Lamington Markets Pty Ltd as Tte v Valuer-General (No 2)
[2023] QLC 2
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- Unreported Judgment
- Lamington Markets Pty Ltd as Tte v Valuer-General (No 2)[2023] QLC 2
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Lamington Markets Pty Ltd as Tte v Valuer-General (No 2)[2023] QLC 2
Lamington Markets Pty Ltd as Tte v Valuer-General (No 2)[2023] QLC 2
LAND COURT OF QUEENSLAND
CITATION: | Lamington Markets Pty Ltd as Tte v Valuer-General (No 2) [2023] QLC 2 |
PARTIES: | Lamington Markets Pty Ltd as Tte (appellant) v Valuer-General (respondent) |
FILE NO: | LVA007-21 |
DIVISION: | General |
PROCEEDING: | Appeal against objection decision on a valuation under the Land Valuation Act 2010 |
DELIVERED ON: | 16 January 2023 |
DELIVERED AT: | Brisbane |
HEARD ON: | 8 December 2022 |
HEARD AT: | Brisbane |
MEMBER: | PG Stilgoe OAM |
ORDER/S: |
|
CATCHWORDS: | REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – where the Valuer – General valued two lots separately – where the appellant claimed both lots were leased to the same person and so the two lots should be included in the same valuation under s 57 of the Land Valuation Act 2010 – where the appellant did not raise the s 57 issue in the notice of appeal Land Valuation Act 2010, s 57, s 169(1) Gibson Investments Pty Ltd v Valuer-General (1978) 5 QLCR 223, applied Hydrox Nominees Pty Ltd v Valuer-General [2016] QLC 56, applied Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, cited |
APPEARANCES: | ND Loos (instructed by Colin Biggers & Paisley) for the appellant DA Quayle (instructed by the Department of Resources) for the respondent |
- [1]Section 57 of the Land Valuation Act (LVA) provides that adjoining lots must be included in the same valuation if they are owned by the same person and either no part of the lots is leased or all of the lots are leased to the same person.
- [2]The rear of 57 Lamington St (the house) abuts the rear of 612 Lutwyche Road. Lamington owns both lots as part of a joint venture between James Rennell and Murray and Frank Stafford.[1]
- [3]Lamington submits that s 57 of the LVA should apply and the lots must be included in the same valuation because they were both leased to Mr Rennell’s son, Joshua Rennell.
- [4]Section 169(1) of the LVA states that the Land Court hearing is limited to the grounds stated in the valuation appeal notice. This is a mandatory condition.[2] Lamington’s notice of appeal, filed 5 January 2021, made no reference to the s 57 issue. Lamington filed an amended statement of facts and issues but it has not applied to amend the appeal notice. The Court has decided[3] that it has no power to amend a valuation appeal notice. Therefore, I have no power to consider the s 57 issue.
- [5]The parties have agreed that the outcome of the substantive appeal depends upon the result of the s 57 issue. As there is no s 57 issue and nothing else for me to decide, the appeal should be dismissed.
- [6]However, the parties have spent much time and money debating the s 57 issue so, for what it is worth, I will comment on the evidence.
- [7]The parties agree that Joshua leased the house. The question is whether Joshua also leased Lutwyche Road.
- [8]Counsel for Lamington submitted that this is a simple case and, at the end of the day, that is true. But the appeal has taken a convoluted path which has informed my view of the evidence.
- [9]Lamington’s statement of facts and issues filed 6 May 2022 – over 12 months later – did raise the s 57 issue. The statement of facts and issues records that Joshua had an oral tenancy agreement made in March 2015 and a written tenancy agreement dated 29 March 2022.
- [10]Lamington filed the affidavit of Francis Para John Stafford on 8 July 2022 to confirm the facts in the statement of facts and issues.
- [11]The Valuer General’s submissions filed 19 August 2022 took issue with Mr Stafford’s affidavit.
- [12]Lamington filed reply submissions on 26 August 2022 that took an interesting position: either the house and Lutwyche Road were both leased to Joshua or neither was leased to anyone.
- [13]The appeal was listed for hearing on 26 September 2022. The hearing was adjourned by consent to allow Lamington to file and serve amended material. Counsel for Lamington conceded that the adjournment was necessary because there were “some difficulties” with the state of the evidence.[4]
- [14]Lamington filed the affidavit of James Vivian Rennell on 4 November 2022 in which he addresses the issues the Valuer General raised about Mr Stafford’s affidavit.
