Victorian Civil and Administrative Tribunal|2002-01-31|Before: Mr P

Buller Ski Lifts Limited & Anor v Commissioner of State Revenue [2002] VCAT 259 (31 January 2002)

The application by the Applicants for costs is dismissed.

Respondent: Mr D J Williams of Counsel, instructed by Solicitor to the Commissioner of State Revenue

1. As set out in Order 5 of the Orders made by the Tribunal in these proceedings on 13 September 2001 (reproduced at paragraph 5 of these Reasons), the stated purpose of the hearing on 24 October 2001 was for the hearing of argument about the Applicants' costs of these proceedings.

2. These 3 proceedings were referrals to the Tribunal under section 25 of the Land Tax Act 1958 of decisions made by the Commissioner of State Revenue (the Commissioner).

3. Buller Ski Lifts Limited and Gro-Set Pty Ltd (the Applicants) had objected to land tax assessments in relation to site 301-337, Mt Buller (the subject land). They requested that the Commissioner refer the decisions to the Tribunal because they were dissatisfied with his decisions on the objections.

4. Proceeding 2001/12417 related to the assessment year 1997. Proceeding 2001/12425 related to the assessment year 1999. Proceeding 2001/12433 related to the assessment year 2000. Proceeding 2001/12417 and proceeding 2001/12425 were based on the 1991 site valuation. Proceeding 2001/12433 was based on the 1999 site valuation.

5. On 13 September 2001 the Tribunal made the following Orders in the proceedings -

the Tribunal orders pursuant to section 25 of the Valuation of Land Act 1960 (Vic) that:-

1. The site value of "Site 301-337" (Land Id Reference 024037754) in land tax assessments:

2. The site value of "Site 301-337" (Land Id Reference 024037754) in land tax assessment S 021191581 issued 2 May 2000 be reduced from $9,600,000 to $1,750,000.

3. The Respondent on or before 10 October 2001 must pay to the Applicants the refund(s) to which each of the Applicants is entitled under statute.

4. The Respondent on or before 10 October 2001 must pay to the Applicants the interest to which each of the Applicants is entitled under the Taxation (Interest on Overpayments) Act 1986 (Vic).

5. These proceedings be adjourned to 10.00am 15 October 2001 for the hearing of an argument about the Applicants' costs of these proceedings, with the parties to exchange written submissions on or before 8 October 2001."

6. The hearing referred to in Order 5 thereof ("the Costs Hearing") was adjourned to 24 October 2001.

7. There were 2 key issues for determination by the Tribunal.

8. The first issue was whether the Tribunal had jurisdiction to make an order for costs. The Applicants submitted that the Tribunal had such jurisdiction. The Commissioner contended that the Tribunal had no such jurisdiction.

9. The second issue, predicated on a determination by the Tribunal that it had jurisdiction to make an order for costs, was whether an order for costs ought be made in favour of the Applicants in these proceedings. The Applicants contended that they should be awarded their costs, and the Commissioner contended that there ought be no order for costs in favour of the Applicants.

10. Clearly, if what we have described as the first issue was determined in favour of the Commissioner, then there would be no need for further inquiry.

11. This issue turned essentially on the interplay between provisions of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), the Land Tax Act 1958 (the LT Act), and the Valuation of Land Act 1960 (the VL Act).

12. The primary submission of Mr Crutchfield, who appeared for the Applicants, was to the effect that these were proceedings under the VL Act. Mr Williams, who appeared for the Commissioner, contended that it was under the LT Act that these matters were referred to the Tribunal. We accept the submission of Mr Williams. In our view, the fact that section 27 of the LT Act provides that "...in a review under (the LT Act) in relation to the value of land, the Tribunal has the same powers with respect to that matter as it has in a review under Part III of the (VL) Act 1960 and the provisions of that Part, with any necessary modifications, apply accordingly", does not result in these proceedings being properly categorised as proceedings under the VL Act.

13. Mr Williams further submitted, again correctly in our view, that, by reason of section 27 of the LT Act, in proceedings of this type the Tribunal was invested with additional powers it would otherwise have had in certain proceedings under the VL Act, such powers being incorporated by reference.

14. Whilst we accept the general submissions by Mr Williams as described in the previous 2 paragraphs, that is no answer to the first issue, which turns on the detail of what is incorporated from the VL Act in a proceeding of this type under the LT Act. As earlier stated, this involves a consideration of the interplay between provisions of the VCAT Act, the LT Act and the VL Act.

