically justify the making of an order as to costs. Its consequence is that the Land Court ‘may order costs … as it considers appropriate’ in circumstances where ‘a party does not properly discharge its responsibilities in the appeal’.

[80] Consideration of the cost consequences of the respondent’s conduct is logically relevant to whether and to what extent that discretion ought be exercised. This follows from s 882(4)’s language linking the discretion with the circumstances through the words ‘as it considers appropriate in the following circumstances.’

[81] Whereas the parties were clearly headed towards a common ground position about the issue of connectivity before the abandonment of Mr Lait, that position unravelled into a contest. Such a contest would not have been necessary had the respondent continued with Mr Lait as its expert witness. Had that occurred there would have been substantial evidentiary common ground about the hydro-geological consequences of pumping water from a bore drilled into the aquifer underlying the Williams property. It is likely that the parties acting reasonably would not have contested this aspect of the matter. Instead, as a result of the respondent’s conduct, there was a contest about this aspect, with an inevitably significant cost consequence for the appellants.”

  1. [24]
    I agree with the Valuer-General that it cannot be said in the current case that the actions of the Valuer-General precluded the parties moving towards common ground, as was the case in Williams. However, the different positions adopted by Mr Hart in Brisbane Square and the current case, relied on by the Valuer-General, certainly complicated the valuers joint expert report and made areas of agreement which may have otherwise arisen between the valuation experts as to the 304 George Street sale very difficult indeed.
  1. [25]
    In exercising my discretion, I cannot ignore the comments that I made specifically with respect to the 304 George Street sale in my decision.[14]  Bearing in mind that the Valuer-General strenuously relied upon Mr Hart’s evidence in support of its case as to the correct valuation for the subject property in this matter, the criticisms that I make of Mr Hart’s evidence flows through to the Valuer-General.
  1. [26]
    It is the Valuer-General, not Mr Hart, who breached the model litigant principles. It is the Valuer-General, not Mr Hart, against whom a costs order is sought as a direct consequence of that breach. The breach has been established, s 171(2) has been found to be enlivened, and the evidence of Mr Hart as regards the 304 George Street sale has been severely criticised by this Court. In all of the circumstances, I consider it appropriate to exercise my discretion to award costs to GPT, payable by the Valuer-General for the 304 George Street sale issue.

Should costs be ordered on the indemnity basis?

  1. [27]
    The next question to be answered is whether or not such costs should be ordered on the indemnity basis. In this regard I turn again to Williams and the judgment of Henry J:

“[87] As to whether those costs ought be on the standard or indemnity basis they should at the very least be on the standard basis. Is it appropriate to uplift them to the indemnity basis? The discretion enlivened is the ordering of such costs as are considered appropriate in the relevant circumstances in s 882(4). It follows the court is not precluded from ordering costs on the indemnity basis, although, consistently with general principles as to costs, that ought only occur if there is some special or unusual feature in the circumstances to justify a departure from the usual course of ordering costs on the standard basis. There are some obvious similarities between the list of circumstances in s 882(4) and the examples in the cases of circumstances which have warranted indemnity costs orders. It is therefore unsurprising that the exceptional feature of the respondent’s conduct as a litigant which enlivened the discretion to award costs under s 882(4) is the same feature which in my view warrants a departure from the ordinary course of ordering costs on the standard basis.

[88]… The respondent proffered no explanation below or in this court for its conduct. Obviously it had a tactical change of heart and decided the evidence of its nominated expert did not suit the case it wanted to run and it put that partisan consideration ahead of its responsibilities as a litigant.

[89] Such conduct, which had very significant cost ramifications for the appellant, warrants a departure from the usual course of ordering costs on the standard basis. The costs to be ordered should be on the indemnity basis.” (citaions omitted)

