Joseph v Valuer General

CASES CITED: Jassls Pty Limited v Valuer General [2006] NSWLEC 59

APPLICANT Self represented LEGAL REPRESENTATIVES: RESPONDENT Mr J Mitchell, barrister SOLICITOR Crown Solicitor's Office

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

1 HIS HONOUR: Daniel Joseph appeals to this Court pursuant to s 37 of the Valuation of Land Act 1916 No 2 from the determination by the Valuer General of the land value of land known as 137 Green Point Road, Oyster Bay, as at 1 July 2005. It was a determination made by the Valuer General on 10 July 2006. That determination was one which followed an objection lodged with the Valuer General by Mr Joseph against the assessment of land value for the subject land at the relevant date as being $454,000. The Valuer General allowed the objection and determined that the land value should be reduced to $425,000. 2 The letter dated 10 July 2006 from the Land and Property Management Authority (the Authority) on behalf of the Valuer General determining the objection, included advice to Mr Joseph as to the availability of appeal to this Court. The letter says: "If you are not satisfied with this decision, you are entitled to appeal against the determination to the Land and Environment Court of New South Wales for decision." 3 The letter then proceeds to provide details of the Court's location, address and telephone number. Notwithstanding that information, Mr Joseph apparently contacted an officer of the Authority and sought to understand whether there was a further avenue for objection, he being dissatisfied with the reduced figure which the Valuer General had determined. He asserts that on several occasions he spoke to officers of the Authority and was encouraged, as he understood the advice given to him, to lodge a further objection. 4 It is clear that he did so. There are letters from the Authority in both 2008 and 2010 which, in turn, refer to letters of objection received from Mr Joseph but in respect of which no further determination is made. The Valuer General indicated in letters to Mr Joseph that such further objections were out of time and that he was not prepared to entertain such objection, as was his discretionary right under s 35B of the Valuation of Land Act. 5 The fact that there were conversations of the kind to which Mr Joseph referred is evidenced by a record kept and produced by the Authority which reflects the substance of telephone enquiries made to it. One such record indicates that contact was had by Mr Joseph with an officer of the Authority on 7 August 2009. The note records that Mr Joseph was advised that his best option was to resubmit objections, the comment being recorded that "he has no right to take us to court." The basis for the latter observation is not understood, but the note confirms that Mr Joseph had made the enquiry and he was advised that further objections would at least be considered. Further records from the Authority in 2010 record enquiries by Mr Joseph indicating concern about the 2005 valuation, with an indication by the officer that any further steps would necessitate the taking of proceedings in the Land and Environment Court. 6 Notwithstanding the advice that it was open to Mr Joseph to bring proceedings in the Court, none of the correspondence nor, so far as it can be understood, the telephone discussions that were had, indicated to Mr Joseph that there was limitation upon the time within which an appeal to this Court could be brought. The letter dated 10 July 2006, while referring to the details of the Court for the purpose of entertaining any appeal on objection from the Valuer General's determination, made no mention of the limitation imposed by the Valuation of Land Act upon the time in which appeals to this Court could be entertained. 7 Again, in the letter of 13 January 2010 from the Authority to Mr Joseph responding to a further attempt to have an objection entertained by the Valuer General, it was indicated that an appeal could be taken to the Court. However, no indication was given that such an objection should be taken within a nominated time limit. I hasten to add that by the time the letter of 13 January 2010 came to be written, the time for appeal, at least conformably with s 38 of the Valuation of Land Act, had long since expired. However, important for present purposes is the fact that no mention was made of the limited time for appeal in that or any prior correspondence. 8 It is now necessary for me to consider the exercise of discretion available under s 38(2) of the Valuation of Land Act, which allows this Court to entertain an appeal after the sixty day period imposed by s 38(1) has expired. Subsection (1) requires that an appeal be made not later than sixty days after the date of issue of the notice of the Valuer General's determination of an objection. If that time limit was to be observed in the present case, the appeal to this Court should have been lodged on or about 30 September 2006. As I have earlier indicated, Mr Joseph's application by way of appeal to this Court was not filed until 12 March 2010. 9 The discretion to be exercised under s 38(2) is one that needs to be exercised in a principled manner. The principles relevant to be considered when called upon to exercise a discretion of that kind have been reflected in judgments of this Court. In particular the judgment of the present Chief Judge in Jassls Pty Limited v Valuer General [2006] NSWLEC 59 is relevant to be noticed. Having identified the principles that apply generally to extensions of time in matters requiring leave to appeal where the nominated time limit has been exceeded, the Chief Judge analysed the various principles to be derived from cases from the High Court through to this Court as they might be applied in a case such as the present. I have no need to repeat that analysis. Suffice it is to notice that for present purposes there are four matters to be considered. They are the length of delay that has been occasioned, the reasons for that delay, the extent of prejudice occasioned by reason of the delay, and whether or not there is an arguable case. It is appropriate that I turn to each of those matters. 10 There can be no question but that the length of delay between the time of the determination of the relevant objection in 2006 and the time at which the present application to this Court was lodged is very considerable. Ordinarily a delay of such length would weigh heavily against the grant of leave. However, in the present context, that delay needs to be considered conjointly with the reasons which are offered for it. 11 In a relative sense, the issue that arises as to the correct determination of land value in this particular case does not involve a significant sum of money. That is not to say that those values or differences in values are not significant to Mr Joseph. However, in absolute terms, a determination as to whether or not the correct figure is $425,000 or a figure for which he contends, which I understand to be something about $100,000 less, is not in the scheme of things greatly significant. He has endeavoured to inform himself of the appropriate processes for review without seeking any form of legal advice. He has endeavoured to negotiate with the Authority in order to achieve his objective of securing a determination of a lower land value but has not been successful in so doing. To some extent his failure in that regard has been the product of information, or perhaps in some cases lack of information, which has been given to him by the Authority and which has resulted in a very belated application to the Court. 12 I refer in that regard to the conversations that I have earlier recorded as having been had with officers of the Authority and also to the correspondence which, while directing his attention to the availability of appeal to this Court, did not draw his attention to the time which needs to be observed in order to commence an appeal. While it may be said that he is deemed to understand the law, in particular, the time limits which are imposed by statute, I think there are extenuating circumstances which should be applied to him in endeavouring to address, for himself, the requirements of the Valuation of Land Act. Particularly is that consideration required, given the relatively modest sums that are in issue. I am therefore satisfied that an adequate reason for the delay has been offered. 13 As was observed by Preston CJ in Jassls, in the case of an appeal under s 37 of the Valuation of Land Act, it is difficult to comprehend any prejudice that the Valuer General would suffer by reason of the delay which has been occasioned. Indeed, in the present case, counsel who appeared for the Valuer General candidly acknowledged that no prejudice was claimed. 14 The fourth of the elements that I have indicated that requires consideration is whether an arguable case has been demonstrated so as to justify the exercise of discretion to allow the appeal to be commenced so long after the date upon which it ought properly have been instigated. The only evidence that I have in that regard is a valuation report prepared by a valuer in respect of the same property but for the valuation date 1 July 2006. That report was prepared consequent upon an objection lodged by Mr Joseph with the Valuer General against the Valuer General's determination of land value for that year.

