AMP Henderson Global Investors Limited and Others v Valuer General; AMP Henderson Global Investors Limited v Valuer General

AMP Henderson Global Investors Limited and Others v Valuer General; AMP Henderson Global Investors Limited v Valuer General - [2004] NSWLEC 344 - NSWLEC 2004 case summary — Zoe

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1 On 18 February 2004 judgment was delivered in these proceedings: see AMP Henderson Global Investors Limited and Others v Valuer General; AMP Henderson Global Investors Limited v Valuer General [2004] NSWLEC 19. In each case the proceedings were dismissed. Costs had not been argued and accordingly the Court ordered that the unsuccessful applicants pay the costs of the respondent unless an application was made within 21 days to vary such order. Pursuant to the leave granted, the applicants have applied to have such order vacated and seek an order that each party pay its own costs. The respondent submits that the unsuccessful applicants should pay the respondent's costs and therefore opposes the application. 2 On 19 December 2003 the Land and Environment Court Rules (Amendment No 8) 2003 was gazetted: see Government Gazette No 197 of 19.12.2003, p 11546. Pursuant to such amendment rule 4 contained in Pt 16 Div 2 of the Land and Environment Court Rules 1996 ("the Rules") became operative on 2 February 2004. It relevantly provides:- 4 Costs in certain proceedings (1) This rule applies to the following proceedings in classes 1, 2 and 3 of the Court's jurisdiction: … (c) proceedings under s 37 of the Valuation of Land Act 1916 , … (2) No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable. 3 Prior to the introduction of such rule, the Court's Practice Direction Number 10A ("the Practice Direction") provided:- The practice of the Court is that no order for costs is made in valuation appeals, farmland rating appeals (and other rating appeals), and subdivision appeals in class 3 of the Court's jurisdiction, unless the circumstances are exceptional. 4 These proceedings were conducted whilst the Practice Direction was current. However in Maurici v Chief Commissioner of State Revenue; Chief Commissioner of State Revenue v Maurici (2000-2001) 51 NSWLR 673 the Court of Appeal held that the Practice Direction could not apply to an appeal to this Court since it purported to impose a rigid fetter on the judicial discretion to award costs conferred by s 69(2) of the Land and Environment Court Act 1979 ("the Court Act").

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Applicants' submissions 5 The applicants' submissions acknowledge that the Court is bound to apply the provisions incorporated as rule 4 of Pt 16 Div 2 of the Rules. However they submit that the Court should find that it is not fair and reasonable to order them to pay the costs of the respondent. The applicants submit that even prior to the introduction of Practice Direction 10A the Court usually made no order as to costs in valuation appeals. Stein J in Murray Publishers Pty Limited v Valuer-General (1993) 84 LGERA 13 observed that valuation appeals are of an administrative nature and "devoid of complex legal principles": see p 16. His Honour distinguished such appeals from other proceedings heard in class 3 of the Court's jurisdiction such as compensation for compulsory acquisition. His Honour said (at p 18):- In my opinion, the practice of the Court in valuation cases should be that no order for costs be made unless exceptional or special circumstances are shown to exist. 6 The applicants' submissions that no order for costs should be made is predicated upon the usual practice of the Court as contained in Practice Direction 10A which was current when the proceedings were commenced and heard. Additionally they submit that the proceedings involved no question of law and were administrative in nature. 7 It is also submitted by the applicants that the appeal was dismissed because of the Court's finding that the onus of proof imposed by s 40(2) of the Valuation of Land Act 1916 ("the Valuation Act") was not discharged. The applicants raise additional matters, namely that the proceedings were conducted efficiently; that in an administrative appeal it is inevitable that one party's evidence will be rejected and that it would not be fair and reasonable to impose an order for costs upon the unsuccessful party merely because of such finding; that Pt 16 r 4(2) of the Rules cannot mean that costs follow the event and that the insertion of such rule confirms the policy objective that costs do not simply follow the event in administrative appeals brought pursuant to a statutory right such as s 37 of the Valuation Act; the announcement and commencement of Pt 16 r 4 of the Rules occurred after the case had been heard and this fact should be given significant weight when the Court exercises its discretion.

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Respondent's submissions 8 The respondent submits that the proceedings involved two appeals involving statutory land values amounting to $128,000,000 being major landmarks in the Sydney City commercial district. These proceedings were the first to follow the decision of the High Court of Australia in Maurici v Chief Commissioner of State Revenue (2002-2003) 212 CLR 111 and the respondent submits that the decision could have set an important precedent. 9 As to the conduct of the proceedings the respondent submits that after the first two days of an eight day hearing it was "determined that effectively the whole of the expert opinion evidence of the applicants' was inadmissible". The respondent submits that the further evidence adduced by the applicants did not advance their arguments. Further the respondent submits that the issues raised involved questions of law, or of mixed fact and law, namely the proper application of the High Court's Maurici decision; the appropriateness and reliability of the applicants' valuer's analysis of improved sales; whether the High Court of Australia's decision in Kibble v Deputy Federal Commissioner of Land Tax (1920) 27 CLR 316 applied to the analysis of improved sales; whether the concept of Transferable Heritage Floor Space as provided by the Central Sydney Local Environmental Plan 1996 should be applied otherwise than as determined in Perpetual Trustee Co Ltd v Valuer-General (2001) 115 LGERA 287 at p 299; whether the differences between the parties concerning the valuation of the subject properties was "marginal", the respondent contending that there was a substantial difference in each case. Accordingly the respondent submits that the issues involved were significant and that the applicants were unsuccessful in respect of each issue. 10 The respondent relies upon the observations of the High Court of Australia in Maxwell v Murphy (1956-1957) 96 CLR 261 wherein a distinction was drawn between the effect of the operation of a new law creating substantive rights compared to a new law relating to procedural matters: see also Galvin v Forests Commission of Victoria [1939] VLR 284. 11 The respondent has made numerous submissions concerning the interpretation of the phrase "fair and reasonable" based upon various statutes such as the Corporations Act 2001 (Cth) s 256B, the Superannuation (Resolution of Complaints) Act 1993 (Cth), s 36 and s 37 and various authorities.

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Legislation Cited (2)

Cases Cited (6)

Cited By (2)