  1. [28]
    In the circumstances of the case at hand, just like in Williams, the party against whom a cost order is to be made has offered no explanation below or in this Court for its conduct in not upholding its role as a model litigant. Of course, the Valuer-General is under no obligation to offer any such explanation. However, the absence of any explanation is, in itself, a factor to take into account in exercising my discretion as to whether or not the costs should be awarded on an indemnity basis. The Valuer-General contends in its submissions that there was nothing tactical about its approach to the methodologies it put forward as appropriate for the determination of Brisbane Square and the current case by relying upon Mr Hart’s evidence. GPT contends that the only sensible reason was that the different methodologies suited the outcomes contended for by the Valuer-General in the different cases. I of course cannot know what the motivation of the Valuer-General may have been, but it would be remiss of me not to take into account the undisputed fact that those different methodologies did support very neatly the Valuer-General’s contention as to valuation in each matter, whereas, had a consistent methodology been adopted by the Valuer-General, the same could not be said to be true.
  1. [29]
    Applying the reasoning of Justice Henry, it is again unsurprising that the respondent’s conduct as a model litigant, which enlivened the discretion to award costs, is the same feature which warrants a departure from the ordinary course of ordering costs on the standard basis. The Valuer-General’s conduct had cost ramifications for GPT, warranting a departure from the usual course of ordering costs on the standard basis. The appropriate order is that costs be payable on an indemnity basis consistent with Williams.
  1. [30]
    I must stress that the making of such a costs order is in no way designed to punish the Valuer-General. The making of such a costs order is simply to lessen the costs burden of GPT to that level of costs which it would have to have met had the Valuer-General not infringed the model litigant principles.

Quantum of costs

  1. [31]
    GPT has sought to claim 30% of its costs as costs directly linked to the Valuer-General’s infringement of the model litigant principles. I have no doubt that considerable expense was incurred by both parties in bringing this matter before the Court. I am concerned that were GPT’s cost estimate awry by even only 5% in either direction, that it would, in all probability, amount to a significant difference in the final determination of costs payable by the Valuer-General. Of course, GPT’s estimate may be off by far greater than 5%; I stress that I have made no actual analysis or assessment of what the costs payable in this matter should be. I am simply concerned that 30% may not be an accurate reflection of those costs.
  1. [32]
    On the limited information before me as to the work actually performed by GPT in answering the Valuer-General’s 304 George Street contentions, but cognisant of the amount of time spent on this issue in contrast to the total length of time occupied by the hearing, I make the observation for the assistance of the parties to perhaps resolve the quantum of costs without recourse to expensive assessment, that I would be somewhat surprised if the total quantum of costs properly payable by the Valuer-General equated to as much as the 30% sought by GPT in its primary contention.
  1. [33]
    As indicated, GPT has sought an order in the alternative that the Valuer-General pay GPT’s costs of and incidental to the issue of the 304 George Street sale, to be assessed on an indemnity basis. Given all the circumstances, I consider it appropriate to make such alternative order. It is appropriate to further order that the quantum of those costs is to be as agreed between GPT and the Valuer-General or, failing agreement, to be assessed.

Costs relating to the preliminary point

  1. [34]
    As indicated at the commencement of these reasons, there is also before the Court a costs application made by GPT against the Valuer-General relating to costs incurred in the hearing of a preliminary point.
  1. [35]
    On 1 August 2014, the Valuer-General made a general application seeking preliminary orders estopping GPT from putting forward issues already determined in an appeal against the decision of the Valuer-General in 2010.
  1. [36]
    Although finding in favour of the Valuer-General in relation to the factual status of the prior Land Court order representing the correct value of the subject land as at 1 October 2010, I concluded that a prior statutory valuation does not determine how the market will approach a subsequent valuation and that the weight given to a prior Land Court determination will be a matter for the presiding member.[15] 
  1. [37]
    In that application, the Valuer-General failed to identify, with the necessary precision, issues decided in the 2010 appeal which cause an issue estoppel to arise in respect of those same issues in the 2012 appeal.[16]
  1. [38]
    Accordingly, save that I ordered that GPT was bound by the fact that the statutory valuation of the subject land as at 1 October 2010 was $87,000,000 as determined by the Court, I otherwise dismissed the Valuer-General’s application.
  1. [39]
    On 27 August 2014, I allowed, by the consent of the parties, for the costs of the Valuer-General’s application to be reserved.
  1. [40]
    GPT seeks orders that the Valuer-General pay GPT’s costs of and incidental to the Valuer-General’s general application which was heard on 7 August 2014 relating to the preliminary point. GPT seeks that such costs be paid on the indemnity basis or, in the alternative, on the standard basis. In the further alternative, GPT seeks orders that the Valuer-General pay GPT’s costs of the application insofar as they relate to the claim of estoppel under the Anshun principle on the indemnity basis or, in the alternative, on the standard basis. In the further alternative, GPT seeks an order in favour of GPT as the Court sees fit.

