Body Corporate for Flagstone Village v Valuer-General, Department of Resources [2025] QCAT 348

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Body Corporate for Flagstone Village CTS 33183 v Valuer-General, Department of Resources [2025] QCAT 348 PARTIES: BODY CORPORATE FOR FLAGSTONE VILLAGE CTS 33183 (applicant) v VALUER-GENERAL, DEPARTMENT OF RESOURCES (respondent) APPLICATION NO/S: GAR195-22 MATTER TYPE: General administrative review matters DELIVERED ON: 18 September 2025 HEARING DATE: 7 May 2025 HEARD AT: Brisbane DECISION OF: Member Lumb ORDERS: The time for the Applicant to comply with Order 2 of the Decision of the Tribunal dated 5 March 2025 is extended to 1 May 2025. The Applicant must pay the Respondent’s costs of and incidental to the preparation of the Respondent’s submissions filed on 22 April 2025, to be assessed on the Supreme Court scale and on the indemnity basis. The decision made by the Respondent on 19 April 2022 (confirming the Respondent’s original decision dated 21 February 2022) is confirmed. The Respondent must file in the Tribunal two (2) copies of, and give to the Applicant one (1) copy of, written submissions on the question of costs, no longer than five (5) pages, within 14 days of the date of receipt of the Decision. The Applicant must file in the Tribunal two (2) copies of, and give to the Respondent one (1) copy of, written submissions in response, no longer than five (5) pages, within 14 days of receipt of the Respondent’s submissions. -- 1 of 25 -- 2 The Respondent must file in the Tribunal two (2) copies of, and give to the Applicant one (1) copy of, any written submissions in reply, no longer than three (3) pages, within 14 days of receipt of the Applicant’s submissions. Unless other directed, the issue of costs will be determined on the papers, without an oral hearing. CATCHWORDS: REAL PROPERTY – STRATA AND RELATED TITLES – MANAGEMENT AND CONTROL – BODY CORPORATE: POWERS, DUTIES, AND LIABILITIES – where s 312 of the Body Corporate and Community Management Act 1997 requires a proceeding be started only if authorised by special resolution of body corporate – whether a ‘flying minute’ complying with s 111 of the Act satisfied the requirement of a ‘special resolution’ – where applicant failed to comply with self-executing order in relation to authorisation of the proceeding – whether extension of time for compliance with the order should be granted retrospectively REAL PROPERTY — VALUATION OF LAND — OBJECTIONS AND APPEALS — QUEENSLAND — where maintenance valuation issued in respect of scheme land for a community titles scheme – where body corporate for the scheme sought a site improvement deduction for site improvements carried out to three lots owned by one of the lot owners in the scheme – where respondent decided application for deduction for site improvements said to be invalid because the site improvements claimed were not paid by the body corporate and there was absence of evidence of proof of payment – where body corporate sought internal review of decision – where original decision confirmed – whether on the proper construction of the Land Valuation Act 2010, in particular s 69, the body corporate takes up all of the extant rights of the true owners ‘for the valuation’ or there is an assumption by the body corporate of all facts and circumstances of the true owners including if the true owner has an entitlement to a site deduction improvement – whether body corporate had established that site improvement works ‘paid for’ by the lot owner on whose lots the works were carried out Body Corporate and Community Management Act 1997 (Qld), s 10, s 24, s 35, s 106, s 111, s 159, s 312, Schedule 6 Body Corporate and Community Management (Commercial Module) Regulation 2008 (Qld), s 199 Body Corporate and Community Management (Commercial Module) Regulation 2020 (Qld), s 133 -- 2 of 25 -- 3 Land Valuation Act 2010 (Qld), s 4, s 5, s 7, s 8, s 19, s 23, s 24, s 38, s 39, s 41, s 42, s 69, s 179, Schedule Baggott v Whafflm Pty Ltd [2000] QSC 167 Boz One Pty Ltd v McLellan (2015) 105 ACSR 325 Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd [2023] NSWCA 256 DZY (a pseudonym) v Trustees of the Christian Brothers [2025] HCA 16 Jalmoon Pty Ltd (in liq) v Bow [1997] 2 Qd R 62 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Smith & Anor v Novena Leasing Pty Ltd (as trustee for) The Elliott Property Trust [2015] QCATA 33 Taylor v The Owners-Strata Plan No 11564 (2014) 253 CLR 531 Twin v Deputy Commission of Taxation [2004] 1 Qd R 450 Vatner v Chief Commissioner of State Revenue [2025] NSWCA 35 APPEARANCES & REPRESENTATION: Applicant: T Ritchie, instructed by South Geldard Lawyers Respondent: W Isdale instructed by Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development, In-House Legal REASONS FOR DECISION Introduction [1] By an Application to review a decision filed on 17 May 2022 (‘the Review Application’), the Applicant (‘the Body Corporate’) seeks to review an internal review decision of the Respondent (‘the Valuer-General’) dated 19 April 2022 (‘the Reviewable Decision’). [2] The Body Corporate is the body corporate for the Flagstone Village Community Titles Scheme 33183 (‘the Scheme’). The Scheme comprises five lots (and common property) at Flagstone in south-east Queensland. Stockwell Flagstone Pty Ltd (‘Stockwell Flagstone’) is the registered owner of three lots in the Scheme. [3] On 29 September 2021, the Valuer-General issued a maintenance valuation notice pursuant to the Land Valuation Act 2010 (Qld) (‘the LVA’) in relation to the scheme land for the Scheme. The site value for the Scheme land was valued at $10.5 million. [4] On 26 November 2021, the Body Corporate lodged an objection against the notice on the basis of an application for a deduction for site improvements made pursuant to s 39 of the LVA. -- 3 of 25 -- 4 [5] On 21 January 2022, the Valuer-General issued a correction notice in response to the objection, stating that the Valuer-General’s initial assessment decision is that the objection is defective because, in summary, the application for a deduction for site improvements was incomplete and required further information. [6] On 18 February 2022, the Body Corporate provided a response. [7] On 21 February 2022, the Valuer-General issued a notice of advice of non-compliance with the correction notice to the Body Corporate (‘the Original Decision’). The notice advised that the Body Corporate had failed to appropriately amend the objection defects to make the objection properly made. The stated defects were that the application for a deduction for site improvements was invalid because the site improvements claimed were not paid by the Body Corporate and there was no evidence provided which proved that the Body Corporate paid for the improvements and when that payment was made. [8] On 21 March 2022, the Body Corporate lodged an application for internal review. [9] On 19 April 2022, the Valuer-General issued an information notice – decision on internal review under the LVA which confirmed the Original Decision and stated that the Original Decision not to consider or decide under s 147(3) of the LVA was upheld, as the objection was not properly made. This is the Reviewable Decision. [10] On 17 May 2022, the Body Corporate filed the Review Application. [11] The Body Corporate’s case is that it had sought a deduction in the amount of $2.5 million for site improvements carried out to the three lots in the Scheme owned by Stockwell Flagstone.1 In this proceeding, I did not understand the Valuer-General to dispute that the works the subject of the relevant site improvements were carried out; that the works constituted ‘site improvements’ within the meaning of the LVA; that the works were carried out to the three lots owned by Stockwell Flagstone; or that the cost of the works was (or was approximately) $2.5 million. [12] There are two threshold issues for determination. [13] First, whether the Tribunal has jurisdiction to determine the Review Application. [14] Second, in order to bring the Review Application, the Body Corporate was required to comply with s 312 of the Body Corporate and Community Management Act 1997 (Qld) (‘the BCCMA’). The issues that arise are whether the Body Corporate had complied with s 312 by the time of the (adjourned) hearing of the matter of 7 May 2025 and, if so, whether it should be granted an extension of time to comply with a previous self-executing order which the Body Corporate had failed to comply with by the required date (‘the s 312 issue’). Jurisdiction [15] Section 179 of the LVA provides: A person who is given, or is entitled to be given, an information notice for an original decision may apply, as provided under the QCAT Act, to QCAT for an external review of the decision. 