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Burke v Valuer-General[2021] QLC 24

Burke v Valuer-General[2021] QLC 24

LAND COURT OF QUEENSLAND

CITATION:

Burke & Anor v Valuer-General [2021] QLC 24

PARTIES:

Peter Thomas Burke

(appellant)

Menora Developments Pty Ltd

(appellant)

v

Valuer-General

(respondent)

FILE NO:

LVA048-21

DIVISION:

General Division

PROCEEDING:

General application

DELIVERED ON:

23 July 2021

DELIVERED AT:

Brisbane

HEARD ON:

20 July 2021

HEARD AT:

Brisbane

MEMBER:

PG Stilgoe OAM

ORDERS:

I determine:

  1. 1.the general application filed by the appellants on 4 May 2021 is dismissed;
  1. 2.the general application filed by the Valuer-General on 1 June 2021 is upheld;
  1. 3.the notice of appeal filed 12 April 2021 is struck out; and
  1. 4.any submissions seeking a costs order in this proceeding must be filed and served within 14 days of the publication of these reasons.

CATCHWORDS:

REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – NOTICE OF APPEAL – where sole ground of notice of appeal was that the respondent failed to deduct the cost of site improvements – where the appellants’ objection did not include site improvement costs as a ground of objection – where the respondent applied to strike out the appellants’ notice of appeal – where the Court dismissed the appellants’ general application – where the Court upheld the respondent’s general application – where the notice of appeal was struck out

Land Court Act 2000 s 7

Land Valuation Act 2010 s 41, s 42, s 43, s 113, s 143, s 144, s 145, s 147, s 150, s 151, s 155, s 157

Uniform Civil Procedure Rules 1999 r 375

APPEARANCES:

P T Burke, the appellant (self-represented)

C Channon, Senior Lawyer, In-house Legal, Department of Resources

  1. [1]
    Can the appellants, Peter Thomas Burke and Menora Developments Pty Ltd, file a notice of appeal about a site improvement deduction even though it was not a ground in their objection? If they can, then the site improvement deduction, if any, will apply to the issued valuation. If not, then the deduction, if any, will only apply to future valuations.
  1. [2]
    The appellants own land at Blackstump Court, Gilston. The Valuer-General’s site valuation for that property on 4 March 2020 was $3,400,000.
  1. [3]
    The appellants lodged an objection, submitting that the correct valuation should be $1,400,000. The Valuer-General issued a decision on objection on 3 March 2021 at $2,650,000.
  1. [4]
    The appellants appealed to this Court. The sole ground of the notice to appeal is that the Valuer-General failed to deduct the cost of site improvements.
  1. [5]
    The Valuer-General has applied to strike out the appellants’ notice of appeal on the basis that it has no jurisdiction. That is the application I am deciding today.
  1. [6]
    The Valuer-General submits that the notice of appeal does not relate to a decision of the Valuer-General because he did not make a decision about site improvements. He submits that the Land Valuation Act 2010 (“LVA”) has a framework for dealing with deduction applications and that, if the appellants have not complied with that framework, they cannot appeal.

What is the framework?

  1. [7]
    Under s 41 of the LVA, a deduction application may be made as an objection ground for an objection or in the approved form. In either case, the application must state full details of the site improvements the subject of the application, including the cost of the work, who carried out the work and when they were finished. The application must also be accompanied by evidence that the applicant paid for the improvements within the last 12 years and include all documents relating to the cost of the works.
  1. [8]
    Section 42 requires the Valuer-General to consider an application for deduction and decide whether to grant it or refuse it.
  1. [9]
    Section 43(2)(a) states that a site improvement deduction must be deducted from “the relevant valuation” and all subsequent valuations. “Relevant valuation” is defined.[1] If the deduction application was made as an objection ground, the valuation is that which was the subject of the objection. If the deduction application was otherwise, the valuation is the next one to be given to the owner.
  1. [10]
    Section 113 sets out the requirements of an objection. If an objection ground is a deduction application, about a deduction application, or concerns a claim for a higher site improvement deduction, then the objection must state the amount claimed, the matters required by s 41(2)(a) and be accompanied by the documents referred to in s 41(2)(b).
  1. [11]
    A person can amend their objection only under Part 5 of the Act.[2] An objector can amend its objection if the Valuer-General issues a correction notice.[3] They can also amend an objection ground to reflect an additional matter raised in further information given in response to the Valuer-General’s invitation.[4] There is no capacity to add a ground of objection in the absence of an invitation from the Valuer-General. If an objector purports to add a new ground, the Valuer-General must disregard it when deciding the objection.[5]
  1. [12]
    An objector may appeal to this Court against the objection decision for the objection.[6] However, an objector cannot appeal if the Valuer-General has not made a decision under s 147 on the objection.[7]
  1. [13]
    Section 147(2) states that the Valuer-General must decide a properly made objection at any time the Valuer-General considers appropriate, having regard to the stage the objection has reached under the objection process.
  1. [14]
    Section 150 makes it clear that the Valuer-General must decide the objection. If the objection decision concerns a deduction application, the Valuer-General must state whether the claim has been allowed and the amount that has been allowed.[8]
  1. [15]
    Section 157 tells an objector how to appeal. If the objector (now the appellant) claims a site improvement deduction, then they must state the amount of that deduction claimed.[9]