Does s 34 Land Court Act or s 171 Land Valuation Act apply?

  1. [41]
    GPT contends that the relevant statutory provision granting a discretion to the Court to award costs in the circumstances of the preliminary point is s 34 of the Land Court Act 2000 (‘LCA’). Section 34(1) provides that, 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. [42]
    As the earlier parts of my reasons show, the LVA contains specific provisions as to costs relating to the hearing of a valuation appeal.[17] Indeed, in the alternative, GPT contends that its application for costs falls within s 171 of the LVA. However, GPT’s primary contention is that s 34 of the LCA is the appropriate legislative provision.
  1. [43]
    The issue as to whether or not s 34 of the LCA or s 171 of the LVA applies is of particular importance in this matter. The Valuer-General, at paragraph 6 of its written submissions, “accepts that it would be difficult to resist an order that it pay at least some part of the Appellant’s costs of the application (on the standard basis)” if s 34 of the LCA and not s 171 of the LVA applies.
  1. [44]
    In short, GPT’s contention is that the LVA costs provisions only relate to “the hearing of a valuation appeal”. Thus constrained, the LVA provisions only relate to the actual hearing and any costs applications relating to interlocutory processes are properly brought under the LCA and not the LVA.
  1. [45]
    As GPT puts it, the term “valuation appeal” is defined in the Schedule to the LVA to mean “an appeal against an objection decision”. Thus, submits GPT, the question becomes whether the application and the hearing in relation thereto was “the hearing for the valuation appeal” within the meaning of s 167 of the LVA and, if not, then s 171 has no application. GPT contends that the hearing of the interlocutory application was not the hearing of an appeal against an objection decision (valuation appeal). As a result, GPT says that s 171 of the LVA does not fetter the power of the Court to award costs of the application pursuant to s 34 of the LCA.
  1. [46]
    The Valuer-General contends that it is the LVA, and not the LCA, which is the appropriate source of jurisdiction for this Court to consider any application as to costs relating to the application regarding the preliminary point. The Valuer-General contends that the starting point for the proper construction of s 171 is the text of that section. Relying on FCT v Consolidated Media Holdings Ltd[18] and Thiess v Collector of Customs[19] the Valuer-General submits that statutory construction must begin (and end) in the context of the legislative history and extrinsic material. If that text is clear, as the Valuer-General submits it to be in the case at hand, there is no warrant for treating a general application provision as giving that text a different meaning.
  1. [47]
    As the Valuer-General puts it, the ordinary meaning of “costs of the appeal” is costs incurred in the appeal proceeding and that, if Parliament had intended that the starting point described by that section apply only to the costs of the trial, leaving all costs incurred by a party prior to the commencement of the trial/hearing at large, it would have been easy for Parliament to say so.
  1. [48]
    I considered the same issue in the matter of Brisbane Square Pty Ltd v Valuer-General.[20] It is appropriate that I refer again to my reasoning from that case.  I began by considering the Land Appeal Court decision of Kent Street Pty Ltd v Department of Natural Resources and Mines (No 2) (‘Kent Street’).[21]
  1. [49]
    The Kent Street case concerned an application for costs that involved both the previous and amended s 70 of the Valuation of Land Act 1944 (‘VLA’). The Land Appeal Court determined that the amended s 70 (which contains almost identical provisions to s 171 of the LVA) fettered the Court’s power to award costs under s 34 of the LCA.
  1. [50]
    The Land Appeal Court’s judgment in Kent Street had this to say at paragraph 12:

“Previously s.70 of the VLA dealt with costs in a limited way. It provided:

  1. ‘(1)
    Where the value of land as finally determined upon an appeal against the valuation is the value stated by the owner in the owner’s notice of appeal against the valuation, or is nearer to that value than to the valuation appealed against, costs shall not be awarded against the owner.
  1. (2)
    Otherwise costs shall not be awarded against the chief executive.’

As a consequence of limiting the jurisdiction to award costs to the outcome of the appeal as to quantum, the Court could call in aid the general power to award costs in s.34 Of the Land Court Act. That is no longer the case and s.70 is now ‘another Act to the contrary’ and is the legislative authority for awarding costs in respect of appeals under Part 6A of the VLA.” (citations omitted)

  1. [51]
    Of course, the question must be asked as to whether or not what the Land Appeal Court had to say in Kent Street remains good law given that the LVA contains s 167 which was not contained in the then VLA. Section 167 states:

167 Application of pt 5

This part applies for the hearing of a valuation appeal.