1 Applicant’s Statement of Facts and Issues [16], Agreed Court Bundle p 431. -- 4 of 25 -- 5 (emphasis added) [16] The Tribunal invited submissions from the parties as to whether the external review by the Tribunal pursuant to s 179 involves a review of the original decision or the internal review decision. The parties provided written submissions each submitting, in summary, that on the proper construction of Chapter 5, Parts 1 and 2 of the LVA, the reference to ‘the decision’ in s 179 should be understood as a reference to the internal review decision. [17] I accept that this is the proper construction. Whilst the language adopted in s 179 tends to indicate that ‘the decision’ is a reference to the preceding reference to ‘original decision’, a consideration of ss 175 to 178 of the LVA indicates that the reference to ‘the decision’ must necessarily be a reference to the internal review decision. [18] Subsection 175(1) provides, relevantly, that a person whose interests are adversely affected by a specified decision of the Valuer-General (each referred to as an ‘original decision’) may apply to the Valuer-General for an internal review of the decision. [19] Section 176 provides for the requirements of an application by a person for internal review of an original decision. Importantly, s 177(1) provides that the Valuer-General must make a decision on an application for internal review and must give the applicant an information notice for the decision within 28 days after the application is made. This makes clear that the information notice for the decision is the information notice for the decision on internal review. The information notice in the present case was in such terms.2 Given that an information notice must be an information notice for the decision on internal review, I consider that the reference to ‘the decision’ in s 179 is necessarily a reference to the internal review decision. [20] I am satisfied that the Tribunal has jurisdiction to determine the Review Application. [21] I consider that the review is governed by Division 3 of Part 1 of Chapter 2 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). In exercising its review jurisdiction, the Tribunal: (a) must decide the review in accordance with the QCAT Act and the LVA (being the enabling Act under which the Reviewable Decision was made);3 (b) may perform the functions conferred on the Tribunal by the QCAT Act or the LVA;4 and (c) has all the functions of the decision-maker for the reviewable decision being reviewed (the Valuer-General).5 [22] The purpose of the review is to produce the correct and preferable decision.6 [23] The Tribunal must hear and decide a review of the Reviewable Decision by way of a fresh hearing on the merits.7 2 Agreed Court Bundle, pp 154–7. 3 QCAT Act s 19(a). 4 Ibid s 19(b). 5 Ibid s 19(c). 6 Ibid s 20(1). 7 Ibid s 20(2). -- 5 of 25 -- 6 [24] In this proceeding, the Tribunal may:8 (a) confirm or amend the Reviewable Decision; (b) set aside the Reviewable Decision and substitute its own decision; or (c) set aside the Reviewable Decision and return the matter for reconsideration to the Valuer-General, with the directions the Tribunal considers appropriate. [25] The Tribunal’s decision pursuant to each of s 24(1)(a) and (b) is taken to be a decision of the decision-maker for the reviewable decision except for the Tribunal’s review jurisdiction or an appeal under part 8 of the QCAT Act.9 [26] The Tribunal is not required to identify an error in either the process or the reasoning that led to the Reviewable Decision being made, and there is no presumption that the Reviewable Decision is correct.10 [27] I now turn to the s 312 issue. The s 312 issue [28] On 5 March 2025, the Tribunal ordered that, amongst other orders: (a) by Order 1, subject to Orders 2 and 3 below, the hearing of the Application to review a decision be adjourned to a date to be fixed;11 (b) by Order 2, the Body Corporate must file in the Tribunal and give to the Valuer- General a copy of an affidavit deposing to, and exhibiting a copy of, a special resolution by the Body Corporate authorising the bringing of this proceeding, by 4pm on 4 April 2025; (c) by Order 3, if the Body Corporate did not file an affidavit in compliance with that Order, the proceeding would be dismissed without further notice to the parties. [29] There is no dispute that the Body Corporate did not comply with Order 2. [30] At the hearing, I proceeded, without objection, to hear argument on the substantive matter on the basis that if an extension of time were not granted, the Review Application would be dismissed. As I indicated at the hearing, I was not prepared to grant any further adjournment. The result is that if I find that the Body Corporate did not comply with s 312 of the BCCMA by 1 May 2025, the Review Application will stand dismissed.12 If the Body Corporate did comply with s 312 by then, the question that arises is whether the Tribunal’s discretion should be exercised to extend time, nunc pro tunc, to 1 May 2025. [31] I turn to the issue of whether there had been compliance by 1 May 2025. 8 Ibid s 24(1). 9 Ibid s 24(2). 10 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9]. 11 The hearing that was adjourned was listed on 4 March 2025 and an oral application was made by the Body Corporate that the hearing be adjourned to enable the Body Corporate to comply with s 312. 12 There was no suggestion that the Body Corporate had alternatively complied with s 312 between 1 May 2025 and the commencement of the hearing. -- 6 of 25 -- 7 Compliance with s 312? [32] The Body Corporate contends that: (a) the signing of the document entitled ‘Flying Minute’ signed on behalf of each of the lot owners in the Scheme13 satisfied the requirements of s 111 of the BCCMA; and (b) this constituted a special resolution for the purposes of s 312 of the BCCMA. [33] I did not understand the Valuer-General to dispute that the ‘Flying Minute’ satisfied the requirements of s 111 of the BCCMA. [34] Whilst Mr Isdale for the Valuer-General acknowledged at the hearing on 7 May 2025 that the signed flying minute may be sufficient for the purposes of s 312, I did not understand the Valuer-General to concede the issue of compliance, having previously contended that compliance with s 312 requires a special resolution pursuant to s 106 of the BCCMA. [35] Section 312 of the BCCMA provides: (1) The body corporate for a community titles scheme may start a proceeding only if the proceeding is authorised by— (a) if the scheme is a specified two-lot scheme—a lot owner agreement for the scheme; or (b) otherwise—special resolution by