15. Mr Crutchfield submitted that even if we did not accept his primary submission as detailed above, and these proceedings were considered to be proceedings under the LT Act (as we have determined) when one had regard to section 27(1) and (2) of the LT Act, the Tribunal had all the powers which it would have had if the proceedings were under the VL Act because those powers were incorporated by reference. Thus, section 25 of the VL Act was the section governing the consideration of costs. He contended that the general principles of statutory interpretation, coupled with section 159 of the VCAT Act, which provides that if a provision of the VCAT Act was inconsistent with a provision of an enabling enactment, the enabling enactment prevailed to the extent of the inconsistency, meant that the Tribunal had power to award costs. He submitted that the VCAT Act was later in time to both the VL Act and the LT Act.

16. It is necessary to consider whether the effect of section 27 of the LT Act is to incorporate all of section 25 of the VL Act in proceedings of this sort.

17. Mr Williams referred to the expression "with any necessary modifications" in section 27(1) of the LT Act. He submitted that one necessary modification in order to avoid what would otherwise be an inconsistency between the legislative provisions was that one would regard the costs provision contained in section 25(2) of the VL Act as needing to conform with, or be subservient to, the VCAT Act, and in particular Clause 91 of Schedule 1 to the VCAT Act. He submitted that this was a way in which the LT Act, the VL Act and the VCAT Act can be read together "harmoniously". He contended that there was a need to obtain, if possible, an interpretation which was harmonious, and referred us to Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1.

18. We do not accept Mr Williams' primary submission that the relevant provisions can be read harmoniously in the way contended by him. We do not consider the expression "with any necessary modifications" in section 27 of the LT Act was intended to have the effect for which he contends. In our view it would be reading too much into such general words to conclude that they were intended to exclude the provisions of section 25(2) of the VL Act in proceedings such as these. In our view, had such a significant result been intended, the legislation would have so provided in a more specific way.

19. Mr Crutchfield observed that both the LT Act and the VL Act were enabling enactments under the VCAT Act. He submitted, correctly in our view, that section 109 of the VCAT Act, which deals with the power to award costs, applied subject to Schedule 1 to the VCAT Act. In this context, he also referred to Clause 91 of Schedule 1, and also to the definition of "taxing Act" in Clause 2 of the Schedule, which includes the LT Act but not the VL Act. Mr Crutchfield next took us to Clause 99 of Schedule 1, and then to section 159 of the VCAT Act.

20. Mr Williams submitted that Clause 91 of Schedule 1 to the VCAT Act did not confer a power or a discretion in the Tribunal, but that it was prescriptive. He contended there was no room for ambiguity about its contents.

21. In our view any interpretation of the LT Act which would result in the Tribunal having a discretion as to costs in a proceeding of this type must necessarily amount to an inconsistency with Clause 91 of Schedule 1. We have previously stated that we do not accept Mr Williams' primary contention that a reconciliation of the provisions was possible.

22. Mr Crutchfield submitted that the "nail in the coffin" for his submission that section 25 of the VL Act was the section governing the consideration of costs in these proceedings was the form of the Tribunal's Orders of 13 September 2001. He referred to the opening words of those Orders namely, "By Consent of the parties the Tribunal orders pursuant to section 25 of the Valuation of Land Act". He contended that by virtue of the Orders that were made, the Tribunal had power under section 25(2) of the VL Act to award costs in circumstances where the Tribunal had by consent exercised its powers under section 25(1) of the VL Act.

23. Mr Williams submitted that section 25(1) of the VL Act empowered the Tribunal to, in the words of the section "confirm, increase or reduce or otherwise amend any valuation". He submitted that power was unquestionably incorporated into any proceeding of the type of this proceeding. Further, that was why the parties consented to an order as a result of the mediation process. He submitted that section 27(1) of the LT Act by incorporating the provisions of Part 3 of the VL Act was "using a shorthand way of saying" that in a land tax dispute that raised valuation issues, the Tribunal may confirm, increase or reduce or otherwise vary the valuation. He contended that Parliament was concerned to confer upon the Tribunal jurisdiction to deal with the substantive dispute. He further contended that Parliament had recognised that incorporating the whole of Part 3 "holus bolus" may not be appropriate, and that was why the words "with any necessary modifications" appeared in section 27(1) of the LT Act.

