D & S Ring Family Pty Ltd as TTE v Valuer-General [2016] QLC 74

[2] Any order for costs would be made under s 171 of the Land Valuation Act 2010. The Valuer-General argues the following circumstances apply:[1]

"d. a party has incurred costs because the other party did not comply with the court's procedural requirements;

e. ...a party has incurred costs because the other party has introduced, or sought to introduce, new material;

f. a party did not properly discharge the party's responsibilities in the appeal."

[3] The procedures of this court are governed by its rules.[2] To the extent a matter about procedure is not provided for by the rules, it may be dealt with by directions.[3]

[4] The Land Valuation Act confers a right of appeal to this court and prescribes how an appeal is started. [4] The court's rules also state requirements for an originating process, including a notice of appeal.[5] The effect of both is that a notice of appeal against a valuation made under the Land Valuation Act must:

1. state the grounds of appeal;[6] and

2. briefly state the facts, circumstances or other relevant matters on which the proceeding is based."[7]

[5] Neither the Act, nor the court's rules make any further provision for pleadings. Where the rules do not provide for a matter in relation to a proceeding, the Uniform Civil Procedure Rules 1999 (UCPR) apply. The UCPR contains a comprehensive regime for pleadings in civil proceedings.

[6] However, a member of the court also has the power to make directions about a particular case to the extent that a matter about procedure is not provided for by the rules.[8] In this case, Mr Cochrane exercised that power and directed that D & S Ring Family provide a full and proper particularisation of each of the grounds of appeal set out in their notice of appeal and intended to be relied upon at hearing. The Valuer-General was not required to file its statement of facts, matters and contentions in response until that was done. The evident purpose of those directions was to clarify the grounds of appeal.

[7] The Valuer-General's reliance on s 171(d) of the Land Valuation Act rests on the assumption that any change to particulars provided in response to the court's order constitutes non-compliance with the court's procedural requirements.

[8] That does not follow. The UCPR allows amendment of documents before or after a request for trial date has been filed.[9]

[9] Although his Honour's directions are clearly intended to clarify the D & S Ring Family case, they did not expressly preclude an application for leave to deliver amended or further particulars. There is no practice direction of general application to matters of this nature that precluded D & S Ring Family making the application.

[10] I am not, therefore, satisfied D & S Ring Family has not complied with procedural requirements.

Costs incurred because of introduction of new material

[11] The Valuer-General sets out the consequences of the altered particulars at [9] of its submissions. In summary, this involves further disclosure; preparing and delivering an amended statement of facts, matters and contentions; and the cost of various appearances and submissions in relation to this application.

[12] Accepting, for the moment, that the Valuer-General will incur further costs attributable to the new sales particularised, there is fundamental difficulty with his argument. Three of the four sales that D & S Ring Family has added to its particulars are common sales: that is, sales that the Valuer-General's expert agrees are relevant and on which she relies in expressing his opinion. The attribution of these sales as new material offered by D & S Ring Family, therefore, is somewhat misleading. I am not satisfied costs should be awarded on that basis.

[13] I am aware from my case supervision of other such appeals that an unfortunate practice has developed which has led to many similar applications. The valuation exercise is retrospective, not forward looking. The court is required to consider the value of the land at the time of assessment, not at the time the appeal is heard. The sales evidence, therefore, should be clear by the time the parties file their statements of facts, matters and contentions.

[14] By that time, a valuation under appeal will have been examined during an Independently Chaired Conference conducted by the Valuer-General under the Land Valuation Act or a Preliminary Conference conducted by the Judicial Registrar of the court (depending on the amount of the valuation). In both processes, the parties have access to valuation advice. It is not clear why any new sales would come to light at the stage of the valuers' joint meeting. It suggests a lack of preparation by both parties for the ICC or PC and, also, in preparing their statements of facts, matters and contentions.

[15] Having said that, I am aware it has been common to both parties and tolerated by the court in previous appeals.

[16] A restrained approach to the power to award costs is consistent with the requirement the Court:[10]

"must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts."

[17] A change of practice is more appropriately driven by a practice direction applying to all valuation appeals, rather than visiting costs on one party, particularly where there is agreement that all but one of the new sales is relevant and there is no need for a further meeting of the valuers.

[18] I refuse the respondent's application for costs.

The respondent's application for costs is refused.

[1] Land Valuation Act 2010 s 171(2).

[2] Land Court Act 2000 s 21.

[3] Land Court Act 2000 s 22.

[4] Land Valuation Act 2010 ss 155 and 157.

[5] Land Court Rules 2000 rr 5, 7 and 8, Schedule 1.

[6] Land Valuation Act 2010 s 157(3)(a).

[7] Land Court Rules 2000 r 8(c).

[9] Uniform Civil Procedure Rules 1999 rr 375 and 470.

[10] Land Court Act 2000 s 7(b).