Boland v Yates Property Corporation Pty Ltd

Boland v Yates Property Corporation Pty Ltd - [1999] HCA 64 - HCA 1998 case summary — Zoe

[4]

What emerges from Mr Webster's submissions is this. It is clear when one looks at the way the matter proceeded before me and what took almost all of the time in the Court of Appeal or at least a great part of the time in the Court of Appeal was whether or not one of the three I think or at least two valuations of Yates' valuers should be adopted. And in those circumstances, as Mr Webster has conceded, the sort of material that he would now be concerned with on the issue of special value would not loom large and perhaps not a lot of attention was paid to it. Nonetheless, that was the way the trial was conducted and it was conducted upon a basis that even if that were wrong, there was still a special value component within the meaning of Kennedy Street. So I am not persuaded that Yates has not had all the opportunity it needs to put all evidence before the court. Nothing in the Court of Appeal decision persuades me that the Court of Appeal is of the opinion I cannot determine this matter without further evidence. On the contrary, the suggestion being made by Mr Justice [Handley] is that nothing that has been stated in this requires me as he said to, I think the words are, reopen the case or have further evidence adduced. It does not necessarily reopen the trial and entitle the parties to lead further evidence. Obviously of course the trial will be reopened because I heard further submissions by the parties as to what I ought to do. But I do not think a case has been made out as to why I should allow further evidence. This litigation will never finish - well perhaps that is wrong, but in all the circumstances I think it is desirable that this matter proceed to a conclusion as expeditiously as possible and I am not persuaded that fairness to the Yates Corporation requires that the case be reopened, because everything that has been put before the court on the previous - on the previous occasion it had the opportunity to put everything before the court that was relevant to determination. That is my decision.

[31]

At the time of preparation for the original proceedings it was, and still is, my view that there was no basis, having regard to the particular facts of the case, upon which it would have been hypothesised in the original proceedings that the hypothetical purchaser in the position of the owner had a headstart in developing the land as compared with the ordinary hypothetical purchaser. That is because it was and still is my view that Spencer's Case required it to be hypothesised that the vendor is either the dispossessed owner or a hypothetical vendor in the position of the dispossessed owner who wishes to sell the land for the highest price obtainable and that, to that end, the dispossessed owner or the hypothetical vendor in the position of the dispossessed owner must be hypothesised to do everything it can to assist the hypothetical purchaser to be in a position to develop the land immediately in accordance with the existing BA and DA (which reflects its highest and best use), and therefore will include in the subject matter of the sale, or otherwise make available to the hypothetical purchase, in connection with the sale, all information and other material which the dispossessed owner or the hypothetical vendor in the position of the dispossessed owner might have, which might be of advantage to the hypothetical purchaser in enabling it to develop the land immediately and otherwise to maximise the value to it of the land, thereby increasing the price it would be prepared to pay for it. This would include all information and other material which might assist the hypothetical purchaser to develop the land in accordance with the building approval immediately, it being borne in mind that Spencer's Case requires it to be hypothesised that the hypothetical purchaser is a purchaser who is purchasing the land for the purpose of exploiting its highest and best use (that is, purchasing it "for the most advantageous [purpose] for which it was [adapted]": per Isaacs J at 441 in Spencer's Case) and who therefore must be hypothesised to be a hypothetical purchaser who is buying the land with a view to its immediate development in accordance with the existing building approval (which was held to be the land's highest and best use). Moreover, as Isaacs J held in Spencer's Case (at 441): We must further suppose both to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially

[111]