24. We have previously referred to our non-acceptance of Mr Williams' submissions that the expression "with any necessary modifications" in section 27(1) of the LT Act meant that the costs provision of section 25(2) of the VL Act was not applicable in proceedings of this sort. Equally, we do not accept the submission of Mr Crutchfield as to the consequence of the form of the Tribunal's Orders of 13 September 2001. In our view, any power to award costs in these proceedings flows from the interplay between the various legislative provisions, not the form of the Orders of 13 September 2001.

25. Mr Williams further submitted that if his submissions to the effect that the provisions could be read together were not accepted, and one was faced with a position where the Tribunal regarded the provisions as being necessarily inconsistent with each other, the question remained as to which provision ought prevail. In this context he submitted that the principle referred to by Mr Crutchfield that the more specific provision prevailed over the more general provision did not assist Mr Crutchfield's case and, if anything, militated the other way.

26. In this context, Mr Williams contended that both section 25(2) of the VL Act and Clause 91 of Schedule 1 to the VCAT Act deal with the question of costs of the proceedings. In that sense, he submitted, neither was more specific or general than the other. Further that in the case of there being effectively a "tie as to specificity" then the later provision, namely the VCAT Act, prevailed. He submitted that, if anything, it was the VCAT Act which was the more specific. He submitted this was so because when it was applied to the facts of this case, the VCAT Act was dealing with a very limited number of cases which raise valuation issues under a taxing Act whereas section 25(2) of the VL Act was directed to any proceeding which raised a valuation of land issue.

27. Mr Williams contended that whilst both the VL Act and the LT Act were enabling enactments as defined in section 3 of the VCAT Act, the enabling enactment of relevance for present purposes was the LT Act. He submitted, that in looking at a particular case, one must look at the enabling enactment for that particular case. In other words, the enactment for which jurisdiction was conferred for the proceeding in question. He contended that otherwise there would be potentially absurd results. Further, that when one read section 159 in a commonsense way it must be referring to the enabling enactment under which the particular proceeding was brought. He submitted that the VL Act was not the enabling enactment under which this proceeding was brought for the reasons outlined. Accordingly, he submitted that it would be an error to go to section 159 of the VCAT Act and use that as support for the proposition that section 25(2) of the VL Act prevailed over Clause 91 of Schedule 1 in the present case.

28. Whilst as we have previously stated we consider that these proceedings are proceedings under the LT Act, we consider that further to the provisions of section 27 of the LT Act, there is a clear and direct nexus with the VL Act. The provisions of section 25 of the VL Act are incorporated by reference. It follows, in our view, that we are entitled to have regard to section 25(2) of the VL Act in the context of these proceedings and in the context of section 159 of the VCAT Act.

29. On this basis, in our view, the provisions of Clause 91 of Schedule 1 of the VCAT Act and section 25(2) of the VL Act are inconsistent. We accept the submission of Mr Crutchfield that general principles of statutory interpretation, coupled with section 159 of the VCAT Act, mean that the Tribunal has a power to award costs in these proceedings.

30. In our view, section 25(2) of the VL Act is applicable in these proceedings.

31. Reference was made during the hearing to the recent Tribunal decision in Julians Lodge Pty Ltd v Commissioner of State Revenue ( VCAT, unreported, Kellam J, Baker-Smith DP and Bourke M, 8 October 2001, Nos. 2000/78783 and 2000/80119). The Tribunal had cause in that case to consider the question of costs in a proceeding before it upon the referral of decisions of the Commissioner disallowing objections to land tax assessments.

32. In considering the question of costs in those proceeding, the Tribunal stated -

" 33. Section 25(2) of the Valuation Act provides in part that the Tribunal may in its discretion award the costs of any proceedings under Division 4 of Part 3 of the Valuation Act to the party in whose favour the proceedings are determined. The provisions of Division 3 of the Valuation Act are incorporated by virtue of section 27 of the Land Tax Act. In part that section provides that if any matter is raised in a review under the Land Tax Act in relation to the value of land, the Tribunal has the same powers with respect to that matter as it has in a review under Part 3 of the Valuation Act, and the provisions of that Part apply accordingly.

34. There is a clear discretion in the Tribunal in these proceedings on the question of costs.

35. Mr Delany submitted that if the Applicant was not successful, costs should follow the event and be ordered in favour of the Commissioner. Mr Newton-Brown submitted that, irrespective of the outcome, each party should bear their own costs.