the body corporate. (2) However, an owner of a lot included in a specified two-lot scheme may bring or start a prescribed proceeding on behalf of the body corporate even though the body corporate has not decided, by a lot owner agreement, to bring or start the proceeding. (3) Also, the body corporate for a community titles scheme other than a specified two-lot scheme does not need a special resolution to bring or start a prescribed proceeding. (4) In this section— prescribed proceeding, for a community titles scheme, means— (a) a proceeding for the recovery of a liquidated debt against the owner of a lot included in the scheme; or (b) a counterclaim, third-party proceeding or other proceeding, in a proceeding to which the body corporate is already a party; or (c) a proceeding for an offence under chapter 3, part 5, division 4; or (d) a proceeding, including a proceeding for the enforcement of an adjudicator’s order or an appeal against an adjudicator’s order, under chapter 6. [36] Section 111 of the BCCMA is headed ‘Voting other than at general meeting’ and provides: (1) This section— 13 Affidavit of Mr Lonergan filed 1 May 2025, paragraph 8 and Annexure C. -- 7 of 25 -- 8 (a) provides a way for the body corporate for a community titles scheme to decide a motion other than at a general meeting; but (b) applies to a community titles scheme only if the regulation module applying to the scheme says it applies. (2) A resolution on a motion may be passed by the body corporate, and has effect as a resolution without dissent, special resolution or ordinary resolution as may be required for the motion, even though the motion is not placed before and decided at a general meeting of the body corporate, if— (a) a vote on the motion is exercised for each lot included in the scheme; and (b) the vote for each lot is exercised by a person who would be entitled (other than merely as a proxy) to exercise the vote for the lot at a general meeting held to decide the motion; and (c) each vote is a vote for the motion; and (d) each vote is given or confirmed in writing. [37] In my view, s 111 can be seen as a statutory equivalent of the common law principle of unanimous assent,14 also referred to as the ‘Duomatic principle’.15 [38] As to subsection 111(1)(b), the regulation module applying to the Scheme is the Commercial Module, and s 169 of the 2008 Regulation provided (and s 41 of the 2020 Regulation provides) that s 111 does apply. [39] Further, I find that each of subsections s 111(2)(a) to (d) is satisfied, there being no factual dispute as to same. [40] The remaining question is whether satisfaction of s 111 in the present case amounts to a special resolution of the purposes of s 312. [41] The term ‘special resolution’ is defined, in Schedule 6 to the BCCMA, to mean a resolution under section 106. [42] Section 106 of the BCCMA is headed ‘Counting of votes for special resolution’ and provides: (1) This section applies if a motion is to be decided by special resolution at a general meeting of the body corporate for a community titles scheme. (2) One vote only may be exercised for each lot included in the scheme, whether personally, by proxy or in writing. (3) The motion is passed by special resolution only if— (a) at least two-thirds of the votes cast are in favour of the motion; and (b) the number of votes counted against the motion are not more than 25% of the number of lots included in the scheme; and 14 See, e.g., Jalmoon Pty Ltd (in liq) v Bow [1997] 2 Qd R 62, 69; Boz One Pty Ltd v McLellan (2015) 105 ACSR 325, [2015] VSCA 68, [226]. See also Baggott v Whafflm Pty Ltd [2000] QSC 167, [20]. 15 Twin v Deputy Commission of Taxation [2004] 1 Qd R 450, [24]. -- 8 of 25 -- 9 (c) the total of the contribution schedule lot entitlements for the lots for which votes are counted against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots included in the scheme. [43] The definition of ‘special resolution’ and the terms of s 106 remain in the same terms as originally enacted. [44] Section 111, previously numbered s 101A, was inserted in the BCCMA by s 13 of the Natural Resources and Other Legislation Amendment Act 1997 (Qld). The Explanatory Notes to the Natural Resources and Other Legislation Amendment Bill provided: Clause 13 inserts a new section to provide that a resolution may be decided other than at a general meeting, for example if all the owners live overseas a telephone conference or internet email would be appropriate. [45] Although I consider that there is some tension between the definition of ‘special resolution’ and the language of s 106 on the one part, and that of s 111 on the other, I consider that, on their proper construction, a motion passed in accordance with s 111 as, relevantly, a special resolution constitutes a special resolution for the purposes of s 312 of the BCCMA. [46] I accept, as submitted by the Body Corporate, that it is appropriate to apply the principle of statutory interpretation that a specific provision will qualify a general provision has application here. In this regard, it was said by the New South Wales Court of Appeal in Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd:16 [219] There is another basis on which cl 5 should prevail. That is the well- established (and common sense) principle that a specific provision will qualify a general provision. Whereas such principles as ‘the later provision prevails’ have been rarely applied, this principle has been widely applied and provides the default mechanism for resolving intractable conflicts, especially (but not only) within a single instrument. [220] Thus, if apparently inconsistent general and specific provisions cannot be construed textually to resolve the conflict, one should infer that the drafter intended that the general provision be subordinate to the more specific one dealing with the same subject matter. Indeed, in Smith v R, the High Court held that the principle would “dictate” the outcome, observing: It is but common sense that Parliament having before it two apparently conflicting sections at the same time cannot have intended the general provision to have deprived the specific provision of effect. [221] In Ombudsman v Laughton, Spigelman CJ stated in classical terms the principle that the general is subservient to the specific: 19 The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that 16 [2023] NSWCA 256, [219]-[221]. See also Vatner v Chief Commissioner of State Revenue [2025] NSWCA 35, [56]. -- 9 of 25 -- 10 the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character. (citations omitted, underlining added) [47] Section 111 (which is also the later provision) expressly contemplates that a resolution on a motion may be passed by the body corporate, and has effect as a resolution without dissent, special resolution or ordinary resolution as may be required for the motion, even though the motion is not placed before and decided at a general meeting of the body corporate. [48] Given that s 111 encompasses not only special resolutions but also resolutions without dissent and ordinary resolutions, to read s 312 as requiring a resolution passed pursuant to s 106, regardless of compliance with s 111, would effectively neuter s 111. In my view, such an interpretation would conflict with the secondary objects of the BCCMA of promoting economic development by establishing sufficiently flexible administrative and management arrangements for community titles schemes,17 and to provide bodies corporate with the flexibility they need in their operations and dealings to accommodate changing circumstances within community titles schemes.18 [49] I am satisfied that, by 1 May 2025, the requirements of s 312 of the BCCMA