What the Master of the Rolls categorically said in Kelly , in my opinion, goes too far. But in any event the passage from Whitehouse v Jordan quoted does not support as far-reaching a proposition as that propounded by Lord Denning. For the legal advisors to make suggestions is a quite different matter from seeking to have an expert witness give an opinion which is influenced by the exigencies of litigation or is not an honest opinion that he or she holds or is prepared to adopt. I do not doubt that counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method of valuation might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions. However it is the valuer who has to give the evidence and who must make the final decision as to the form that his or her valuation will take. It will be the valuer and not the legal advisors who is under oath in the witness box and bound to state his or her opinions honestly and the facts accurately. The lawyers are not a valuer's or indeed any experts' keepers. The Full Federal Court failed to recognise the different roles of the valuers and the appellants in this case and treated the appellants as if they were almost exclusively or exclusively the final arbiters of the way in which the property should be valued. And although the Full Federal Court held that the appellant solicitors were not entitled in this case to shelter behind the barristers and to delegate responsibility to them, it failed to look carefully at the different relationships involved. In a functionally divided profession as in New South Wales, the barristers do not engage the valuers. Nor for that matter do the solicitors necessarily do so. Here the respondent was actively and closely involved in these matters. There were times when the reasons of the Full Court implied, indeed even assumed that the lawyers especially the barristers were personally responsible for the engagement of the valuers and the valuers' opinions. Moreover it is not as if Branson J made any findings that the appellants overbore the valuers and Yates or insisted that the valuers adopt methods of valuation that were impermissible or inferior to some other method. For these reasons also the appeals to this Court would have to succeed.

[150]

It will be recalled that after Cripps J refused to increase the compensation (apart from allowing the agreed additional amount which had been overlooked) the respondent appealed again to the Court of Appeal. Before the hearing the resuming authority settled the appeal by paying $1.25 million to the respondent. The way in which the Full Federal Court dealt with this payment is a further instance of factual error by that Court. Their Honours said that the settlement sum was wholly attributable to special value, as compensation for the advantage to Yates of the work and expenditure incurred in bringing the proposed market to a state in which it was capable of immediate implementation, that is, as compensation for special value under the so-called "head start" principle. That is simply not so. The uncontradicted evidence of Mr Simos QC was that it represented a payment in respect of legal expenses, and interest and stamp duty that would have been incurred in relation to the purchase of an alternative site. It had nothing to do with the so-called "head start". In truth, these items if they represented anything reimbursable at all may have been regarded as aspects of disturbance or perhaps reinstatement costs. They are certainly not matters going to special value. It may also be that the respondent was fortunate to receive a payment of this amount for these items. It may well have been arguable that the claims for them were too remote [298] . They have an appearance of remoteness because every investment, whether following an involuntary transfer or resumption, or a sale in the ordinary course, made by an investor or business person, if such a person decides to embark upon the same sort of investment, will involve the payment of charges and costs associated with it. It is understandable however that the resuming authority might have paid money over and above its strict obligation to do so to this tenacious respondent in the interests of bringing this prolonged and no doubt distracting litigation to finality and in order to save further legal costs.

[220]

There is another respect in which Pastoral Finance may need explanation. The concept of a price that a dispossessed owner would pay over and above the market price (if he or she were the purchaser) rather than lose the land may not be an entirely reliable guide to what the special value to the dispossessed owner is. In theory all that the notional purchaser need pay is a dollar more than the next available purchaser (without a special interest in the matter) would pay. In the highly artificial construct that the law requires in resumption cases, the formulation of the Privy Council in Pastoral Finance may only become workable if the dispossessed owner as notional investor be regarded as having a right to bid or fix a price which included special value. Another way of viewing the formulation of the Privy Council in Pastoral Finance is to regard it as a means of ascertaining the value of the property to the owner [343] . Part of the difficulty arises from a need or desire to ensure that an owner is compensated for the loss of value of the property to the owner, a value which may not always be the same as the value which the unqualified application of Spencer's case, an exchange value or sale in the marketplace, would yield. Sometimes such a need will involve a calculation of what might properly be called special value. The requirement, and I would regard it as a requirement now long accepted by the courts, of the various statutes providing for compensation on resumption, that an owner be paid the value to him or her, may mean that in some cases the direct and exclusive operation of Spencer's case may not be possible. No doubt that case will cover most situations because although it assumes a willing vendor (the dispossessed owner) it does not contemplate one who would lightly relinquish a property which had a particular value to him or her for less than that value. Speaking of the provisions of the Lands Acquisition Act 1906-1936 Cth Dixon J in The Moreton Club v The Commonwealth [344] said: "It must, however, be steadily borne in mind that compensation depends upon the value to the owner dispossessed."