15 The valuation report which has been tendered has attached to it the analysis of a number of comparable sales which were relied upon in order to determine the valuation for the year 2006. One of those sales which is analysed is a sale of land said to be comparable. It relates to land in Oyster Bay which is said to have sold in July 2005. The analysis contained in that valuation indicates an analysed land value at that date, for a site described as being superior to the subject site, in the sum of $375,000. While this valuation could have no bearing, in itself, upon the valuation that is required to be undertaken in the current proceedings, it does, so it seems to me, provide some evidence upon which I could form a view that there is at least an arguable case on the part of Mr Joseph justifying the prosecution of his current appeal. 16 Having considered all of these matters, I am satisfied that this is an appropriate case in which to allow Mr Joseph to appeal pursuant to s 37 of the Act, albeit that that appeal is made after or outside the sixty day appeal period allowed by s 38(1). 17 Accordingly the orders I make are as follows:

1. Pursuant to s 38(2) of the Valuation of Land Act 1916, the applicant is allowed to appeal after the sixty day period for making the appeal provided in s 38(1) of the Valuation of Land Act .

2. The time for filing an appeal be extended to 12 March 2010 and the application Class 3 purported to have been lodged on that date be now treated as having instituted the appeal in these proceedings.

3. That each party pay its and his own costs of this application.

4. Proceedings listed for directions hearing before the List Judge on Friday 11 June 2010.

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