- [15]Counsel for Lamington noted that its case developed responsively.[5] That is an odd statement to make given Lamington is the appellant and should be conducting the case proactively.
- [16]If I had decided the appeal based on the evidence available on 26 September 2022, there is no doubt I would have found in favour of the Valuer General.
- [17]Mr Stafford stated that Joshua leased the house pursuant to a verbal agreement by which Joshua occupied the house and paid rent.[6] He exhibited a copy of a rent ledger to confirm the lease. Joshua did not pay rent between mid-June 2016 and November 2019. Mr Stafford stated that there was an agreement that Joshua would not be required to pay rent for the house if he did in kind work, including maintenance of the house and its gardens.[7] Mr Stafford stated that Joshua continued to occupy the house until 2021.[8] At no point did Mr Stafford refer to Joshua having a lease, or any right, over Lutwyche Road.
- [18]Mr Stafford gave evidence at the hearing. Presumably, he had access to Mr Rennell’s affidavit before he entered the witness box. Contrary to Mr Rennell’s evidence, Mr Stafford maintained his position that Joshua rented the house.[9] Mr Stafford never referred to Joshua having a lease over Lutwyche Road.
- [19]Mr Stafford’s version is confirmed by the only piece of objective evidence. The tenant ledger annexed to his affidavit,[10] which refers only to the house.
- [20]So, what of Mr Rennell’s evidence? He told the Court that, after consultation with his partners, he granted access to Joshua.[11] He told the Court that Joshua asked for permission to access the rear of the house via the easement over Lutwyche Road so that he could run a coffee roasting enterprise.[12]
- [21]Counsel for Lamington submits that Mr Rennell gave plain and simple evidence about a plain and simple point and that I should accept that evidence.[13] He submits that Counsel for the Valuer General had the opportunity to put the contrary position to Mr Rennell and declined to do so;[14] that he had the opportunity to suggest to Mr Rennell that his evidence was artifice but he declined to do so;[15] that the Jones v Dunkel principle was not invoked when it could have been.[16]
- [22]Mr Rennell’s evidence was given after the Valuer General pointed out the inadequacies of Mr Stafford’s evidence. While Mr Rennell’s affidavit was also plain and simple, it did not contain the embellishments that appeared under cross examination which explain (in Lamington’s view) why Joshua had a lease and not just a right of access over Lutwyche Road.
- [23]I have doubts about Mr Rennell’s oral evidence. It is entirely plausible to grant access across Lutwyche Road to facilitate coffee roasting in the back yard, but it makes no sense to grant a lease over 3500 m2, most of which would simply be a burden to Joshua, for the same purpose. He agreed with Counsel for the Valuer General that his description of this conversation as a variation of lease was legal language that he may not have used with Joshua.[17] The conversation occurred in or about 2015; it is understandable that Mr Rennell would not remember the detail of that conversation and also that he innocently would recall it to conform with his current view of the arrangements.
- [24]I prefer Mr Stafford’s evidence. It is plain and simple evidence given to support a plain and simple proposition. Unfortunately, it is not a proposition that supports dealing with this appeal under s 57 of the LVA.
- [25]Counsel for Lamington submits that there is nothing ominous[18] in the way this case unfolded. He gave the unhelpful analogy of balls on a billiard table.[19] The thing is, the person who cues off in billiards usually has the advantage in the game and should not have to play responsively. If Lamington had raised the s 57 question in its notice of appeal and filed all its evidence promptly after the question of jurisdiction had been determined, this appeal might have been determined differently.
Orders
- 1.The appeal is dismissed.
- 2.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]T1-12, line 22.
[2]Gibson Investments Pty Ltd v Valuer-General (1978) 5 QLCR 223, 227.
[3]Hydrox Nominees Pty Ltd v Valuer-General [2016] QLC 56 [23].
[4]T1-38, 17-18.
[5]T1-38, 22.
[6]Ex 1, [15].
[7]Ex 1 [17].
[8]Ex 1 [18].
[9]T1-28, lines 17 to 24.
[10]Ex 1.
[11]T1-21, lines 1 to 2.
[12]T1-18, lines 23 to 38.
[13]T1-38, lines 1 to 4.
[14]T1-38, lines 25 to 32.
[15]T1-39, lines 44 to 50.
[16]T1-38, line 42; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
[17]T1-20, line 8 to T-21, line 10.
[18]T1-36, lines 14 to 22.
[19]T1-39, lines 5 to 9.