Parties

Applicant/Plaintiff:

Boland

Respondent/Defendant:

Yates Property Corporation Pty Ltd

Cases Cited (74)

High Court of Australia Gleeson CJ Gaudron, Gummow, Kirby, Hayne and Callinan JJ Boland v Yates Property Corporation Pty Ltd (S28/1999S24/1999) [1999] HCA 64

Pastoral Finance Association Ltd v The Minister [1914] AC 1083.

I am of the opinion that conformably with the above-mentioned authorities, the subject land did have a "special value" to Yates. That is, a purchaser in the position of Yates would have regard to the potentiality of the subject site by reason of its size and location for use as a market and for that reason would be prepared to pay something above the land value rather than not obtain it. 1. [1981] 1 NSWLR 547. 2. [1963] NSWR 1252. 3. (1990) 70 LGRA 187 at 200. 4. (1990) 70 LGRA 187 at 201.

(1907) 5 CLR 418 at 431. 2. Minister for Public Works v Thistlethwayte [1954] AC 475. 3. Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547.

Rosenbaum v Minister for Public Works (1964) 82 WN (Part 2) (NSW) 220 at 229 per Walsh J; Altona Estate Pty Ltd v Shire of AltonaThe Valuer (1966) 2063; Nahum v Roads and Traffic Authority, unreported, Land and Environment Court of New South Wales, Bignold J, 2 November 1990. 2. Chapman v The Minister [1966] 2 NSWR 65; Yarn Traders Pty Ltd v Melbourne and Metropolitan Board of Works [1970] VR 427; Fisher v The Minister (1980) 38 LGRA 412; Redwood Court Pty Ltd v Roads Corporation (1992) 76 LGRA 358. 3. [1970] VR 427 at 433. 4. [1981] 1 NSWLR 547. 5. [1981] 1 NSWLR 547 at 557. 6. [1981] 1 NSWLR 547 at 573.

Such as those contained in s 12C of the Darling Harbour Authority Act 1984 NSW incorporating by reference Public Works Act 1912 NSW, s 124. 2. The phrase was first used by Handley JA in Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156 at 188. 3. Giannarelli v Wraith (1988) 165 CLR 543 at 560 (hereafter " Giannarelli "). 4. Yates Property Corp v Boland (1998) 85 FCR 84 at 114. 5. cf Keefe v Marks (1989) 16 NSWLR 713 at 719; Rees v Sinclair [1974] 1 NZLR 180 at 187. 6. Hawkins v Clayton (1988) 164 CLR 539. 7. (1988) 165 CLR 543. 8. Rondel v Worsley [1969] 1 AC 191; Saif Ali v Sydney Mitchell & Co [1980] AC 198. See also as to Scotland: Purves v Landell (1845) 12 Cl & Fin 91 [8 ER 1332]; Batchelor v Pattison and Makersy (1876) 3 R 914 at 918. 9. Rees v Sinclair [1974] 1 NZLR 180; Biggar v McLeod [1978] 2 NZLR 9; Glasgow Harley v McDonald unreported, New Zealand Court of Appeal, 11 August 1999. 10. Mulligan v M'Donagh (1860) 2 LT 136; Robertson v Macdonogh (1880) 6 LR Ir 433. 11. See recommendations for legislative change: Law Reform Commission of Victoria, Access to the Law: Accountability of the Legal Profession, Report No 48, (1992) at 50. 12. Sections 52, 82. 13. Sections 42, 68. 14. The primary judge held that, if it had been necessary for her to decide the point she would have concluded otherwise: Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169 at 212-216. 15. Devries v Australian National Railways Commission (1993) 177 CLR 472; Jones v The Queen (1997) 191 CLR 439 at 466-467; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 330; 160 ALR 588 at 619-620; Lend Lease Developments Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-210.

