Eastern John Pty Ltd as TTE v Valuer-General [2017] QLC 61

LAND COURT OF QUEENSLAND CITATION: Eastern John Pty Ltd as TTE v Valuer-General [2017] QLC 61 PARTIES: Eastern John Pty Ltd as Trustee for Woodridge Trust (applicant) v Valuer-General (respondent) FILE NO: LVA663-17 DIVISION: General Division PROCEEDING: Jurisdiction – appeal against annual land valuation. DELIVERED ON: 21 December 2017 DELIVERED AT: Brisbane HEARD ON: 15 November 2017 HEARD AT: Brisbane JUDICIAL REGISTRAR: GJ Smith ORDER: The Court has jurisdiction to hear and determine the appeal. CATCHWORDS: PRACTICE AND PROCEDURE – Failure to file notice of appeal in time – Land Valuation Act 2010 sections 156, 157 and 158 – transfer of subject not registered – titles office requisition – owner – new owner – requisition by Registrar – appellant not objector – substantial blaze – whether reasonable excuse exists. Land Valuation Act 2010, s 156, s 157, s 158 AG Russell v The Crown (1992-93) 14 QLCR 202 Director-General, Department of Transport v Congress Community Development and Education Unit Ltd (1998) 19 QLCR 168 Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v. Valuer-General (1983) 9 QLCR 13 -- 1 of 6 -- 2 APPEARANCES: Ms H Nguyen, a director of the applicant, in person. Mr P Prasad, Principal Lawyer, In-house Legal, Department of Natural Resources and Mines, for the respondent. Background [1] In this proceeding the Court is required to determine whether it has jurisdiction pursuant to s 157 of the Land Valuation Act 2010 (the LVA) to hear and determine an appeal against an annual valuation as at 1 October 2016 concerning a property located at Woodridge within the Logan City Council local government area. [2] The applicant, Eastern John Pty Ltd is represented in this proceeding by solicitor Ms Hien Nguyen. Ms Nguyen advised the Court at the commencement of the hearing of this matter that she is also a director of the applicant, while the respondent is represented by Mr P Prasad, Principal Lawyer, In-house Legal, Department of Natural Resources and Mines. [3] The Notice of Appeal was filed on 18 September 2017, some 7 days after the expiry of the appeal period and therefore can only be heard and determined if “reasonable excuse” is established as required by s 158 of the LVA. [4] An additional issue concerns a requisition forwarded on 13 October 2017 by the Senior Deputy Registrar to the applicant’s solicitor Ms Nguyen. The requisition relates to what, at first glance appears to be a defect arising from the identification of Eastern John Pty Ltd as Trustee for the Woodridge Trust (Eastern John) as appellant in circumstances where the respondent’s objection decision notice concerning the subject property identifies a different entity as the objector. Legislation [5] Section 156 of the LVA – New owners provides – (1) This section applies if — (a) an objection decision notice for an objection is issued to the person who was then the owner of the land (the former owner); and (b) someone else (the new owner) later becomes the owner of the land; and (c) the new owner has given an ownership change notice for the change of ownership of the land. -- 2 of 6 -- 3 (2) The new owner – (a) is taken to have received the objection decision notice when it was issued to the former owner; and (b) does not have the right to be issued with a fresh objection decision notice for the objection. (3) If the former owner has not already appealed against the objection (an existing appeal), the new owner may, subject to section 157 , appeal against the decision. (4) If there is an existing appeal – (a) the process under this part for appeals (the appeals process) applies to the new owner; and (b) the new owner becomes the appellant and may carry on the appeal in the new owner’s name; and (c) any period under this part applies to the new owner as if the new owner had been the owner of the land since the first day of that period. [6] Section 157 (2) of the LVA provides – (2) Subject to section 158, an appeal cannot be started after 60 days after the day of issue stated in the objection decision notice (the appeal period). [7] Section s 158 of the LVA provides – (1) This section applies if a valuation appeal notice is filed after the appeal period has ended. (2) The Land Court can hear the appeal only if – (a) the valuation appeal notice was filed 1 year or less after the objection decision notice was issued; and (b) the appellant satisfies the court there was a reasonable excuse for not filing the notice within the appeal period. Example of reasonable excuse— The notice of the valuer-general’s decision or the valuation appeal notice was lost or delayed in the ordinary course of post. Evidence [8] The evidence on behalf of the applicant is comprised of a statement by Ms Nguyen dated 15 September 2017 and annexed documents which included the issued Objection Decision Notice, the proposed Notice of Appeal, a vendors consent/authorisation document, Title Office correspondence, and an ABC news article dated 26 August 2017 concerning a substantial blaze at a shopping complex in Inala. The statement and related documents were admitted into evidence (Ex 1) without objection from the respondent. [9] Although no evidence was presented on behalf of the respondent, Mr Prasad made concessions concerning the appellant’s eligibility to appeal and a related issue of -- 3 of 6 -- 4 whether Eastern John could be considered an owner as defined by the LVA1. These reasonable concessions most likely avoided the need to adjourn the proceedings to enable further evidence to be placed before the Court. [10] In summary, the evidence on behalf of the applicant seeks to demonstrate that the failure to file