Caltex Properties Ltd v Chief Executive, Department of Natural Resources [1997] QLC 181

LAND COURT BRISBANE 21 NOVEMBER 1997 Re: Appeal against Annual Valuation - Valuation of Land Act 1944 - Valuation Roll No.: 256 Local Government: Stanthorpe (AV94-268) Caltex Properties Ltd v. Chief Executive, Department of Natural Resources (Hearing at Stanthorpe) D E C I S I O N O N COSTS Background: This matter relates to a property at the corner of High Street and Lock Street, Stanthorpe, and described as Lot 2 on RP 100828. The property is developed as a service station, and has an area of 812 m². The Chief Executive, Department of Lands (now Department of Natural Resources), issued a valuation of the subject at $112,000. The appellant objected that figure and, following the objection, the Chief Executive confirmed the valuation at $112,000 on 30 May 1994. The date of valuation was 30 June 1993, and the date of effect of the valuation was 30 June 1994. Raine & Horne Valuations Pty Ltd on behalf of the appellant then appealed to the Land Court on 27 June 1994 claiming the valuation should more properly be $50,000. The Facts: The grounds of appeal included, among others, that the valuation was excessive, unreasonable, wrong in law, contrary to law, used wrong principles, adopted an inappropriate comparison of sales, failed to allow adequately for the effect of the Town Plan, and also failed to make a proper allowance for the effect of the Contaminated Land Act 1991. The appeal was one of several made on behalf of Caltex Properties Ltd in respect of a series of service station sites across Queensland. At the initiation of the appellant, in an attempt to reduce the caseload for the Land Court, the Chief Executive was approached by the appellant to agree to review all valuations of properties of the appellant which were affected by the Contaminated Land Act 1991. Such a review to consider the handing down of the decision of the Land Appeal Court in a test case between Caltex Oil (Australia) Pty Ltd and Chief Executive, Department of Lands. [1997] QLC 181 -- 1 of 5 -- 2 The appellant subsequently wrote to the Land Court on 27 June 1994, advising of information that the Chief Executive would only renew valuations where there was an existing objection or valuation outstanding. The appellant therefore, in that letter, confirmed the appeal in respect of the subject, and requested that the Land Court not bring the matter forward for hearing until such time as the test case had been resolved to the satisfaction of all parties. The Land Appeal Court handed down its determination on 26 April 1996 in Caltex Oil (Australia) Pty Ltd and Chief Executive, Department of Lands (AV93-561), unreported. Following the decision of the Land Appeal Court, the Registrar of the Land Court wrote to the parties on 3 September 1997 advising that a hearing for determination had been set down for 1.00 p.m. on 28 October 1997 in the Court House at Stanthorpe. The respondent subsequently wrote to Raine & Horne Valuations (Qld) Pty Ltd as agent for Caltex Properties Ltd, on 7 October 1997, advising that the Chief Executive, under s.68(2) of the Act had altered the valuation, subsequent to the Notice of Appeal, from $112,000 to $106,000. However, if that offer was not accepted, then the amount defended at the hearing would be $106,000. There was no response to that letter to the Chief Executive, nor to the Land Court. In respect of such alteration of the valuation after the Notice of Appeal, I note that s.68(2) and 68(3) provide: "68 (2) Moreover the chief executive may after receiving notice of appeal reduce the valuation and may not less than 14 days before the commencement of the sittings of the court at which the appeal is to be heard give notice of such reduction to the appellant who may not less than 7 days before commencement of the sittings give to the chief executive and to the court, as the case requires, notice that the appellant accepts the valuation as reduced and thereupon the appeal shall be determined. (3) If the appellant does not give such notice the valuation as reduced shall be deemed to be the valuation appealed against." At the scheduled time for the hearing there was no appearance by the appellant. Mr D Coe appeared for the respondent, being prepared to call evidence from Mr DB Redgen, the departmental registered valuer responsible for the valuation. The deputy registrar contacted Raine & Horne Valuations (Qld) Pty Ltd to determine if there was any delay causing the appellant's agent to be late. The deputy registrar was advised that Raine & Horne Valuations (Qld) Pty Ltd would urgently advise the intentions of the appellant in respect of the hearing. There being no response by 1.30 p.m. on 28 September 1997, the respondent sought leave to call the matter on for hearing. In the event of no appearance on behalf of the appellant, and -- 2 of 5 -- 3 as there had been no response to the deputy registrar's inquiries in respect of any delays, the matter was struck out for want of prosecution. As a consequence of that decision, the Chief Executive's revised valuation at $106,000 remains. Subsequently, the respondent sought costs as a consequence of the failure by the appellant to either appear, or to advise that they did not intend to pursue the matter. Mr Coe advised that costs sought involved two days' salary only for Mr Redgen who had been required unnecessarily to prepare his case. At the current salary of Mr Redgen this amounts to $338.54. Mr Coe sought no costs in respect of his own appearance. In considering the matter of costs, I am aware that it has long been established in this jurisdiction for each party to bear its own costs under normal circumstances. In this regard, I note for instance in WH Bowden v. The Valuer-General (1980-81) 7 QLCR 138, where the Land Appeal Court found at p.147: "Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed, most desirable in revenue cases, and such access should be available without fear of costs being awarded to either party except in special cases." In seeking guidance in this