In re Le Brasseur and Oakley [1896] 2 Ch 487 at 494; Robertson v Macdonogh (1880) 6 LR Ir 433 at 438; cf Rondel v Worsley [1967] 1 QB 443 at 513 per Danckwerts LJ (CA); Rondel v Worsley [1969] 1 AC 191 at 292-293 per Lord Pearson. 2. Rondel v Worsley [1969] 1 AC 191 at 240-244, 258-263, 277-279, 288-289; Giannarelli (1988) 165 CLR 543 at 555. 3. Giannarelli (1988) 165 CLR 543 at 555 per Mason CJ discussing Rondel generally; see also Hawkins v Clayton (1988) 164 CLR 539, Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.

[T]he public interest in the administration of justice does not require that lawyers engaged in court work be immune from action at the suit of their clients for negligence in the conduct of a civil case in court. With respect to the duty of counsel to the court and the risk that, in the absence of immunity, counsel will be tempted to prefer the interests of the client and thereby prolong trials there is no empirical evidence that it is so serious to justify rendering the client remediless. 1. Rondel v Worsley [1969] 1 AC 191. 2. (1979) 95 DLR (3d) 385 followed in Hunter v Roe [1990] 6 WWR 85; Guardian Insurance Co v McCullogh (1988) 87 NBR (2d) 210. 3. Winrob v Street (1959) 19 DLR (2d) 172; Karpenko v Paroian, Courey, Cohen & Houston (1980) 117 DLR (3d) 383 at 397; Garrant v Moskal [1985] 2 WWR 80 at 82 (Affd [1985] 6 WWR 31); Linden, Canadian Tort Law, 6th ed (1997) at 151. 4. For example in World Wide Treasure Adventures Inc v Trivia Games Inc (1987) 16 BCLR (2d) 135; Location Panorama Inc v Gaucher [1991] RJQ 1237. 5. [1985] 2 WWR 80 at 82 citing Demarco v Ungaro (1979) 95 DLR (3d) 385.

See Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565.

(1997) 145 ALR 169

(1998) 85 FCR 84

(1991) 24 NSWLR 156

(1907) 5 CLR 418

(1994) 33 NSWLR 373

(1989) 19 NSWLR 57

(1985) 80 FLR 253

(1956) 95 CLR 245

(1953) 90 CLR 157

(1988) 165 CLR 543

(1989) 16 NSWLR 713

(1998) 73 ALJR 12

(1992) 175 CLR 514

(1999) 73 ALJR 901

(1996) 185 CLR 595

(1988) 164 CLR 539

(1993) 177 CLR 472

(1997) 191 CLR 439

(1999) 73 ALJR 306

(1985) 3 NSWLR 207

(1977) 137 CLR 293

(1988) 164 CLR 465

(1999) 166 ALR 330

(1999) 166 ALR 312

(1990) 21 NSWLR 335

(1987) 145 ALR 169

(1992) 175 CLR 479

(1998) 195 CLR 232

(1995) 36 NSWLR 344

(1968) 122 CLR 556

(1970) 122 CLR 628

(1940) 64 CLR 130

(1989) 165 CLR 543

(1998) 194 CLR 395

(1910) 11 CLR 311

(1975) 133 CLR 120

(1982) 149 CLR 191

(1993) 179 CLR 15

(1992) 24 NSWLR 156

(1947) 74 CLR 358

(1948) 77 CLR 253

(1949) 78 CLR 410

(1952) 87 CLR 159

(1962) 108 CLR 1

(1990) 169 CLR 594

(1979) 140 CLR 675

(1999) 73 ALJR 345

(1965) 112 CLR 295

(1999) 73 ALJR 1414

(1976) 12 ALR 201

(1951) 84 CLR 328

(1979) 142 CLR 351

(1980) 30 ALR 637

(1984) 156 CLR 41

(1999) 73 ALJR 1138

(1994) 179 CLR 520

(1994) 182 CLR 104

(1997) 189 CLR 520

(1996) 187 CLR 1

(1998) 193 CLR 346

(1999) 73 ALJR 839

(1997) 188 CLR 241

(1974) 131 CLR 510

(1983) 152 CLR 657

(1999) 73 ALJR 403

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (241 paragraphs)

Parties

Cases Cited (74)