36. These proceedings involved the interpretation of complicated legislative provisions. They also involved an analysis of the methodology used by the Valuer-General in determining site values of the subject land on the basis of that land being held by the Applicant as an estate in fee simple, when in fact the subject land was Crown land, with the Applicant holding a leasehold interest. It is clear that the method of valuation was complex and depended to a considerable degree upon the experience of the valuer concerned, Mr Burkitt. In such circumstances and taking into account the apparent anomaly between the two valuations the subject of these reviews it is not surprising that the Applicant had concerns about the level of land tax imposed upon it. In such circumstances and taking into account the novel and unusual issues raised by these applications, we consider a proper exercise of our discretion is to make no order as to costs."

33. It is apparent from the above passage that the Tribunal concluded in that case that it had a discretion on the question of costs.

34. Mr Williams submitted that we ought not follow the Tribunal decision in Julians Lodge. He observed that it did not appear from the report of the decision that any reference was made to the operation of Clause 91 of Schedule 1 in that proceeding. Further, that in the brief way the Tribunal dealt with that matter, it appeared the issue of jurisdiction in the Tribunal to order costs was not argued in any detail. He submitted that the present case gave an opportunity for the first time to give detailed consideration to the interplay between the various provisions.

35. Further to our earlier conclusions, we do not accept Mr Williams' submission that we ought not follow the Tribunal's conclusions as set out in paragraphs 33 and 34 of the decision in Julians Lodge.

36. We now turn to the separate question of whether it may be said that the Applicants were, in the words of section 25 of the VL Act, persons "in whose favour the proceedings (were) determined"

37. Mr Crutchfield submitted that, as a consequence of the Orders of 13 September 2001, the Applicants were parties in whose favour the proceedings had been determined. He contended this was so because the material disclosed that the Applicants' objections were originally rejected in full by the Commissioner. He submitted that was a matter also relevant to the exercise of the Tribunal's discretion in relation to costs.

38. Mr Williams submitted that even if the Orders of 13 September 2001 were a determination of the Tribunal, it was one that fell between the positions of the parties.

39. We are satisfied that these are proceedings in which the Applicants may properly be described for the purposes of section 25(2) of the VL Act as being "the party in whose favour the proceedings are determined". The fact that the decision of the Tribunal was an order by consent is not in our view determinative. The Orders of the Tribunal include orders which substantially reduce the relevant site values of the subject land in the land tax assessments the subject of these proceedings. We consider that the determination as reproduced at paragraph 5 of these reasons must be properly construed as being a determination of the proceedings in favour of the Applicants.

40. Having determined that the Tribunal had jurisdiction to make an order for costs, we now turn to the issue of whether an order for costs ought be made in favour of the Applicants.

41. Mr Crutchfield's primary submission was to the effect that in circumstances such as this, where there were orders made by the Tribunal substantially reducing the site value of the subject land, and therefore substantially reducing the tax to be paid, the Tribunal ought regard the Applicants as having been successful and costs should follow. In this context he submitted that the evidence as to who had what information, including that led from Mr Jackson and Mr Ralton (whose evidence we shall come to later), was irrelevant to the determination of these proceedings on the question of costs. It was Mr Crutchfield's submission that it was necessary for the Commissioner to displace a presumption that in the exercise of the Tribunal's discretion costs ought follow the event. He put, by way of example, matters which might displace that presumption as being a letter of offer from the Commissioner to reduce the site values to an amount less than, or approximating the mediated levels, or some evidence that the proceedings were frivolous.

42. In considering these submissions, it must be borne in mind that these are review proceedings. The steps which led to these proceedings were, first, the issue of land tax assessment notices, the subsequent lodging of objections against the assessments, the disallowance of the objections, and the referral of the decisions on the objections to the Tribunal. During the hearing we raised the following scenario. A person lodges an objection against an assessment of land tax but provides no particulars in support of that objection. The objection is disallowed. The objector seeks referral of the decision to the Tribunal. The objector in the Tribunal proceedings introduces a vast range of material which results in a determination in favour of the objector. In our view such conduct of an objector would be a relevant consideration as to whether an order for costs ought be made in favour of that objector. There are, of course, clearly other factors that may require consideration in such a case. For example, it may be relevant to consider whether the material introduced by the objector was otherwise generally available.

43. Mr Crutchfield put that there were 2 fundamental issues between the parties. The first was what was the price paid by the "Grollo Group" when it purchased its interest in Buller Ski Lifts Limited. Did the price represent the real value of that interest? In this context, it was noted that the group paid substantially more for the first 80% interest acquired than it paid proportionately for the remaining 20%. The second fundamental issue in dispute concerned the Applicants' asserted entitlement to claim a deduction for site works on the subject land, and the value of those site works.