were satisfied. [50] The next issue is whether the Body Corporate should be granted an extension of time, nunc pro tunc, to comply with Order 2 of the Decision of the Tribunal. Extension of time [51] The background to the 5 March 2025 orders was that the Valuer-General had raised the issue of whether a special resolution had been passed pursuant to s 312 with the Solicitors for the Body Corporate on 4 December 2024, and again on 22 January 2025. Such a resolution had not been passed by the original date for hearing on 4 March 2025. Order 2 was in the form of a self-executing or ‘guillotine’ order. Compliance was required by 4:00pm on 4 April 2025. On that date, an affidavit by the solicitors for the Body Corporate was filed deposing to the signing of a flying minute to ratify the decision to commence proceedings without the need to call or hold an extraordinary general meeting. However, while it had been signed on behalf of Stockwell Flagstone as owner of three of the lots and by Sandhurst Trustees Ltd as the owner of Lot 5, it had not been signed on behalf of the owner of Lot 7. [52] There is no dispute between the parties, and I am satisfied that, the Tribunal has power to extend time for compliance with an order (including a self-executing order) notwithstanding that the time for compliance has passed.19 In Smith, Dr J R Forbes, Member said:20 [11] It has repeatedly been held that courts have a wide discretion to set aside or vary a self-executing order if its enforcement would cause injustice. 17 See BCCMA s 4(b). 18 See BCCMA s 4(f). 19 See s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld); Smith & Anor v Novena Leasing Pty Ltd (as trustee for) The Elliott Property Trust [2015] QCATA 33 (‘Smith’), [9]–[11]. I also note the Tribunal’s broad procedural powers under s 9(4) of the QCAT Act. 20 Smith [11]–[13]. -- 10 of 25 -- 11 As a statutory authority, the Tribunal does not have inherent powers, but it does have implied powers that are reasonably necessary to give effect to its explicit statutory jurisdiction. In my view, a guarded discretion to relax “guillotine” orders, or their effects, may reasonably be implied in section 61, in the light of sections 3(b), 4(c) and 28(3)(d). [12] This is not to suggest that such a power should be lightly used. No doubt the Tribunal has no wish to see its self-executing orders lose their potency. The authorities that support a degree of flexibility emphasise that the case for leniency must be compelling: The court should not be astute to find excuses ... since obedience to the orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order, and that the failure to obey was due to extraneous circumstances, such failure to obey ... does not disentitle the litigant to rights that he would otherwise have enjoyed. [13] The following non-exhaustive list of relevant considerations was approved by the Victorian Court of Appeal in Brakatselos v ABL Nominees Pty Ltd, namely: (a) the circumstances in which a self-executing order was made; (b) the reasons for non-compliance with it; (c) the prejudice to the defaulting party if relief were not granted; (d) the prejudice to the innocent party if relief were granted. (citations omitted) [53] Whilst the Body Corporate’s failure to comply with Order 2 is to be deprecated, weighing up all the circumstances, I consider that the Body Corporate should be granted an extension of time to comply with that order until 1 May 2025. [54] First, it is not a case of the Body Corporate ignoring Order 2. Two of the three lot owners (owning four of the five lots) had signed the Flying Minute by 4 April 2025. [55] Second, as I have found, the Body Corporate had complied with s 312 prior to the resumed hearing, and the non-compliance with Order 2 did not necessitate a further adjournment of the hearing. [56] Third, whilst the Valuer-General was required to address the non-compliance by the Body Corporate, I consider that this prejudice can be remedied by an order for costs. To that end, I consider it appropriate to order the Body Corporate to pay the Valuer- General’s costs of and incidental to the preparation of the Valuer-General’s submissions filed on 22 April 2025, to be assessed on the Supreme Court scale and on the indemnity basis.21 [57] Fourth, as addressed in my reasons for the grant of the adjournment on 5 March 2025, subject to the Body Corporate passing a special resolution, it would be open for the Body Corporate to bring a fresh proceeding (subject to the s 38 time limit), by objecting to a future maintenance valuation on the ground of an entitlement to the site improvement deduction; or by making a deduction application (in the approved form) 21 I reject the Valuer-General's submission (Resp SS [14]) that it ought be awarded its costs of the hearing on 7 May 2025 because I consider that such costs were incurred in arguing the merits of the case and cannot properly be characterised as costs thrown away by reason of the non-compliance with Order 2. -- 11 of 25 -- 12 at any other time (see ss 38, 39(1), 41(1)(b) of the LVA). In that event, this would require the Tribunal to devote additional resources to dealing with the same subject matter as that in issue in the current Review Application and, in that event, additional Tribunal resources would need to be devoted to that proceeding. [58] Subject to the order for costs identified above, the time for the Applicant to comply with Order 2 of the Decision of the Tribunal dated 5 March 2025 is extended to 1 May 2025. [59] I now turn to the merits of the Review Application. The merits of the Review Application [60] The Body Corporate’s position is set out in the Supplementary Submissions filed on 23 May 2025 (‘App SS’). The Body Corporate contends that s 69 should be construed as follows: (a) ‘… on a proper construction of s 69(2), the fictional assumption of ownership by the body corporate from the true owners “for a valuation”, created by s 69(2), includes an assumption by the body corporate of all facts and circumstances of the true owners which are relevant “for a valuation”. This includes, for example, if the true owner has an entitlement to a site deduction improvement deduction …’;22 (b) ‘The effect of s 69 is that the body corporate, in being “taken to be” the owner “for the valuation”, takes up all of the extant rights of the true owners “for the valuation”’ (including in this case the right to apply for, and be granted, a site improvement deduction).’23 [61] The Valuer-General contends, in essence, that the Body Corporate’s construction would require the reading in of additional words; that it is clear that the entitlement to claim a site improvement deduction requires proof of payment of costs by an applicant for a deduction (here, the Body Corporate) and not some other entity; and that if Parliament had intended for the deduction to be available more broadly than that, it could have easily provided so (but did not).24 [62] In order to determine the construction point, it is necessary to consider various provisions of the LVA. Before doing so, it is useful to consider various relevant provisions of the BCCMA. The relevant provisions of the BCCMA [63] A community titles scheme is: (a) a single community management statement recorded by the registrar identifying land (the scheme land) and (b) the scheme land.25 [64] Land may be identified as ‘scheme land’ only if it consists of: (a) 2 or more lots and (b) other land (the common property for the community titles scheme) that is not included in a lot mentioned in (a).26 22 App SS [43]. 23 Ibid [48]. 24 Resp SS [16]–[21]. 25 BCCMA s 10(1). 