The appellants’ submissions

  1. [16]
    The appellants submit that an examination of the legislative history of land valuation appeals demonstrate that the grounds of appeal are not limited to the grounds of objection. The Valuer-General accepts that proposition but accepting it does not necessarily mean that the appellants can resist the Valuer-General’s application. The real question, as I have indicated, is whether the framework of the LVA mandates that an appeal can only lie if there is a decision about the site improvement deductions.
  1. [17]
    The appellants also submit that s 157 of the LVA specifically contemplates an appeal about deductions and that any interpretation of the LVA to limit their rights to appeal the site improvement deductions would be contrary to the intent of the Legislature. While s 157 in isolation may support the appellants’ submission, I must read the LVA as a whole.
  1. [18]
    If the appellants had omitted any other ground of objection appeal, I would agree that they could still raise it on appeal. However, the framework for dealing with deduction applications is so specific, and so comprehensive, the inescapable conclusion is that it covers the field and any failure to comply results in a loss of rights.
  1. [19]
    The language of all sections dealing with deduction applications is mandatory, not permissive. If a person does not comply with the framework, the Valuer-General cannot make a decision. A person cannot appeal if the Valuer-General has not made a decision. It may be tempting to interpret “decision” in its widest sense – any decision on the objection – but the specific requirements of the LVA about deduction applications call for a narrower view.
  1. [20]
    It would be illogical to permit a party to leapfrog the steps for a deduction application and raise the issue for the first time in the Court. Considering a deduction application in the objection framework is relatively quick and cost effective. Considering the same issue in the Court can be expensive and time consuming. Considering the same issue in the Court without the benefit of the objection decision would add an extra degree of difficulty.
  1. [21]
    The appellants referred me to the power to amend under the Uniform Civil Procedure Rules 1999 (“UCPR”).[10] That includes a power to amend even if the effect is to add a new cause of action. The ability to amend is at the Court’s discretion. The exercise of that discretion must be informed by the referring Act, in this case, the LVA. As I have addressed, the referring Act has a specific framework. That framework does not favour the exercise of my discretion to allow the amendment.
  1. [22]
    Similarly, the requirement in s 7 of the Land Court Act 2000, which requires me to act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities, does not save the appellants when the referring Act indicates a contrary course of action.
  1. [23]
    Mr Burke, for the appellants, freely admitted that this situation arose through their error. They will not get the benefit of the site improvement deduction for the issued valuation, but Mr Burke has now correctly applied under s 41 which may positively affect future valuations.

Orders

I determine:

  1. 1.the general application filed by the appellants on 4 May 2021 is dismissed;
  1. 2.the general application filed by the Valuer-General on 1 June 2021 is upheld;
  1. 3.the notice of appeal filed 12 April 2021 is struck out; and
  1. 4.any submissions seeking a costs order in this proceeding must be filed and served within 14 days of the publication of these reasons.

Footnotes

[1] LVA s 43(5).

[2] Ibid s 143(1).

[3] Ibid s 144.

[4] Ibid s 145(1)(d)(ii).

[5] Ibid s 143(2).

[6] Ibid s 155(1).

[7] Ibid s 155(2)(c). That provision is a little confusing; LVA s 147 requires the Valuer-General to consider the objection. As I noted, however, it is s 150 that requires the Valuer-General to make a decision,

[8] LVA s 151(3)(a).

[9] Ibid s 157(3)(c).

[10] UCPR r 375.

Close

Editorial Notes

  • Published Case Name:

    Burke & Anor v Valuer-General

  • Shortened Case Name:

    Burke v Valuer-General

  • MNC:

    [2021] QLC 24

  • Court:

    QLC

  • Judge(s):

    PG Stilgoe OAM

  • Date:

    23 Jul 2021

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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