D & S Ring Family Pty Ltd as TTE v Valuer-General [2016] QLC 74

LAND COURT OF QUEENSLAND CITATION: D & S Ring Family Pty Ltd as TTE v Valuer-General [2016] QLC 74* PARTIES: D & S Ring Family Pty Ltd at TTE (appellant) v Valuer-General (respondent) FILE NO/s: LVA123-16 DIVISION: General Division PROCEEDING: Application for costs DELIVERED ON: 6 December 2016 DELIVERED AT: Brisbane HEARD ON: Submissions closed 16 November 2016 HEARD AT: Heard on the papers PRESIDENT: FY Kingham ORDER/S: The respondent’s application for costs is refused. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where application for leave to amend particulars not opposed save on the question of costs – where parties bear their own costs in the usual course – whether the appellant did not comply with procedural requirements – whether costs should be awarded because new material was introduced – whether appellant did not properly discharge its responsibilities in the appeal – whether costs should be awarded to the respondent Land Court Act 2000, s 7(b), s 21, s 22 Land Court Rules 2000, r 5, r 7, r 8, Schedule 1, r 8(c) Land Valuation Act 2010, s 171(2), s 155, s 157, s 157(3)(a) Uniform Civil Procedure Rules 1999, r 375, r 470 APPEARANCES: Not applicable * Pursuant to the Land Court Rules 2000, rule 21 (Power to correct mistakes), this is a corrected decision, issued on 10 February 2017, and replaces the original decision issued on 6 December 2016. -- 1 of 5 -- SOLICITORS: N Murphy (as agent – Savills Valuations Pty Ltd) for the appellant B Cramer (Solicitor - Crown Law) for the respondent [1] D & S Ring Family Pty Ltd as TTE appealed against the Valuer-General’s annual valuation of their property at 316 Vulture Street, Woolloongabba, issued on 1 October 2014. That appeal is on course for hearing in 2017. One ground of appeal is that the valuation is not supported by sales evidence. On 4 November 2016, D & S Ring Family sought leave to amend the particulars of sales relied upon in relation to that ground of appeal. The Valuer-General did not oppose leave being granted, but seeks its costs of and incidental to the application to amend the particulars, together with any costs thrown away or additional costs incurred as a result of that amendment. D & S Ring Family submitted the circumstances for an award of costs had not arisen and, in any case, costs should not be ordered. [2] Any order for costs would be made under s 171 of the Land Valuation Act 2010. The Valuer-General argues the following circumstances apply:1 “d. a party has incurred costs because the other party did not comply with the court’s procedural requirements; e. …a party has incurred costs because the other party has introduced, or sought to introduce, new material; f. a party did not properly discharge the party’s responsibilities in the appeal.” Non-compliance with procedural requirements [3] The procedures of this court are governed by its rules.2 To the extent a matter about procedure is not provided for by the rules, it may be dealt with by directions.3 [4] The Land Valuation Act confers a right of appeal to this court and prescribes how an appeal is started. 4 The court’s rules also state requirements for an originating process, including a notice of appeal.5 The effect of both is that a notice of appeal against a valuation made under the Land Valuation Act must: 1. state the grounds of appeal;6 and 1 Land Valuation Act 2010 s 171(2). 2 Land Court Act 2000 s 21. 3 Land Court Act 2000 s 22. 4 Land Valuation Act 2010 ss 155 and 157. 5 Land Court Rules 2000 rr 5, 7 and 8, Schedule 1. 6 Land Valuation Act 2010 s 157(3)(a). 2 -- 2 of 5 -- 2. briefly state the facts, circumstances or other relevant matters on which the proceeding is based.”7 [5] Neither the Act, nor the court’s rules make any further provision for pleadings. Where the rules do not provide for a matter in relation to a proceeding, the Uniform Civil Procedure Rules 1999 (UCPR) apply. The UCPR contains a comprehensive regime for pleadings in civil proceedings. [6] However, a member of the court also has the power to make directions about a particular case to the extent that a matter about procedure is not provided for by the rules.8 In this case, Mr Cochrane exercised that power and directed that D & S Ring Family provide a full and proper particularisation of each of the grounds of appeal set out in their notice of appeal and intended to be relied upon at hearing. The Valuer-General was not required to file its statement of facts, matters and contentions in response until that was done. The evident purpose of those directions was to clarify the grounds of appeal. [7] The Valuer-General’s reliance on s 171(d) of the Land Valuation Act rests on the assumption that any change to particulars provided in response to the court’s order constitutes non-compliance with the court’s procedural requirements. [8] That does not follow. The UCPR allows amendment of documents before or after a request for trial date has been filed.9 [9] Although his Honour’s directions are clearly intended to clarify the D & S Ring Family case, they did not expressly preclude an application for leave to deliver amended or further particulars. There is no practice direction of general application to matters of this nature that precluded D & S Ring Family making the application. [10] I am not, therefore, satisfied D & S Ring Family has not complied with procedural requirements. Costs incurred because of introduction of new material [11] The Valuer-General sets out the consequences of the altered particulars at [9] of its submissions. In summary, this involves further disclosure; preparing and delivering 7 Land Court Rules 2000 r 8(c). 8 Land Court Act 2010 s 22. 9 Uniform Civil Procedure Rules 1999 rr 375 and 470. 3 -- 3 of 5 -- an amended statement of facts, matters and contentions; and the cost of various appearances and submissions in relation to this application. [12] Accepting, for the moment, that the Valuer-General will incur further costs attributable to the new sales particularised, there is fundamental difficulty with his argument. Three of the four sales that D & S Ring Family has added to its particulars are common sales: that is, sales that the Valuer-General’s expert agrees are relevant and on which she relies in expressing his opinion. The attribution of these sales as new material offered by D & S Ring Family, therefore, is somewhat misleading. I am not satisfied costs should be awarded on that basis. Discharge of responsibilities in the appeal [13] I am aware from my case supervision of other such appeals that an unfortunate practice has developed which has led to many similar applications. The valuation exercise is retrospective, not forward looking. The court is required to consider the value of the land at the time of assessment, not at the time the appeal is heard. The sales evidence, therefore, should be clear by the time the parties file their statements of facts, matters and contentions. [14] By that time, a valuation under appeal will have been examined during an Independently Chaired Conference conducted by the Valuer-General under the Land Valuation Act or a Preliminary Conference conducted by the Judicial Registrar of the court (depending on the amount of the valuation). In both processes, the parties have access to valuation advice. It is not clear why any new sales would come to light at the stage of the valuers’ joint meeting. It suggests a lack of preparation by both parties for the ICC or PC and, also, in preparing their statements of facts, matters and contentions. [15] Having said that, I am aware it has been common to both parties and tolerated by the court in previous appeals. [16] A restrained approach to the power to award costs is consistent with the requirement the Court:10 10 Land Court Act 2000 s 7(b). 4 -- 4 of 5 -- “must 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.” [17] A change of practice is more appropriately driven by a practice direction applying to all valuation appeals, rather than visiting costs on one party, particularly where there is agreement that all but one of the new sales is relevant and there is no need for a further meeting of the valuers. [18] I refuse the respondent’s application for costs. ORDER: The respondent’s application for costs is refused. FY KINGHAM PRESIDENT OF THE LAND COURT 5 -- 5 of 5 --