26 Ibid s 10(2). -- 12 of 25 -- 13 [65] Common property for a community titles scheme is owned by the owners of the lots included in the scheme, as tenants in common, in shares proportionate to the interest schedule lot entitlements of their respective lots.27 [66] Common property for a community titles scheme includes all ‘utility infrastructure’ forming part of scheme land, other than as identified in s 20(1)(a) or (b) or s 20(2).28 The term ‘utility infrastructure’ is defined to mean: (a) cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services and (b) a device for measuring the reticulation or supply of a utility service.29 Whilst it is unnecessary to decide the point here, it appears at least arguable that, in some circumstances, ‘drains’ and, possibly, ‘sewers’ may constitute site improvements pursuant to s 23(1)(g) or (h) of the LVA. [67] Subject to s 198 of the BCCMA, a body corporate is not liable for a charge, levy, rate or tax on the common property based on the value of land.30 [68] For calculating the value of a lot included in a community titles scheme for the purpose of a charge, levy, rate or tax payable to a local government, the commissioner under the repealed Land Tax Act 1915 (Qld) or other authority, the value of the scheme land is apportioned between the lots included in the scheme in proportion to the interest schedule lot entitlement for each lot.31 The relevant provisions of the LVA [69] The main purpose of the LVA is to provide for how land is to be valued for particular other Acts.32 [70] The Valuer-General must decide the value of land, as provided for under the LVA, for the purposes mentioned in s 6 of the LVA.33 A decision under s 5(1) of the LVA is a ‘valuation’ of the land.34 The types of valuations are ‘annual valuations’ and ‘maintenance valuations’.35 The respective purposes for a valuation are set out in s 6 of the LVA. [71] The value of land (as affected by any other relevant provision of Chapter 2 of the LVA) for ‘non-rural land’36 is its ‘site value’ (as determined in accordance with Division 3 of Part 2 of Chapter 2).37 There is no dispute that the Scheme land is ‘non- rural land’. [72] If land is improved, its site value is its expected realisation under a bona fide sale assuming all non-site improvements for the land had not been made.38 However, the land’s site value is affected by any other relevant provisions of Chapter 2.39 The term 27 Ibid s 35(1). 28 Ibid s 20. 29 Ibid sch 6. 30 Ibid s 194(2). I consider that s 198 is not material to the construction issue in this case. 31 Ibid s 194(1). See also s 29 of the Land Tax Act 2010 (Qld). 32 LVA s 4. 33 Ibid s 5(1). 34 Ibid s 5(2). 35 Ibid s 5(3). 36 As defined in LVA s 8. 37 LVA s 7, sch (definition of ‘site value’). 38 Ibid s 19(1). 39 Ibid s 19(2). -- 13 of 25 -- 14 ‘non-site improvements’, to land, means work done, or material used, on the land other than a ‘site improvement’ (whether or not they add value to the land).40 [73] The term ‘site improvements’ is defined by reference to s 23 of the LVA. It includes, relevantly, restoring, rehabilitating or improving the surface of the land by filling, grading or levelling, not being irrigation or conservation works,41 and any other works done to the land necessary to improve or prepare it for development.42 However, such work is a site improvement only to the extent it increases the land’s value, and it ceases to be a site improvement if the benefit is exhausted on the valuation day.43 Also, excavating the land for footings or foundations or for underground building levels is not a site improvement.44 [74] Subdivision 1 of Division 5 of Part 2 of Chapter 2 deals with a deduction for site improvement costs. By s 42, the Valuer-General must consider a deduction application and decide whether to refuse to grant the applicant a site improvement deduction or grant the applicant a site improvement deduction for all or part of the site improvements the subject of the deduction application.45 [75] The provisions critical to the parties’ respective contentions are ss 38, 39(1), 41 and 69. [76] Section 38 provides: This subdivision provides for the granting of a deduction (a site improvement deduction) to particular owners of land for site improvements to their land paid for by them in the previous 12 years. Note— See also chapter 9, part 5 (Recording of site improvement deductions). (underlining added) [77] Subsection 39(1) provides: An owner of land may apply to the valuer-general for a site improvement deduction (a deduction application). [78] Section 41 provides: (1) A deduction application may be made— (a) as an objection ground for an objection, in the way provided for under section 113; or (b) at any other time in the approved form. (2) In either case, the application must— (a) state the following— 40 Ibid s 24. 41 Ibid s 23(1)(e). 42 Ibid s 23(1)(h). 43 Ibid s 23(2). 44 Ibid s 23(3). 45 Ibid s 42(1). -- 14 of 25 -- 15 (i) full details of the site improvements the subject of the application, including the cost of the works for the improvements; (ii) who carried out the works; (iii) when the works were finished; and (b) be accompanied by— (i) evidence that the applicant paid for the improvements in the last 12 years and when the payment was made; and (ii) all documents in the applicant’s possession or control relating to the cost of the works for the improvements. (underlining added) [79] Section 69 (in Division 5 of Part 3 of Chapter 2) provides: (1) The valuer-general must not value lots in a community titles scheme separately but must instead value the scheme land for the scheme— (a) as an undivided whole; and (b) as if it were owned by a single owner. (2) For the valuation, and objection and appeal against the valuation, the body corporate for the community titles scheme is taken to be the scheme land’s owner. (3) The body corporate must be shown in the valuation as the scheme land’s owner. (4) In this section— body corporate, for a community titles scheme, means the body corporate under the BCCM Act for the scheme. scheme land, for a community titles scheme, means scheme land under the BCCM Act for the scheme. (underlining added) Relevant principles of statutory construction [80] In DZY (a pseudonym) v Trustees of the Christian Brothers,46 a plurality of the High Court summarised the principles of statutory construction: The principles of statutory construction are well established. The language which has actually been used in the text, in light of its context and purpose, is the surest guide to legislative intention. One reason that the context and purpose of a provision are important to its proper construction is that an object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. Or, as was explained in Project Blue Sky Inc v Australian Broadcasting Authority, statutory construction requires deciding what the legal meaning of the relevant provision is “by reference to the language of the instrument viewed as a whole”. Further, the purpose of the legislation is not to be derived from any 46 [2025] HCA 16, [23] (Gageler CJ, Gordon, Edelman and Gleeson JJ). -- 15 of 25 -- 16 a priori assumption about the desired reach or operation of the relevant provisions. (citations omitted) Context [81] The Body Corporate’s supplementary submissions trace the change in legislation and the basis of land valuation from the Valuation of Land Act 1944 (Qld) (‘the VOLA’) to the LVA and from valuing land on the basis of its ‘unimproved value’ to, relevantly, its ‘site value’ (including ‘site improvements’) and referencing various provisions of the Explanatory Notes to the Land Valuation Bill 2010 (Qld).47 The Body Corporate also points out that the provisions of s 69(2) and (3) are in near identical terms to s 26A(2) of the VOLA. [82] Whilst I consider that the