Drivas Lakes Pty Ltd v Valuer-General [2018] QLC 31

LAND COURT OF QUEENSLAND CITATION: Drivas Lakes Pty Ltd v Valuer-General [2018] QLC 31 PARTIES: Drivas Lakes Pty Ltd ACN 110 117 149 (appellant) v Valuer-General (respondent) FILE NOs: LVA626-17 LVA628-17 DIVISION: General division PROCEEDING: Applications for disclosure DELIVERED ON: 13 September 2018 (reasons delivered orally on this date) DELIVERED AT: Brisbane HEARD ON: 13 September 2018 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDERS: 1. The Respondent's General Application filed on 21 August 2018 is dismissed. 2. The Appellant's General Application filed on 10 September 2018 is allowed in part and is otherwise dismissed. 3. By 4pm on Friday 21 September 2018, the Respondent must provide to the Appellant, by way of disclosure, a supplementary list and copies of documents relevant to infrastructure charges and infrastructure credits in relation to the development of the Subject Properties prior to and proposed at the time of purchase. -- 1 of 5 -- 2 4. In the alternative, by 4pm on Friday 21 September 2018, the Respondent must file and serve an affidavit in accordance with rule 223 of the Uniform Civil Procedure Rules 1999. 5. No order as to costs for both applications. 6. By 4pm, Friday, 21 September 2018 the parties must prepare and deliver to the valuation expert witnesses a single brief of instructions which: a. identifies any issue any party considers the experts need to address; and b. includes any information or documents any party considers relevant to those issues. 7. On or before 4pm, Friday, 5 October 2018, a "meeting of experts" (as that term is defined in the Land Court Rules 2000) must take place between the valuation witnesses. 8. On or before 4pm, Monday 29 October 2018 the valuation witnesses must produce a "joint report" (as that term is defined in the Land Court Rules 2000). 9. A copy of the completed and signed joint report prepared in accordance with order 8 must be provided to each party by the valuation witnesses. 10. The Appellant must file the joint report in the Land Court Registry within two (2) days of its receipt. 11. Except by leave of the court, the parties are confined to the evidence in the reports and statements filed in accordance with these Orders. 12. The parties have liberty to apply on two (2) business day notice in writing each to the other. -- 2 of 5 -- 3 APPEARANCES: R Traves QC (instructed by Colin Biggers & Paisley) for the appellant S Fynes-Clinton of Counsel (instructed by In-house Legal, Department of Natural Resources and Mines) for the respondent Reasons given orally on 13 September 2018: [1] Before I address either application in any substance, I will make some observations relevant to both. I have observed, recently, a trend in the LVA appeals to make applications for disclosure. Now, this Court has recourse to the UCPR to the extent our procedure is not otherwise prescribed by the Land Court Act or Rules. But there are provisions which are relevant and which guide the Court in exercising its powers under those Rules. Both of them have been mentioned by counsel today. Firstly, section 7 of the Land Court Act, 7(b), the requirement to: ...act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts. [2] And the other provision, of course, is the section in the Land Valuation Act which really sets up as a starting point in LVA appeals that parties will bear their own costs and identifies circumstances in which the Court may make orders as to costs against the party. I will not go to them in any detail but they relate to the conduct of the parties in the appeal. I have observed in some of the correspondence between the Valuer-General and some representatives in these matters, a recourse to self-serving letters which misstates the situation or attempt to colour how the Court will approach such matters. [3] Now, that is a general observation. It is not confined to this particular case although there are examples in this case and one is the letter that is exhibit 1. Now, I do not want it to be thought that I am pointing the finger only at the Valuer-General. In this regard, the same can be said of the appellant and an example in this case, is the letter from the former representative of the appellant which misstated there were no further documents to disclose. Since then, the Valuer-General filed an application. There -- 3 of 5 -- 4 was further limited disclosure, some of which, the appellant contests, is actually relevant – strictly relevant or disclosable. [4] Again, so it is general remarks. I will turn to the applications. As to the Valuer- General’s application, I am dismissing it on the basis that Mr Fynes-Clinton properly conceded that if he had received the affidavit of Mr Drivas before today, he would not have pursued the application today. But I have not awarded costs of today’s hearing for the following reasons. [5] Firstly, I must accept that the application was brought in circumstances where the Valuer-General had some cause for believing there would be further documents. However, the cost order sought relates to the hearing today, not to the cost of preparing and filing that application. The appellant was not required to file a rule 223 affidavit by my order from the 30th of August, I think, but was required to respond to the substance of the application and I consider Mr Lonergan’s affidavit did do that. Although Mr Traves’ reading of Mr Lonergan’s affidavit is somewhat generous, particularly in relation to the due diligence aspect, it is a reasonable inference from the other matters that he deposed to that he was addressing due diligence even though he did not explicitly say so and that matter could have been put beyond doubt by conversation between the practitioners. [6] Instead, a letter was sent on a misstatement of the effect my order. Although Mr Drivas’ affidavit does include some further disclosure, I accept there is some doubt that it fits the disclosure test of direct relevance to the matter in issue, or at least some of it. In those circumstances, I consider the proper approach is to make no order for costs on that application. [7] As to the appellant’s application, it seeks orders in relation to a number of categories of documents but my attention was directed to only one category set out in 1(a) of the application and I presume, because of that, that the appellant does not pursue the application in relation to any of the other categories. [8] I could not find anything in my quick reading of the material, while I stood this matter down, to support an application in relation to the other categories of documents and -- 4 of 5 -- 5 it did smack somewhat of a sword being used in defence. It is somewhat ironic, though, that the application is based on documents that came to light as a result of the Valuer-General’s application. That email exchange does refer – I think it is fair to say, to a number of properties but it seems to be conceded that one of the properties would be the subject property. I may have misunderstood counsel’s submission on the point but it seemed to me that it was accepted that one of the Yarrabilba properties was this property and I am allowing the application to the extent that I will announce, in a moment, on that basis only. As to the balance of the application, as I said, there is no justification in either the material or the submissions for making an order on those categories. I note the appellant did not provide proper notice under the Rules. Again, it is ironic that Mr Prasad’s affidavit in response is on information and belief, something that he asserted Mr Lonergan could not do. [9] I have decided I will make an order on the appellant’s application in terms of paragraphs (1)(a) and (2) only and I will make no order as to costs because of non- compliance. Well, no order was sought by Mr Traves because the time requirement had not been complied with. So I think it is clear from that what has happened in relation to both of those applications. [10] I hope that, if there are further disputes between the parties about disclosure in this matter relating to infrastructure charges or anything else, that there will be more active cooperation between the practitioners in trying to identify and deal with those documents rather than waste this Court’s time and your client’s money with these sorts of applications. (Orders made) FY KINGHAM PRESIDENT OF THE LAND COURT -- 5 of 5 --