BWP Management Limited v Valuer-General [2017] QLC 56

LAND COURT OF QUEENSLAND CITATION: BWP Management Limited v Valuer-General [2017] QLC 56 PARTIES: BWP Management Limited (appellant) v Valuer-General (respondent) FILE NO/s: LVA037-16 DIVISION: General division PROCEEDING: Application to vacate hearing dates DELIVERED ON: 1 November 2017 [ex tempore] DELIVERED AT: Brisbane HEARD ON: 1 November 2017 HEARD AT: Brisbane MEMBER: PA Smith ORDER/S: 1. The respondent’s application made orally on 1 November 2017 and filed on 3 November 2017 be allowed. 2. The hearing dates of 6 and 7 November 2017 be vacated. 3. The respondent is to pay the appellant’s costs thrown away as a result of the adjournment of the hearing in an amount to be agreed or otherwise fixed by the Court. CATCHWORDS: REAL PROPERTY – VALUATION OF LAND – need for expert to consider additional material – whether application to vacate hearing dates should be allowed COSTS – where respondent conceded that vacation of hearing dates resulted from its actions – respondent to pay costs thrown away by appellant as a result of the vacation of hearing dates -- 1 of 5 -- 2 Birla Mt Gordon Pty Ltd v Miccon Hire Pty Ltd [2013] QCA 363 APPEARANCES: DD Purcell of Counsel (on a direct brief) for the appellant JP Hastie of Counsel (instructed by Crown Law) for the respondent [1] I have before me an oral application brought by the respondent in this matter in which the respondent seeks the adjournment of the hearing due to commence on 6 November 2017. Counsel for the respondent has undertaken to file the appropriate formal written application in the Court by 4 pm tomorrow. I have also heard oral evidence from Ms Pui Yen Kot, a solicitor in the Department of Natural Resources and Mines who gave evidence in support of the respondent’s application. I considered it necessary to have this evidence formally on the record to help overcome the obvious prejudice that the appellant has suffered in having this application brought on at such short notice. [2] The application was only brought to my attention after 2 o’clock today, and I understand that only very brief notice was given to both parties for the matter to be heard at 2.45pm today. This, though, was necessary due to my unavailability tomorrow and Friday and, indeed, the unavailability of counsel for the appellant tomorrow. It was, though, in the interests of all parties that the matter proceed as urgently as possible to avoid the obvious likelihood of additional costs being thrown away if resolution of this application was left outstanding. [3] There are a couple of key factors which I have considered relating to this matter. The first is that an expert retained by the respondent, Mr Davidson, has, according to the evidence of Ms Kot, informed the respondent in the last 24 hours, that having reviewed the respondent’s amended statement of facts, matters and contentions filed 28 April 2017, there are additional sales which Mr Davidson considers he needs to take into account and evaluate in order to properly give his evidence to this Court. The respondent has also indicated through counsel that the respondent’s case will be prejudiced if Mr Davidson is not in a position to obtain that extra evidence. Ms Kot has given evidence that this additional evidence can be made available by Mr Davidson within a period of two weeks. -- 2 of 5 -- 3 [4] It must, of course, be borne in mind that any adjournment will be for a period greater than two weeks because of the need for the respective valuers for each party to also consider Mr Davidson’s further evidence and, as necessary, prepare further reports and/or a joint report in response to that further evidence. I expect that the period of time that is being sought for an adjournment is in the nature of some six weeks. [5] Another key factor is that there have been two important concessions made by Mr Hastie, counsel for the respondent. The first is that he will not argue against any contention that the respondent has, to some extent, as he put it, “dropped the ball” with respect to the preparation for the hearing of this matter. Nevertheless, the respondent says that the proper and just hearing of this case necessitates the adjournment sought by the respondent and that anything that flows from the adjournment as far as prejudice to the appellant can be cured by an award for costs which Mr Hastie has also indicated his client would not oppose. [6] I have considered the comments of the Court of Appeal in the case of Birla Mt Gordon Pty Ltd v Miccon Hire Pty Ltd1 and in particular paragraphs 85, 86, 87 and 91. The case is, perhaps, summarised by paragraph 91 which is in the following terms: In terms of the factors in Aon Risk Services, there can be little doubt about the importance to the appellant of the DSO report. On its case, the impact in dollar terms was very substantial. When seen against it, the costs of any adjournment paled into insignificance. [7] The application by the respondent today is opposed by Mr Purcell for the appellant. Unsurprisingly, Mr Purcell has not been able to go into detailed reasons for the opposition to the application save, of course, the obvious statement that this application comes very late in the proceedings and that, of course, has been properly conceded by Mr Hastie. I commend Mr Purcell and his client for their readiness to appear on such short notice to an oral application and to be prepared to proceed on the basis of oral evidence provided by Ms Kot and in the general manner in which Mr Purcell has conducted himself today when in other circumstances he could have been particularly difficult in this application and the processes that have been undertaken. It is a credit to the profession in the way in which this matter has been handled by all concerned under such short notice, but I particularly wanted to 1 [2013] QCA 363. -- 3 of 5 -- 4 commend Mr Purcell for the difficult position he is in as a recipient of the direct brief with little information before him. [8] The overriding factor for this Court to consider is the justice to the parties, of course, with such justice being delivered within a timely manner. This case already falls, in some respects, outside of the “timely manner” in the time in which it has taken to get ready for hearing however the time that is being sought for an adjournment is, in the scheme of things, not great, and I am satisfied on the evidence of Ms Kot that the respondent’s case may be severely jeopardised should this evidence not be allowed. [9] Accordingly, and in particular, given the fact that the respondent has agreed to the issue of costs should I make an order in favour of its application, I propose to make orders allowing the application and also that the costs thrown away as a result of the application be paid by the respondent to the appellant, such costs to be agreed between the parties or to be in an amount fixed by the Court. [10] My final comment relates to the position of the respondent as a model litigant before the Court. I do not make any comments criticising the respondent but rather praising the respondent for upholding its duties as a model litigant before this Court. Within a very short time of becoming aware of a difficulty in its preparation, the respondent has notified the appellant and the Court and been quite proper in the way this application has been speedily brought and the concessions that have been openly and honestly made by Mr Hastie, and I thank him and the respondent for that. It is very refreshing to see the obligations of the State as a model litigant in the broad sense being upheld by the respondent in this matter. [11] Formal orders will be prepared in accordance with these ex tempore reasons. Orders: 1. The respondent’s application made orally on 1 November 2017 and filed on 3 November 2017 be allowed. 2. The hearing dates of 6 and 7 November 2017 be vacated. 3. The respondent is to pay the appellant’s costs thrown away as a result of the adjournment of the hearing in an amount to be agreed or otherwise fixed by the Court. -- 4 of 5 -- 5 PA SMITH MEMBER OF THE LAND COURT -- 5 of 5 --