matters raised by the Body Corporate on the subject of context provide useful background, I do not find that they provide particular guidance as to the proper construction of the provisions the subject of this matter. [83] For example, the Explanatory Notes provided, amongst other provisions: (a) at page 11: In order to ensure that the introduction of site value will not disadvantage landowners of land currently being developed and to ensure it will not have an adverse affect on current and future development programs, the Bill requires the valuer-general to determine a reasonable allowance for site improvements to the land carried out by the owner after commencement and deduct the value of these improvements for up to 12 years or on sale of the property, whichever occurs first. This effectively freezes the inclusion of site works in the valuation during the preparation of the land for development. An allowance will not be made for site works if the current owner of the land was not the owner when the site improvements were made. (b) at page 30: Clause 38 introduces the concept of deducting from the site value of a parcel an amount for site improvements to the land undertaken and paid for by the current owner of the land in the past 12 years. (underlining added ) (c) at page 39: Clause 69 replaces section 26A of VoLA (Valuation for community titles scheme) and clarifies that the valuer–general must not make a valuation of the individual lots in a community titles scheme, but must value the scheme land as if it was owned by a single owner. This direction not to make a valuation clarifies the previous section which contained the words “is not required to value the lots”. That expression appeared to contain an option which, if implemented, would have made the operations of the Community Titles legislation inoperative because it would have required that the valuation of the whole land to be 47 App SS [9]–[23]. -- 16 of 25 -- 17 apportioned by a revenue gatherer to calculate the valuation of the lots for rating and land tax purposes. The clause also stipulates that the body corporate must be shown as the scheme’s owner on the valuation notice and that the body corporate is the owner of the scheme land for valuation, objection and appeal purposes. This part clarifies that an owner of a lot may not object to, or appeal against, an apportionment of a valuation made by a revenue gatherer to assess rates or land tax. (underlining added ) [84] As I read the Explanatory Notes, they do not suggest that the intention of the legislature was that the relevant provisions of the LVA, in particular s 69, are to be construed in the manner contended for by the Body Corporate. Analysis [85] I accept that an application for a site improvement deduction may form part of the valuation process (see, in particular, ss 19(2), 43 and 44 of the LVA). [86] The express language of s 38 requires that the owner of the land has paid for the site improvements in the previous 12 years.48 Whilst s 69 provides that a body corporate for a community titles scheme is taken to be the scheme land’s owner for the valuation, objection and appeal against the valuation, it does not provide that the body corporate is taken to have paid for a site improvement paid for by a lot owner (or, if it be relevant, the developer of the scheme). [87] In my view, the Body Corporate’s contentions do not involve a construction based on a choice between different grammatical meanings reasonably open on the language adopted. I accept the Valuer-General’s contention that the Body Corporate’s construction involves the reading in of words. For the Body Corporate’s construction to succeed, it requires that a modified construction be adopted as if the respective statutory provisions contained additional words, in circumstances where it cannot be contended that this is a case involving a straightforward grammatical drafting error. [88] For the following reasons, I consider that the Body Corporate’s construction should be rejected. [89] First, consistently with the facts of the present case, the effect of the Body Corporate’s construction is that if a single lot owner in a community titles scheme carries out, and pays for, site improvements to that lot owner’s lot, such improvements are taken to be improvements to the whole of the scheme land. This notional state of affairs would mean that the lot owner in question would receive only a proportion of the benefit that would flow from a successful deduction application by the body corporate. Further, as a corollary, the other lot owners would receive a windfall benefit resulting from a reduction of the proportionate value of their individual lots, notwithstanding that no site improvements were carried out to ‘their land’ (see s 38) and that they have not contributed to the cost of the site improvements. It is not evident from a consideration of the LVA as whole that such an outcome was the intent of the legislature. I consider that such an outcome would be anomalous. 48 See also LVA s 41(2)(b)(i). -- 17 of 25 -- 18 [90] Second, I reject the Body Corporate’s contention that a site improvement deduction could never be granted in favour of a body corporate.49 [91] Subsection 159(1) of the BCCMA provides that: The regulation module applying to a community titles scheme may provide for making improvements to the common property, including making improvements for the benefit of the owner of a lot included in the scheme. [92] The community management statement for the Scheme provided that the Commercial Module applies. In my view, prior to 1 March 2021 the applicable Regulation was the Body Corporate and Community Management (Commercial Module) Regulation 2008 (Qld) and, thereafter, the Body Corporate and Community Management (Commercial Module) Regulation 2020 (Qld). [93] Section 119 of the 2008 Regulation and s 133 of the 2020 Regulation are in the same terms: The body corporate may make improvements to the common property if— (a) the improvements are authorised by ordinary resolution; or (b) an adjudicator, under an order made under the dispute resolution provisions, decides the improvements are reasonably necessary for the health, safety or security of persons who use the common property and authorises the improvements. [94] The term ‘improvement’ is defined in the BCCMA as follows: improvement includes— (a) the erection of a building; and (b) a structural change; and (c) a non-structural change, including, for example, the installation of air conditioning. Note— Change includes addition—see the Acts Interpretation Act 1954, schedule 1, definition change. [95] Given the inclusionary nature of the definition and the wide terms of subsection (c), it seems to me that the definition could encompass one or more site improvements within the meaning of s 23 of the LVA. However, I accept that this would be uncommon. By the same token, I consider that in many community titles schemes, it would be uncommon for site improvements to be carried out by a lot owner after the establishment of the scheme. For example, in a residential apartment development, it would ordinarily be the case that site improvements within the meaning of that term in s 23 would be carried out by the developer preparatory to construction of the building or buildings (and, consequently, prior to establishment of the community title scheme). In such cases, it would seem likely that the developer would claim any available site improvement deduction for such site improvements. [96] Third, in my respectful view, there is an element of circularity in the Body Corporate’s submission that t he effect of s 69 is that a body corporate, in being taken to be the 49 App SS [41]. -- 