matter, I look to the Valuation of Land Act 1944, and note that costs are covered in respect of an adjournment (s.62) and also in respect of the final determination of an appeal (s.70): "Costs of appeal against valuation 70(1) Where the value of land as finally determined upon an appeal against the valuation is the value stated by the owner in the owner's notice of appeal against the valuation, or is nearer to that value than to the valuation appealed against, costs shall not be awarded against the owner. (2) Otherwise costs shall not be awarded against the chief executive." In considering whether costs should be awarded, I note that the Act specifies when costs shall not be awarded, but makes no direction as to when costs shall be awarded. That discretion is left entirely to the Court, and was noted in WH Bowden v. The Valuer-General (1980-81) 7 QLCR 138, at p-.144-149, where the Land Appeal Court found at p.145: "It is true, as submitted by the appellant's counsel, that the legislature has not prohibited the Courts from awarded costs but we do not agree that if the legislature intended that no costs should be awarded it would necessarily have so stipulated. It appears to us that the legislature intended to leave all questions of costs in the Court's unfettered discretion subject to the prohibition against granting costs to the party whose valuation is nearer the valuation determined." -- 3 of 5 -- 4 The Land Appeal Court went on to further clarify the matter at p.145: "The power of the Land Court and the Land Appeal Court to grant costs originates respectively in sections 41(9) and 44(16) of the Land Act. The power so granted is discretionary and is in no way circumscribed." In understanding the matter of discretion, I note also the finding of the Land Appeal Court in Townsville City Council v. Moyses and Morris etc (1979) 6 QLCR 271, which said at p.273: "The general rule, then, is that costs are in the discretion of the Court, but of course the discretion must be exercised judicially, that is, by reference to relevant considerations." The Land Appeal Court also considered the matter of whether the Court should lay down rules or principles on how the Court's discretion should be exercised, and followed the guidance outlined in Middleton v. Freier & Ors (1958) QdR 351, where Phillip J, speaking for the Full Court, said at pl.357: "... where an unfettered discretion is given by statute or a rule no court can by its decision impose conditions upon the free exercise of that discretion by another court ...". In respect of costs, matters which the Court need to consider include whether the appeal has been undertaken in an arbitrary, frivolous, or vexatious manner (Hymix Industries Pty Ltd v. The Valuer-General (V89-415) (LAC) (1990-91) 13 QLCR 173, at p.186), or in a manner which could be considered as arbitrary or capricious (WH Bowden v. The Valuer-General supra) which said at p.149: "We are satisfied that the Valuer-General did not arbitrarily or capriciously adopt the interpretation of section 11(1)(vii) upon which he based his valuation. There seems to have been an enquiry and a supply of information from the appellant." In the current matter, I note that the appeal has been held over by agreement of the parties since 1994. I note also that it is but one of a group of similar appeals affecting a number of properties being managed by Raine & Horne Valuations (Qld) Pty Ltd on behalf of the appellants. I note also that over a period of several months during 1997 nearly all of those appeals involving the matter of contamination of service station sites have been settled between the parties, either by consent, or by withdrawal of the appeals. It could therefore be concluded that this appeal may have gone unnoticed among the many others of a similar nature. -- 4 of 5 -- 5 However, while such an occurrence might seem a reasonable conclusion by the appellant, it affords the respondent little comfort, who was required to prepare his submission in anticipation of a hearing. It is also surprising for such a thing to occur in view of the experience in these matters by the appellants and their agents, and also in view of the wording of the notice of hearing from the Land Court to the parties of 3 September 1997 which stated: "If you do not wish to proceed with the matter, the Court requires written advice of any withdrawal. In exercising my discretion in this matter, I have sought guidance in previous similar cases, and note that costs have been awarded where special circumstances have occurred. For example, costs were awarded in the matter of EFS (Holdings) Pty Ltd v. The Valuer-General (1980-81) 7 QLCR 14. In that case the appellant failed to appear and the matter was struck out for want of prosecution. The learned Member found at p.15 "In this matter, the appellant company has not seen fit to advise the Court nor the Valuer-General of any intention not to proceed. There has been adequate time for this action to have been taken between the date of the notice of hearing and the date set down for such hearing. The Valuer-General has been put to expenditure in the matter and I propose to exercise my discretion and make an order for costs as sought." The events of that case and the current matter are similar, in that the appellant has failed to consider the costs incurred by the respondent in preparing for the hearing. Decision In considering the circumstances of the current matter, I can see no extenuating circumstances where the appellant has sought to advise the respondent that he no longer proposes to continue with the appeal. The approach taken by the appellant demonstrated that he had little concern for the impact upon the respondent, who has had to prepare to support his valuation. In the end I find that the Chief Executive has been put to incurring unnecessary costs associated with his defending his valuation. It is ordered that the appellant pay to the respondent the sum of Three Hundred and Thirty-eight Dollars and Fifty-four Cents ($338.54) costs in the matter. NG DIVETT MEMBER OF THE LAND COURT -- 5 of 5 --