44. It is apparent that the assessment of the valuations the subject of these proceedings involved a consideration of complex matters. In our view, it was necessary for us to consider the evidence that was led from the witnesses who gave evidence before us, and also the material that was before us.

45. In this context, Mr Crutchfield submitted that the Applicants' position was that when one looked at the exhibits to Mr Ralton's affidavit and to the material that was provided to the Commissioner prior to the commencement of these proceedings in relation to the cost of the site works and the Applicant's entitlement to claim the site works, and also in relation to what may be described as the "80/20 issue", the Commissioner had not been caught by surprise. He contended that this was not a situation where the Applicants had "sat on their hands" in the initial stage, and only later turned their minds to the matter.

46. He contended that the material in relation to the site works had been given in the form of a summary by letter dated 6 October 2000. He observed that the Applicants did not have all the underlying source material, and that was reasonable in all the circumstances. He submitted that the information provided to the Commissioner estimated the cost of the works. He stated that, whilst further work was done once the proceedings had commenced to try and put that material into admissible form by obtaining actual source documents or witness statements, the site works estimates did not alter. He contended that the Applicants had put a lot of time and trouble into the process, but the Commissioner had denied the objections in full.

47. Mr Crutchfield further submitted that if what the Commissioner was contending was that it was necessary before commencing proceedings to put in admissible form all the evidence that underpins the assertions that an objector made to the Commissioner, that would be a draconian outcome.

48. Mr Williams submitted that, as this was a review jurisdiction, it was not a question of the Tribunal saying it would limit itself to the material that was before the decision-maker. He contended that if that were so, the proposition that costs ought generally follow the event would be more readily accepted. Further, where one had what amounted to a hearing de novo, in which the parties were free to put forward information and evidence and material that was not before the original decision-maker, then the proposition that costs ought generally follow the event did not flow. Mr Williams submitted, correctly in our view, that it was a question about whether in the exercise of the Tribunal's discretion, having regard to the conduct of the parties both before and during the proceedings, an order for costs ought be made.

49. In this context, Mr Williams submitted that in determining whether any order for costs ought be made the Tribunal ought have regard to the additional information provided by the Applicants and whether it could reasonably have been provided to the Commissioner prior to the institution of the proceedings.

50. Mr Williams referred to the evidence of Mr Ralton which, he submitted, was supported by the "uncontrovertible facts" that at the time of the objection that Mr Ralton did not believe the valuation ought be reduced to the level which it was ultimately reduced to, and at the time of the mediation, he did. The difference was, Mr Williams submitted, the additional information that was made available to Mr Ralton. He submitted that in relation to the two main issues there had been, in essence, a withholding of relevant substantiation until after the objection process was complete.

51. Mr Crutchfield contended that, further to the evidence of Mr Ralton, there was sufficient material for the Commissioner to reduce the site value in the manner which he subsequently did, or at least "in that ballpark", purely based on the Applicants showing to the Commissioner's satisfaction the price paid for the 20% interest.

52. Whilst we have given consideration to the evidence of Mr Jackson and Mr Ralton, and the content of the affidavits and other material filed in these proceedings, we do not intend to recite that material in any detailed way. We do wish, however, to refer to certain aspects.

53. Mr Jackson is a valuer who was retained by the Applicants in relation to the valuations of the subject land. His evidence, and the documentary material before us, including his affidavit of 23 October 2001, outlined the nature of his involvement in the process, and the discussions he had with Mr Ralton.

54. Mr Ralton, the assistant Valuer-General, also a qualified valuer, had the care and conduct of these matters on behalf of the Valuer-General and was the other witness in the hearing before us. The Valuer-General was engaged in these matters by the Commissioner. Mr Ralton's evidence, and the documentary material before us, including his affidavit of 9 October 2001, outlined the nature of his involvement in the process, and the discussions he had with Mr Jackson.

55. We conclude from the evidence of Mr Ralton and Mr Jackson that there was some misunderstanding between them as to the breadth of their discussions about the subject land. Mr Jackson assumed that discussions he had with Mr Ralton related to all the objections, not just the 1997 objection. Mr Ralton's evidence was that he believed the discussions with Mr Jackson were regarding the 1991 site valuation which, as previously stated, was relevant to the 1997 and 1999 objections, but not the 2000 objection. Furthermore, there were some aspects about their meetings upon which they did not agree in their evidence.