  1. [52]
    GPT effectively submits the same position as the appellant in the Brisbane Square costs matter.  That is, that the position adopted by the Land Appeal Court does not apply to interlocutory applications because s 167 of the LVA limits s 171 costs to hearings (determinations) with respect the objection decision itself.
  1. [53]
    Just as I did in the Brisbane Square costs matter, I cannot agree with such reasoning. As I said in the Brisbane Square costs matter, a hearing is an opportunity to state one’s case – to be heard in relation to an issue in dispute. The word “hearing” in s 167 of the LVA should not be confined to a final hearing but should include the full hearing process from the beginning to the end of the appeal.
  1. [54]
    Section 155(1) of the LVA states that an objector may appeal to the Land Court against the objection decision. By s 157(1) of the LVA an appeal is started by filing a notice of appeal. The hearing in s 167 is the hearing of all aspects of the appeal from the time the appeal is filed until all the issues surrounding it have been finalised. In my view, any other interpretation would be unnecessarily restrictive and narrow.
  1. [55]
    I note s 56(1) of the VLA also indicated an appeal is started by filing a notice of appeal in the Land Court. I remain of the view that the similarities between the respective costs provisions in the LVA and the VLA[22] are not, in my opinion, by chance, and the same interpretation should be adopted to both sets of costs provisions.
  1. [56]
    The then President of the Land Court in the matter of Reed v Department of Natural Resources and Mines & Ors[23] determined that costs should be awarded under s 882 of the Water Act 2000 (‘WA’) for an interlocutory matter. Sections 882(3) and (4) of the WA are very similar to ss 171(1) and (2) of the LVA.
  1. [57]
    Importantly, President MacDonald said:

“[28] There are numerous decisions of the Planning and Environment Court where ss 4.1.23(1) and (2) were construed to enable the court to order costs with respect to interlocutory hearings. For example, in Gauci Developments (Qld 1) Pty Ltd v Bundaberg City Council, Wilson SC DCJ said:

‘Certainly s.4.1.23 refers to costs “… for the proceeding” and, because IPA does not define that term it might at first blush be thought to apply, in instances like the present, only to the appeal in toto. The discretion arising under subs.(2) has, however, been construed on a number of occasions to apply to interlocutory matters including applications within proceedings. That is unsurprising, for two reasons: first some of the nine instances adumbrated in the subsection plainly refer to part, rather than the whole, of the proceeding (subs.(2)(e) is an obvious example. I do not think the particular reference to “part” of the proceeding which appears only in subs.(2)(b) tells against this conclusion. The second reason concerns the wide nature of the discretion which subs.(2) obviously intends to give to the Court - as the phrase “… as it considers appropriate” plainly envisages.’”  (citations omitted).

  1. [58]
    President MacDonald concluded that the costs provisions in s 882(4) of the WA did apply to the making of costs orders in interlocutory matters. I agree with President MacDonald and I am of the view that the same reasoning applies with respect to s 171 of the LVA.
  1. [59]
    Again, as I did in the Brisbane Square costs matter, I note that the reasoning of Wilson SC DCJ in the Gauci Developments (Qld) Pty Ltd v Bundaberg City Council[24] case is applicable to s 171(2) of the LVA. Why would the legislature provide in s 171(2)(c) of the LVA that costs could be awarded where a party did not comply with the Court’s procedural requirements, if it meant to limit costs under this section to hearing substantive issues only?
  1. [60]
    I agree with the submissions of the Valuer-General. Section 171 clearly states that the default position with respect to a valuation appeal is that each party must bear the party’s own costs of the appeal. There is no reason to depart from the clear and plain wording of the LVA. That being the case, there is no room for s 34 of the LCA to operate in an appeal to the Land Court against the objection decision for the objection, which are the words used by s 155(1) of the LVA to describe the proceedings as a whole.
  1. [61]
    Having found against GPT’s primary application, I now turn to consider GPT’s application for costs pursuant to s 171 of the LVA.

Is s 171(2) LVA enlivened?