18 of 25 -- 19 owner for the valuation, ‘takes up all of the extant rights of the true owners’ for the valuation.50 For example, under the LVA, the owner of a lot in a community titles scheme has no right to object to, or appeal against, an apportionment of a valuation for the purpose of assessing rates or land tax. This is the effect of s 69 of the LVA (as confirmed by the Explanatory Notes in respect of clause 69 of the Bill). Consequently, there is no such right of a lot owner that could be taken up by a body corporate. [97] Fourth, although the Body Corporate’s focus is on s 69, I consider that s 38 must also be considered in this context. Section 38 provides for the granting of a site improvement deduction to ‘particular owners of land for site improvements to the land paid for by them in the previous 12 years’. I consider that, on the proper construction of the LVA as a whole, the reference to ‘particular owners’ in s 38 (and ‘owner’ in s 39(1)) should be construed in conjunction with s 69 such that the respective terms encompass a body corporate that is taken to be the scheme land’s owner. However, s 38 requires that the ‘particular owners’ have ‘paid for’ the site improvements within the relevant period. In my view, the Body Corporate’s construction necessarily requires that the phrase ‘paid for by them’ in s 38 be construed as including payment by a lot owner in a community titles scheme.51 [98] The principles to be applied in this context were addressed by the High Court in Taylor v The Owners - Strata Plan No 11564.52 It was said by the plurality:53 [35] In Young Spigelman CJ suggested that the authorities do not warrant the court supplying words in a statute that have been "omitted" by inadvertence per se. Construing the words actually used by the legislature in "their total context", Spigelman CJ suggested that the process of construction admits of reading down of general words or giving the words used an ambulatory operation. His Honour cited Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation as an instance of the former and Bermingham v Corrective Services Commission (NSW) as an instance of the latter. In R v PLV his Honour expanded on his analysis in Young, observing: "The authorities which have expressed the process of construction in terms of 'introducing' words to an Act or 'adding' words have all, so far as I have been able to determine, been concerned to confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest. I am unaware of any authority in which a court has 'introduced' words to or 'deleted' words from an Act, with the effect of expanding the sphere of operation that could be given to the words actually used. … There are many cases in which words have been read down. I know of no case in which words have been read up." (emphasis in original) [36] In Leys the Victorian Court of Appeal was critical of Spigelman CJ's characterisation of purposive construction as a process of construing "the words actually used" (emphasis in original). Their Honours said that the process requires the court to determine whether the modified construction is reasonably open in light of the statutory scheme and against a background of the satisfaction of Lord Diplock's three conditions. Their Honours questioned the utility of the distinction 50 App SS [48]. 51 Subsection 41(2)(b)(i) of the LVA would also require a similar construction. 52 (2014) 253 CLR 531. 53 Ibid [35]–[40] (French CJ, Crennan and Bell JJ). -- 19 of 25 -- 20 between "reading up" and "reading down" and rejected the proposition that a purposive construction may not result in an expanded operation of a provision. [37] Consistently with this Court's rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot. [38] The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature". [39] Lord Diplock's three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution (a firm)) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that "the modified construction is reasonably open having regard to the statutory scheme" because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, "[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances." [40] Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be "too far-reaching". In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution. -- 20 of 25 -- 21 (citations omitted, underlining added) [99] In my view, the Body Corporate’s modified construction is not consistent with the express language used by the legislature and I am not satisfied that the construction contended for by the Valuer-General would defeat or be contrary to the purpose of the LVA in general, or Division 5 of Chapter 2 in particular. I consider that the adoption of the Body Corporate’s construction would involve ‘judicial legislation’ rather than construction. [100] It follows that the correct and preferable decision is that the decision made by the Valuer-General on 19 April 2022 (confirming the Valuer-General’s original decision dated 21 February 2022) should be confirmed. [101] This is sufficient to dispose of the Review Application. [102] However, the Valuer-General also argues that the Tribunal cannot be satisfied that the site improvements in question were paid for by Stockwell Flagstone. For completeness, I will address this argument. Evidence re payment for site improvements [103] Even if the Body Corporate’s construction had been preferred, the Body Corporate’s case required the Tribunal to be satisfied that the site improvements be paid for by a lot owner in the Scheme, namely Stockwell Flagstone. [104] There is no dispute that Stockwell Flagstone was a lot owner in the Scheme. [105] Stockwell Flagstone contends that it paid for the site improvements by reason of the following:54 (a) it was, and is, the registered proprietor of the land on which site improvements was carried out (and which land formed part of the Scheme); (b) Stockwell Flagstone engaged Stockwell Development Group Pty Ltd (‘Stockwell Development’) under a development agreement to cause development works to be undertaken which included engaging and paying for contractors and/or subcontractors to undertake the works required to complete the site improvements for the development price; (c) Stockwell Development engaged Stockwell Design Pty Ltd (‘Stockwell Design’) under a design and construct contract to complete the design and construction of all works in connection with the site improvements for a contract sum of $18.5 million; (d) Stockwell Design engaged subcontractors to undertake the work required for the site improvements; and (e) Stockwell Design paid invoices for the work undertaken by the subcontractors. [106] The Valuer-General points to the following matters:55 (a) that the development agreement was only between Stockwell Flagstone and Stockwell Development (and not Stockwell Design); 54 App Submissions dated 29 January 2024 [34]–[37]. 