56. Mr Ralton in his evidence stated that the contents of his affidavit of 9 October 2001 was true and correct. Paragraph 21 of that affidavit states -

"In the course of the mediation process, as a result of having the opportunity to consider the material referred to in paragraph 17 above and to obtain clarification on aspects of that material from BSL's representatives, Mr Burkitt and I recommended to the Commissioner that the 1991 Level Site Value and the 1999 Level Site Value be adjusted to $2,000,000 and $1,750,000 respectively. If that material, and the opportunity to clarify aspects of it with BSL's representatives had been made available to Mr Burkitt and myself at the time we considered the valuations objections, had we received the same clarifications, we would have made similar recommendations to the Commissioner at that time."

57. Mr Jackson in his evidence stated that the contents of his affidavit of 23 October 2001 was true and correct. Paragraph 13 of that affidavit states -

"At no time did Mr Ralton advise me that, if the applicants could provide the information included in the material referred to in paragraph 17 of Ralton's Affidavit, he would make recommendations that the 1991 Land Site Value be reduced from $5,440,000 to $2,000,000 and the 1999 Land Site Value be reduced from $9,600,00 to $1,750,000."

58. The Tribunal must determine this costs application in circumstances where it has not conducted a hearing in relation to the substantive proceedings, those proceedings having been settled. Further to the parties' request, the Tribunal thereafter made orders by consent giving effect to the settlement. In our view such an outcome introduces additional difficulties for the Tribunal when considering an application for costs.

59. The additional difficulties arise because the Tribunal has not had the opportunity to hear all the evidence and make its own determination on the matters in dispute. We were referred to the decision in Buller Ski Lifts Ltd v Commissioner of State Revenue (Supreme Court of Victoria, unreported, Habersberger J, 30 August 2001, No. 6486 of 2000), a proceeding wherein the plaintiff had sought an order in the nature of mandamus against the Commissioner in relation to certain of the matters the subject of these proceedings before the Tribunal. We find the following paragraph from the judgment of Habersberger J concerning the question of costs in circumstances where there has been no hearing on the merits to be of assistance -

"4. Both parties agreed that in relation to a proceeding which has not received a hearing on the merits, the normal rule is that stated by McHugh, J. in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia: Ex parte Lai Qin (1997)186 C L R 622 at 624 -

"In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.... If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.""

60. We have previously expressed the view that these were complex matters. This is in part evidenced by the fact that Mr Jackson in his evidence acknowledged that he had contended that the proper valuation of the subject land both at the 1991 and the 1999 level was zero. The original assessments by the Commissioner were $5.44m and $9.6m respectively. Ultimately the parties agreed on the level of $2m and $1.75m respectively. The complexity of the matters is further evidenced in our view by the evidence of Mr Ralton as recorded in paragraph 21 of his affidavit of 9 October 2001 (reproduced at paragraph 56 of these Reasons) to the effect that if certain additional material, and the opportunity to clarify aspects of it with Buller Ski Lifts Limited representatives, had been made available at the time of considering the valuation objections, and the same clarifications received, recommendations similar to those made at the mediation process would have been made. We accept that evidence.

61. In considering the conduct of the parties, we have also had regard to the outline of the history of these matters as detailed in the judgment of Habersberger J in Buller Ski Lifts Ltd v Commissioner of State Revenue. In his submissions before us Mr Williams contended that perhaps if rather than pressing for a decision, the Applicants had put forward certain additional material and invited consideration of it as part of the objection process, there would not have been the Supreme Court proceeding or these proceedings. He contended that the Applicants "cannot have it both ways". In this context we note the following observations of Habersberger J at paragraph 25 of his judgment -

"...I consider that an objector is at some stage entitled to require a decision to be made. If the information it has provided is insufficient to persuade the Valuer-General that the original valuation was too high, then the objection will be disallowed. That is the risk the objector takes and ABL had clearly indicated that this was their position."

62. We have earlier in these reasons recorded our determination to the effect that the Tribunal has jurisdiction to make an order for costs in these proceedings. We further determine that no such order for costs ought be made in favour of the Applicants. In relation to the latter determination, having regard to the conduct of the parties both before and during the proceedings, we are simply not satisfied that the Commissioner ought be required to pay the Applicants' costs.

Taxation (Interest on Overpayments) Act 1986(Vic)

Civil and Administrative Tribunal Act 1998

Buller Ski Lifts Limited & Anor v Commissioner of State Revenue [2002] VCAT 259

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Buller Ski Lifts Limited & Anor v Commissioner of State Revenue [2002] VCAT 259 (31 January 2002)

Parties

Legislation Cited (5)

Cases Cited (1)