Since then, judges seem to have taken a figure of 10% (or, in some cases at least, perhaps 15%) of the true figure to constitute an area, or bracket, within which, prima facie , a valuation is not negligent. But the importance of that "bracket" notion must not be misunderstood. It is not a statement of some principle that no valuation within the bracket can, as a matter of law, be negligent. That such a valuation can still be negligent is not only a matter of common sense, but has been judicially developed in such cases as Interchase Corp Ltd v ACN 010 087 573 Pty Ltd (Supreme Court, Queensland, 520 of 1994, BC 200000188) and Lion Nathan Ltd v Coca-Cola Bottlers Ltd [1996] 1 WLR 1438. Once one finds that a valuation is within the "bracket", one can infer that prima facie , but only prima facie , it is not tainted by negligence; of course, it may have been arrived at by negligence, but that fact must be proved; one can never say that purely because a figure is within the "bracket", no negligence can be involved; but, on the other hand, if one arrives at a conclusion that a particular valuation is correct, one may turn to the "bracket" test as a check.
10 In the present case, his Honour, after finding that the respondent's figures were correct, said that in any event they were within the bracket which would apply if the appellant's figures were correct.
11 Mr Martin SC, learned senior counsel for the appellant, submitted that his Honour erred in holding, in effect, that the respondent's figures were correct solely because they fell within the "bracket" of the appellant's figures. But his Honour did no such thing. He found that on the evidence the respondent's figures were correct, and that the appellant had not shown them to be wrong, and then as a separate (and logically, quite unnecessary) exercise, found that the figures fell within the bracket.
12 On the papers, there were strong prima facie reasons why the respondent should have been accepted. The respondent called three valuers to give evidence on his behalf. They all agreed with his valuation. His Honour was much impressed by both the respondent and those three witnesses. He regarded the four of them as "credible practical men, well experienced in their fields". On any view of the functions of an appellate court, we can hardly gainsay that finding, particularly as the expert witnesses concerned were not challenged as to their valuation figures.
13 The appellant was in no such fortunate position. Of its supporting valuers, one, a Mr Willoughby, was disbelieved, and, from a reading of the transcript, obviously correctly so. Another, Mr Martin, without explanation, did not turn up. And its principal valuer, a Mr Beckett, was found to be of no assistance, although his evidence was "fair". Moreover, Mr Beckett's knowledge of the matters in dispute was obviously defective. His practice was situate in Silverwater, which, we were informed, is not Neutral Bay.
14 One must next turn from general to particular considerations.
15 One set of comparables consisted of the leases of a building, referred to in the evidence as the MOJO building or 339 Military Road, Cremorne. There were, apparently, two leases invoiced. One related to the ground floor of that building. However, that lease contained provision for a "fit-out contribution" of $350,000, which rendered useless any use of the rent in that lease as a comparable. The other was a lease of premises in Level 1 of that building. As to that lease, Mr Dunne, the lessee's agent (who ought to know what he was talking about) told Mr Smith it contained a provision for a 9½ months "rental holiday". An inspection of the lease itself shows no such provision. That means there was evidence going in both directions. His Honour suggested the "rent holiday" might have been the subject of a "side agreement". That does not seem to me an absurd suggestion. It certainly cannot be safely asserted, as Mr Martin SC did, that Mr Dunne's evidence was necessarily false. Mr Smith disregarded all MOJO leases entirely, and Mr Beckett eventually agreed he was entitled to.
16 Another, and more important, set of comparables were certain premises in the Big Bear Centre itself. In each case the lessee was Connell Wagner Pty Ltd. One lease was in respect of premises known as Levels 2 and 5 of the Centre. It was dated 1 March 1996. It was for a term of six years and four months. It contained a ratchet clause of $260 per square metre. The other lease was in respect of certain premises known as suite 2 of level 3. It was a lease for an initial term of six months but was followed by a series of options which had the effect, subject to the due exercise of each option, of providing an aggregate period of occupation by the lessee similar to that engaged by the lessee under the fixed term lease.
17 The valuer, Mr Smith, was of the view that the six-months-plus-options nature of the lease on level 3 made its use as a comparable of little use. He put it aside. What is more, Mr Beckett agreed that he should do so. As far as the premises subject to the first lease are concerned, Mr Smith accorded them little value because of the ratchet clause they contained. In an outburst of judicial exuberance, his Honour even expressed the view that the existence of that clause in the first lease precluded any other rent negotiated between the parties from being an "arm's length" transaction.
18 It was submitted by Mr Martin SC that Mr Smith should personally have inspected each and every set of premises, and was negligent in not doing so. However, in view of the facts that (a) he was fairly familiar with them, and (b) his supporting witnesses had visited them all, this submission becomes difficult to sustain.
19 Another complaint which Mr Martin made about the valuer was that he considered the premises to be valued something of a security risk. We were taken to the evidence of how many entrances and egresses there were, and what security arrangements were in place. However, there was no evidence called by the appellant to rebut the allegation that robberies had taken place in and about the premises.
20 Finally, it was submitted that the valuer, Mr Smith, placed excessive reliance on BOMA classifications. This is an internal trade method of classifying premises as Premium, Grade A or Grade B. There was much evidence - probably too much - about which category the subject premises fell into. There was general agreement that they came within either the Premium category or the Grade A category, but some uncertainty as to which. The surprising feature of the case in this regard, however, was that everyone treated it as irrelevant to the ultimate valuation, which it was.
21 Overall, Mr Martin SC has not established that the respondent valuer made any mistakes - at least, any mistakes of consequence; he certainly has not demonstrated that the respondent's valuations were wrong, and the onus was on him to do so.
22 In my view, the appeal should be dismissed with costs.
23 BUDDIN J: I agree with Meagher JA.