Ditchlyn Pty Ltd v Chief Executive, Department of Lands; Robertson v Chief Executive, Department of Lands [1995] QLC 115

LAND COURT BRISBANE 29 September 1995 Re: Appeals against valuations - Valuation of Land Act 1944 - Land Act 1962. AV94-382/5. (1) Ditchlyn Pty Ltd (AV94-382/3) v. Chief Executive, Department of Lands (2) Patrick N and K Robertson (AV94-384) v. Chief Executive, Department of Lands (3) Patrick N Robertson (AV94-385) v. Chief Executive, Department of Lands APPLICATION FOR COSTS This is an application for costs by the respondent Chief Executive, Department of Lands, following withdrawal of four appeals by the abovenamed appellants against decisions of the Chief Executive disallowing objections lodged against valuations applied by the Chief Executive to certain lands in the ownership of the appellants and for the purposes of the Annual Valuation of the City of Brisbane as at 30 June 1993. The matters were set down for hearing and determination by the Land Court at 10.00 a.m. on 18 July 1995. Notice of withdrawal was given the respondent on the afternoon of the day before the date set for hearing. The respondent has applied for costs thrown away in the sum of $2,864.56, which has been calculated on the basis of the work involved by the valuer intended to be called in the hearing as if that valuer were called upon to value the lands de novo at the relevant date. The schedule of costs includes this first item with respect to the valuer - Valuer 13 days @ $150.61 = $1957.93 (Inspection of subject properties and sales, checking analyses of sales, peruse relevant town planning documents, checking BCC records on flood levels, prepare relevant orthophoto maps with overlays, checking relativity of values in immediate locality.) The remaining items cover costs under these headings - cartographer, typist, [1995] QLC 115 -- 1 of 4 -- 2 Blinmaps A4, IVAS sales and property printouts, ATS title search, copies of RP, photographs and photocopying. The appeals were filed in Court by GD Trivett and Associates, valuers, on behalf of the owners. Mr GD Trivett appeared in response to the application. For the Chief Executive, the Court had the benefit of submissions made by Mr R Paterson of Counsel. The application falls to be determined under the provisions of s.41(9) of the Land Act 1962. In the exercise of the discretion the Court is unfettered, save that the discretion must be exercised judicially and for reasons that can be considered justified. Authorities cited by Mr Paterson in support of the application included Bowden v. Valuer-General (1980-81) 7 QLCR 138; Hymix Industries Pty Ltd (1990-91) 13 QLCR 173; Moyses v. Townsville City Council (1979) 6 QLCR 271, and Valuer-General v. Queensland Club (1990-91) 13 QLCR 207. The general principle which applies in these cases following the event is found in Bowden's case where at p.147 the Land Appeal Court said: " 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. " The more relevant authority supporting the application is that of Beedell Farms and Grazing Pty Ltd v. The Valuer-General (1979) 6 QLCR 322, in which the Court made an order for costs in favour of the appellant in respect of a hearing involving a preliminary point of jurisdiction raised by the Valuer-General a few days only before the matter should have gone to trial on its merits. The circumstances of the subject case are in the converse. That costs were thrown away through late notice of withdrawal is not in dispute nor that the respondent is entitled to costs which properly can be said to have been thrown away. The difficulty that arises with the application is that the appellants are asked to pay full costs of a valuer who took over the cases following the resignation of the valuer who was responsible for the valuations which issued. Under s.13 of the Act - "The chief executive must decide the unimproved value of the land to be valued for the Acts under which local authorities are established. " Such valuations are used for rating and taxing purposes and fees payable by local authorities for the service are specified in the regulations to the Act. The Act -- 2 of 4 -- 3 provides that an owner who is dissatisfied with a valuation may object to the valuation and if dissatisfied with the decision on objection the owner may appeal to the Court. In the subject case the owners objected. Mr Trivett said that he attended the objection conference. He said that the hearing of the objection conference took over an hour and that he discussed with the valuer responsible the relevant sale lots which were all of vacant land and in a cluster. On the assumption that the valuer who wrote the valuations which issued took the cases to Court, preparation of material for the purpose should not, in his opinion, have occupied the valuer for more than one day. He concedes that certain other work and gathering of material, maps, etc., would be incurred. In the light of the duties cast upon the Chief Executive under s.13 of the Act it may be assumed that all the research, inspection and enquiry stated above would have been carried out in making the valuations which issued and that possibly more detailed research, etc., may have been effected for the purpose of the objection conference. Neither party has any statutory right to costs of or leading up to those proceedings. Following an appeal it may be assumed that the valuer in preparing his report and valuation for the Court would take from this material so much as is considered reasonable and relevant in defending the appeals and that is all which, in my opinion, the respondent can be expected to recoup when an appellant gives late notice of withdrawal. The fact that the valuer who wrote the original valuations resigned from the Department or for other reasons was unavailable to take the matters to Court is a risk to be borne by the respondent and in some ways, assuming that an appellant was made liable therefor, could in view of the regulations to the Act amount to double accounting. In ascertaining reasonable costs on the approach which I prefer and will follow, Mr Paterson submitted that six (6) days for time occupied by a valuer would be reasonable. Mr Trivett is of the opinion that one (1) day would be sufficient given that all relevant data was accumulated for the purpose of the issue of the valuations. In my opinion, that part of the exercise must be taken as done. I have accordingly concluded that one (1) day for the valuer is sufficient. In other respects, costs on the approach which I adopt will be as follows: Valuer 1 day @ $150.61 $ 150.61 Cartographer $ 153.44 Typist $ 64.89 Blinmaps A4 $ 119.00 Copies of RP $ 60.00 Photographs - film $ 7.90 D. & P. $ 13.90 Photocopying $ 61.50 Total $ 631.24 -- 3 of 4 -- 4 or $ 631.25 In the circumstances, it is ordered in the exercise of the Court's discretionary powers that the appellants pay the respondent's costs in the sum of $631.25. President of the Land Court -- 4 of 4 --