the notice of appeal during the appeal period was occasioned by uncertainty and delays associated with registration of the stamped transfer of subject property to Eastern John and also delayed as a consequence of the blaze on 26 August 2017 which destroyed a shopping centre/medical practice owned by Ms Nguyen’s extended family. Submissions [11] Ms Nguyen detailed the facts and events surrounding her failure to lodge the appeal within the prescribed period and submitted that the circumstances were of an extenuating nature and that “some relaxation in respect to the time limitation”2 might be afforded to the applicant. [12] Mr Prasad, on behalf of the respondent indicated that a finding of reasonable excuse was not opposed in the circumstances and directed the Court to the following paragraph from Gold Coast Milk Pty Ltd and South Coast Co-operative Dairy Association Limited v. Valuer-General where the then President of the Court observed: "I think that the 'extraordinary or unusual circumstances' referred to in the proviso to the subsection should be read as being of a general nature and the words should be construed objectively. It is not possible by way of illustration to be exhaustive as to the type of such circumstances. I would instance fire, flood or tempest, sudden illness, accident or misadventure, community disturbance and circumstances of this nature so arising must relate to an appellant's failure to serve the copy of his appeal on the Valuer-General."3 [13] In agreeing that the circumstances of the present application could be considered to be of a “substantial nature” Mr Prasad also referred to the following extract from AG Russell v The Crown: "Whilst it has been laid down that each case depends on its own particular facts, it is clear from the above authorities that the reasonable cause or explanation must be substantial. The test is an objective one. It is of little use for an appellant for example, merely to say without more that he did not know of the time limitation, or that he had overlooked duly complying with the prescribed requirements of s.44(11)(a) and (b), or that he believed that what he 1 Land Valuation Act 2010, s 3 and sch 1. 2 Ex 1, page 2. 3 (1983) 9 QLCR 13, [20]. -- 4 of 6 -- 5 did amounted to due compliance. The Land Appeal Court must be satisfied that there is a reasonable cause or explanation."4 [14] During final submissions Mr Prasad conceded on behalf of the respondent that at the date of filing of the notice of appeal, Eastern John could be considered to be an owner as defined by the Schedule to the LVA5 and further that s 156 of the LVA would apply in the circumstances6. In light of these concessions, it follows, in my view that Eastern John became the new owner after the objection decision notice had issued to the former owner, and as a consequence became a new owner able to carry on an appeal in its own name7. Conclusion [15] As neither the status of the applicant as “owner” as at the date of filing nor the application of s 156 of the LVA in the circumstances are in dispute, I am prepared to treat the Court’s requisition concerning the eligibility of Eastern John to appeal as having been satisfactorily answered, consequently the only remaining issue to be resolved is whether reasonable excuse has been established as required by s 158 of the LVA. [16] The undisputed evidence relied upon by the applicant would suggest that Ms Nguyen’s efforts to lodge the notice of appeal on behalf of Eastern John were more convoluted than would have been the case had the stamped transfer for the subject property been able to have been registered immediately after settlement of the transaction. The required action in respect the transfer documents appears to have been significantly delayed by an inability to locate the signatory required to address the Titles Office requisition. A practical consequence of this difficulty is that at first glance the applicant was neither a registered owner nor an objector8 at the time the notice of appeal was lodged. A further consequence of this state of affairs was that the Senior Deputy Registrar considered it necessary to issue a requisition in order to address this apparent anomaly. [17] The evidence in respect of the substantial blaze which destroyed a shopping centre and medical practice on 26 August 2017 demonstrates that Ms Nguyen was unexpectedly 4 (1992-93) 14 QLCR 202, [204]. 5 Land Valuation Act 2010, s 3. 6 T 1-11 lines 20 to 45. 7 Land Valuation Act 2010, s 156. 8 Land Valuation Act 2010, s 155. -- 5 of 6 -- 6 required to direct her attention and efforts to assist re-open a temporary medical centre to provide interim patient care and attend to related legal issues e.g. safety, insurance, tenancy/leasing and reinstatement. [18] On the basis of the evidence presented I have concluded that “reasonable excuse” is established as required by s 158(2)(b) of the LVA. The combination of difficulties detailed by Ms Nguyen concerning the registration of the stamped transfer and the consequences of the blaze during the appeal period are matters of a substantial nature9 and concern “the kind of thing(s) which might be expected to delay the ‘taking of action by a reasonable man”10. Accordingly I find that the Court has jurisdiction to hear and determine this appeal. Order The Court has jurisdiction to hear and determine the appeal. GJ SMITH JUDICIAL REGISTRAR 9 AG Russell v The Crown (1992-93) 14 QLCR 202 10 Stevens v. Motor Vehicle Insurance Trust (1978) WAR 232. See also Director-General, Department of Transport v Congress Community Development and Education Unit Limited (1998) 12 QCLR 153, Anthony v Department of Natural Resources [2000] QLC 72. -- 6 of 6 --