  1. [62]
    In determining the costs application with respect to the 304 George Street sale, I have already considered in some detail the costs provisions of the LVA. It is unnecessary for me to repeat the relevant provisions and the authorities relevant to those provisions again.
  1. [63]
    Turning to the heart of the matter, the first point to consider is whether the costs jurisdiction of the LVA is enlivened with respect to the application relating to the preliminary point. It is only if those provisions are enlivened that I need turn to the issue of my discretion as to whether or not costs should be awarded.
  1. [64]
    Like the position with respect to the costs application by GPT relating to the 304 George Street sale issue, GPT relies on ss 171(2)(a) (frivolous or vexatious) and (f) (party did not properly discharge the party’s responsibility for the appeal). In addition, GPT relies upon s 171(2)(d) (a party incurred costs because the other party did not comply with the courts procedural requirements).
  1. [65]
    Unsurprisingly, GPT relies upon Mudie as the precedent to determine whether or not the conduct of the Valuer-General has been frivolous or vexatious. GPT also refers to a decision of Jones DCJ in Copley v Logan City Council & Anor[25] where Judge Jones, citing Mudie, had this to say:

“… This court should exercise a degree of caution in making cost orders against citizens of the state. That is not to say that costs will not be awarded when appropriate, but due regard has to be given to the public policy considerations underlying provisions such ass 457 of the SPR. These include the public interest character of this Court and that Parliament intended that citizens with genuine grounds should not be discouraged from litigation because of fear of crippling costs orders being made against them.”

  1. [66]
    As GPT puts it, citizens of the State should not be discouraged from advancing appeals where they may be forced to meet the costs of frivolous or vexatious interlocutory hearings put forward by the State. Further, should the State genuinely wish to test the footing of a point of law in an interlocutory step which had been open to it to have been tested previously, the individual citizen of the State should not unreasonably be burdened by its cost.
  1. [67]
    The Valuer-General makes rather lengthy submissions in response to GPT’s contentions regarding s 171(2)(a) (frivolous or vexatious). Included in those submissions, the Valuer-General contends that there was no authority dealing with the questions as to the affect limits (if any) have on what parties can put into contention in a later appeal between the same parties for the same land under the LVA or closely comparable legislation. The Valuer-General says that the submissions by GPT gloss over the point that there was no authority under the LVA or other such legislation which was contrary to the submissions made by the respondent. The Valuer-General agrees that if there had been, there may have been some basis for an assertion of frivolity against the Valuer-General. However, the Valuer-General submits that there is a fundamental difference between absence of authority and defiance of existing contrary authority.
  1. [68]
    The Valuer-General then goes on at [11] of its submissions[26] as follows:

“There was and is ample authority for the proposition that a later judgement between the some [sic] parties cannot deny the correctness of what was decided in the earlier judgement. The Appellant denied that proposition in the context of LVA appeals but, on that point, as the Respondent understands the limited declaration which was made in its favour, the Appellant failed.”[27]

  1. [69]
    I agree with the submissions of the Valuer-General. It is not as if the application by the Valuer-General was frivolous or vexatious to the extent that the application was dismissed. Clearly, although limited, a declaration was granted by this Court as sought by the Valuer-General and opposed by GPT. Certainly, the bulk of the application relating to the preliminary point made by the Valuer-General was dismissed, but nowhere in my reasons did I indicate that the actions of the Valuer-General in bringing the application were frivolous or vexatious. To the contrary, the application by the Valuer-General could be viewed as a proper attempt by the Valuer-General to resolve a clear issue in the appeal at the earliest opportunity.
  1. [70]
    Although the Valuer-General failed in the bulk of its application relating to the preliminary point, I do not consider its actions, understood in the context of the authorities, to be either frivolous or vexatious as those terms are used in the LVA.
  1. [71]
    GPT in its submissions acknowledges that there is some overlap between ss 171(2)(a) and (f). I certainly agree. GPT’s submissions in this regard are consistent with my findings on the 304 George Street sale costs issue. For essentially the same reasons as those I have already set out in which I have found that I am not persuaded that the Valuer-General acted in a way which was frivolous or vexatious, GPT has not been able to show to my satisfaction, consistent with the authorities, that the Valuer-General did not properly discharge its responsibilities for the appeal.
  1. [72]
    That leaves for consideration s 171(2)(d). GPT contends that the Valuer-General failed to comply with the Court’s procedural requirements. In particular, the Valuer-General failed to proceed in an expeditious way, and also failed to take steps to facilitate the just and expeditious resolution of the real issues in the appeal at a minimum of expense. GPT contends that this is sufficient to enliven s 171(2)(d).
  1. [73]
    I agree that if the facts of this matter showed that the Valuer-General failed to proceed in an expeditious way and/or failed to take steps to facilitate the just and expeditious resolution of the real issues at a minimum of expense, that s 171(2)(d) would be enlivened. The facts in this matter, however, do not in any way support GPT’s contention. As the Valuer-General points out, it contravened no order of the Court nor any provision of the Land Court Rules 2000. The Valuer-General also correctly points out that it brought the application early with a view of avoiding a waste of time and costs on evidence which may have been wasted at trial, and that it did not contravene the Uniform Civil Procedure Rules 1999 r 5.
  1. [74]
    As I am not satisfied that ss 171(2)(a), (d) or (f) are enlivened. It follows that I have no basis under the LVA to move on to the next point as to whether or not I should exercise my discretion to award costs. The statutory basis which would otherwise allow me to do so has not been made out.
  1. [75]
    It follows that the appropriate order with respect to GPT’s applications for costs arising out of the preliminary point should be dismissed and the parties should each pay their own costs of the interlocutory hearing of the preliminary point.