55 Resp SS [16]–[18]. -- 21 of 25 -- 22 (b) the development agreement provided, by clause 13.1, that except as otherwise set out, ‘the Developer will’, relevantly, ‘where possible, incur the Development Cost in its name only and not in the name of the Land owner’; (c) there is no actual evidence of any payment having been made by Stockwell Flagstone in respect of the costs for which the site deduction is sought (whether to Stockwell Design or Stockwell Development), apart from an assertion, or assumption, by Ms Madsen that, ‘[p]ursuant to the Development Agreement’ Stockwell Flagstone paid the ‘Development Price’ to Stockwell Development; and there is an absence of proof of actual payment of the Development Price. [107] In my view, there is nothing in the language or apparent purpose of s 38 (or s 41(2)(b)(i)) of the LVA that would impose a requirement that there be a direct payment by the landowner to the contractor who performs the site improvement works (or that there be a direct contractual relationship between the landowner and the contractor). Given the nature and scope of the various ‘site improvements’ identified in s 23, it would be likely that in many cases the landowner would engage (and pay) a construction company that, in turn, may engage subcontractors to perform part or all of the works. In my view, whilst the particular arrangements would need to be considered on a case by case basis, the denial of a site improvement deduction merely because the landowner did not pay the subcontractors direct would tend to defeat the purpose of Division 5 of Chapter 2 of the LVA. [108] What were the arrangements in the present case? [109] Stockwell Design engaged subcontractors to undertake the work required for the site improvements and the invoices for the work undertaken by the subcontractors were paid for by Stockwell Design.56 [110] Stockwell Design undertook that work pursuant to a design and construction contract entered into on or about 13 May 2019. That contract was entered into not with Stockwell Flagstone but with Stockwell Development Group Pty Ltd (‘Stockwell Development’).57 Consequently, in the present case, there was an entity interposed between the landowner (Stockwell Flagstone) and the designer/builder (Stockwell Design). [111] The contractual arrangement between Stockwell Flagstone and Stockwell Development was governed by a development agreement entered into between those parties on or about 30 July 2018.58 Stockwell Development paid to Stockwell Design the contract sum in the amount of $18.5 million in consideration for Stockwell Design completing the work required under the design and construction contract, which included the design and construction of all works in connection with the site improvements.59 [112] The Body Corporate’s case is that it should be concluded that Stockwell Flagstone paid for the site improvements, given the payment by Stockwell Development to Stockwell Design, because Stockwell Flagstone paid Stockwell Development the ‘development price’ in consideration for Stockwell Development causing the development works to be undertaken (and that this included engaging and paying for 56 Statement of Ms Madsen [19]–[20]. 57 Ibid [16]–[18]. 58 Ibid [13]–[14]. 59 Ibid [18]. -- 22 of 25 -- 23 contractors and/or subcontractors to undertake the works required to complete the site improvements). The Valuer-General criticises the lack of ‘actual evidence’ of payment being made by Stockwell Flagstone. Whilst Ms Madsen’s evidence on this matter is sparse,60 the Valuer-General did not seek to cross-examine Ms Madsen or otherwise challenge the receipt of that evidence. [113] The Valuer-General further submits that the Body Corporate has failed to adequately identify the means by which the costs actually paid for by Stockwell Design can be attributed to Stockwell Flagstone, and also points to clause 13.1(a) of the development agreement in support of this contention. In my view, this is one of a number of provisions of the development agreement relevant to the question of whether the Tribunal is satisfied that Stockwell Flagstone did, in fact, pay for the site improvements. [114] I consider that the following provisions of the development agreement are material to this question: (a) Stockwell Development was responsible for the management and administration of the development on a day-to-day basis and undertook to do all things reasonably necessary or desirable, acting reasonably and commercially, to implement the development including, ‘funding and paying all Development Costs’;61 (b) Stockwell Development agreed to bear all risks associated with carrying out the development and Stockwell Development released and discharged Stockwell Flagstone to the fullest extent permitted by law from and against all actions, claims and demands for, amongst other things, ‘funding the construction of the Development’; 62 (c) except as otherwise set out in the development agreement, Stockwell Flagstone was under no obligation to pay or to procure the provision of funding for the Development Costs;63 (d) except as otherwise set out in the development agreement, Stockwell Development would; (i) where possible, incur the Development Costs in its name only and not in the name of Stockwell Flagstone;64 and (ii) be liable for and pay when due and owing the Development Costs arising from the date of the development agreement (whether incurred in the name of Stockwell Development or Stockwell Flagstone);65 (e) where a development cost was incurred in the name of Stockwell Flagstone:66 60 Ibid [15(a)]. 61 Development Agreement clause 10.2(c). 62 Ibid clause 11.2(b). 63 Development Agreement, clause 12.3. 64 Ibid clause 13.1(a). 65 Ibid clause 13.1(b). 66 Ibid clause 13.3. -- 23 of 25 -- 24 (i) Stockwell Flagstone must notify Stockwell Development of the Development Costs within five business days after receiving an invoice for the Development Cost; (ii) Stockwell Flagstone must pay the relevant Development Cost by the due date; and (iii) Stockwell Development must reimburse Stockwell Flagstone for the Development Cost paid by Stockwell Flagstone within 14 days after receiving notice in accordance with clause 13.3(a). [115] In my view, the development agreement imposed upon Flagstone Development the obligation to both fund and pay for all of the ‘Development Costs’. There is no evidence that Stockwell Development did not, in fact, fund and pay for all of the Development Costs. Notwithstanding Stockwell Flagstone’s payment of the Development Price to Flagstone Development, I am not satisfied that the material establishes that (even on the Body Corporate’s construction of the legislation) the site improvements were ‘paid for’67 by Stockwell Flagstone. [116] It follows that, even if the Body Corporate’s construction had been preferred, it was not entitled to the grant of a site improvement deduction because no lot owner in the Scheme paid for the site improvements pursuant to s 38 of the LVA. Orders [117] For the reasons set out above, I make the following orders:68 1. The time for the Applicant to comply with Order 2 of the Decision of the Tribunal dated 5 March 2025 is extended to 1 May 2025. 2. The Applicant must pay the Respondent’s costs of and incidental to the preparation of the Respondent’s submissions filed on 22 April 2025, to be assessed on the Supreme Court scale and on the indemnity basis. 3. The decision made by the Respondent on 19 April 2022 (confirming the Respondent’s original decision dated 21 February 2022) is confirmed. 4. The Respondent must file in the Tribunal two (2) copies of, and give to the Applicant one (1) copy of, written submissions on the question of costs, no longer than five (5) pages, within 14 days of the date of receipt of the Decision. 5. The Applicant must file in the Tribunal two (2) copies of, and give to the Respondent one (1) copy of, written submissions in response, no longer than five (5) pages, within 14 days of receipt of the Respondent’s submissions. 6. The Respondent must file in the Tribunal two (2) copies of, and give to the Applicant one (1) copy of, any written submissions in reply, no 67 Pursuant to s 38 of the LVA. 68 In respect of costs, I note that the Valuer-General seeks the Valuer-General’s costs of the proceeding: Resp SS [34]. -- 24 of 25 -- 25 longer than three (3) pages, within 14 days of receipt of the Applicant’s submissions. 7. Unless other directed, the issue of costs will be determined on the papers, without an oral hearing. -- 25 of 25 --