Orders

As regards GPT’s application for costs with respect to the 304 George Street sale issue:

  1. The Valuer-General pay GPT’s costs of and incidental to the issue of the 304 George Street sale, to be assessed on an indemnity basis.
  2. The quantum of the costs in Order 1 is to be as agreed between GPT and the Valuer-General or, failing agreement, to be assessed.

As regards GPT’s application for costs with respect to costs arising out of the preliminary point interlocutory proceeding:

  1. GPT’s application for costs is dismissed.
  2. Each party pay their own costs of and incidental to the preliminary point interlocutory proceeding.

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1]GPT RE Limited v Valuer-General (No 2) [2018] QLC 9 (‘GPT (No 2)’).

[2]  Throughout this decision, as the Valuer-General is a statutory office, I have referred to the Valuer-General by the gender neutral term of “it”.

[3]  [2017] QLC 11 [3].

[4]Brisbane Square Pty Ltd v Valuer-General [2016] QLC 69.

[5]  [2003] 2 Qd R 271; [2002] QCA 546.

[6]  [2011] QCA 15.

[7]  (2014) 3 QLCR 324; (2014) 203 LGERA 438; [2014] QLAC 8.

[8]  (2014) 35 QLCR 569; [2014] QLAC 10.

[9]GPT (No 2) [2018] QLC 9 [194].

[10]  (1912) 15 CLR 333.

[11]  Respondent’s costs submissions dated 29 June 2018 [18].

[12]  See s 205(2) of the Land Valuation Act 2010.

[13]Mudie v Gainriver Pty Ltd (No.2) [2003] 2 Qd R 271; [2002] QCA 546 [37] quoting Ashmore v British Coal Corporation [1990] 2 QB 388, 352.

[14]GPT (No 2) [182]–[198].

[15]GPT RE Limited v Valuer-General (2015) 36 QLCR 133 [22]–[23]; [2015] QLC 14.

[16]  Ibid [39].

[17]Land Valuation Act 2010 s 167.

[18]  (2012) 250 CLR 503 [39]; [2012] HCA 55.

[19]  (2014) 250 CLR 664 [22]; [2014] HCA 12.

[20]  [2015] QLC 40.

[21]  (2009) 30 QLCR 167; [2009] QLAC 7.

[22]  Sections 171 and 70, respectively.

[23]  (2014) 35 QLCR 1; [2014] QLC 1.

[24]  [2009] QPELR 123; [2008] QPEC 8.

[25]  [2012] QPEC 43 [19]; [2012] QPELR 643.

[26]  Respondent’s costs submissions dated 24 June 2015.

[27]  The reference in the Valuer-General’s submissions to “some parties” should be “same parties”.

Close

Editorial Notes

  • Published Case Name:

    GPT RE Limited v Valuer-General (No. 3)

  • Shortened Case Name:

    GPT RE Limited v Valuer-General (No. 3)

  • MNC:

    [2019] QLC 8

  • Court:

    QLC

  • Judge(s):

    Member Smith

  • Date:

    21 Feb 2019

Appeal Status

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

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