Kayray Pty Ltd v Whittlesea CC & Anor

The primary matter considered at the Practice Day hearing before me was a contested application by the Valuer-General Victoria to be joined as a party in the proceeding.
The Valuer'General's application to become a party was made in the usual way pursuant to s 60 of the Victorian Civil and Administrative Tribunal Act 1998. In correspondence dated 28 July 2008, the Valuer-General had relied on four grounds in support of its application:
- (a) the applicant has failed to provide contended figures along with their application;
- (b) the Valuer-General Victoria wishes to uphold the 2006 valuation figures returned by the City of Whittlesea and/or maintain its rights to confirm any adjustments;
- (c) the subject land forms part of a prime development site, and the Valuer-General Victoria wishes to uphold the assessed levels of value as supported by sales evidence;
- (d) the Valuer-General Victoria has an interest in the application in accordance with his duties and statutory obligations. These duties are to assist valuers to make valuations that are true and correct; ensuring there are no unsubstantiated changes to the valuations that have been declared generally true and correct; in investigating any matter he considers may impact on the statutory interpretation of the Valuation of Land Act 1960.
The first of these grounds is not substantiated. Although the applicant had not provided its contended valuation figures when its application to the Tribunal was initially lodged on 10 June 2008, its valuation and comparative sales material was subsequently filed with the Tribunal. It does seem however to the Tribunal that there is some difficulty existing in the lines of communication between the applicant, the Council as rating authority, and the Valuer-General Victoria which ought to be resolved between the parties. It is obviously difficult for the Valuer-General to make a proper assessment of whether he wishes to be joined as a party in a proceeding (after receiving statutory notice of the proceeding) if he is not also made aware of the contended values "in dispute".
At the Practice Day hearing, Mr Wiseman on behalf of the Valuer-General elaborated on the other grounds through which the Valuer-General's joinder to the proceeding was sought. He first referred me to s 60 of the Victorian Civil and Administrative Tribunal Act 1998 which provides as follows:

The Valuer-General's application for joinder sought to rely in particular on the matters in s 60(1)(b) and (c).
The reference to "interests" in s 60(1)(b) has commonly been given a broad interpretation in its application in other Lists in the Tribunal, including "any interest in a proceeding which a person has beyond that of an ordinary member of the public"[1]. Based on such an interpretation, the Valuer-General will always have a sufficient interest, for the purpose of s 60(1)(b), given his statutory functions in relation to valuations in the State of Victoria under the Valuation of Land Act 1960. Moreover, under s 22(7) of the Valuation of Land Act 1960, this Tribunal must notify the Valuer-General of all applications for review under s 22 of the Act. This carries with it an implicit expectation that the Valuer-General will use such notice, amongst other things, to determine those proceedings in which he might seek joinder. In the Tribunal's experience, the Valuer-General seeks to be joined in somewhere between 10 and 15 percent of proceedings. These generally relate to high-value properties (such as office buildings in the CBD, shopping centres and the like), large land parcels in urban growth corridors, or matters where there is an unusual valuation issue or matter of statutory interpretation in issue. Although of less relevance to the matter before me, municipal valuations are commonly used as a basis for matters other than Council rates (for example, State land tax) and the Valuer-General will therefore commonly have an interest in protecting valuations over and beyond the interests of the Council as rating authority.
Given the Valuer-General's functions and responsibilities, I consider it would be a rare instance where the Valuer-General would not be joined as a party in a valuation proceeding under s 22 of the Valuation of Land Act 1960 where it makes application to be joined. However, s 60 of the Victorian Civil and Administrative Tribunal Act 1998 provides the Tribunal with a discretion as to the joinder of parties, and the Valuer-General should not therefore presume that he will automatically be joined in all proceedings.
In the present matter, I have some sympathy with the submissions made by Mr Brown on behalf of the applicant. The Valuer-General's reasons for joinder are quite broad and generic, relying generally upon his broader statutory interests, but do not clearly disclose why the Valuer-General may have taken a specific interest in this matter. In exercising the discretion to join a party under s 60 of the Victorian Civil and Administrative Tribunal Act 1998, I am required to consider, amongst other things, whether there is any prejudice to any party or to the person proposed to be joined that may result from granting or refusing to grant the application for joinder and/or whether the person proposed to be joined can protect their interests in some way other than by becoming a party to the proceeding[2]. It is difficult to consider these matters when only broad generic grounds for joinder are provided, and the Valuer-General should perhaps in the future include within his grounds for joinder in Tribunal proceedings a more specific ground relating to the particular matter before the Tribunal.
In the present case, one of the grounds asserted by the Valuer-General for joinder is that the subject land forms part of a prime development site, and the Valuer-General Victoria wishes to uphold the assessed levels of value as supported by sales evidence. As I have indicated earlier, it is not uncommon for the Valuer-General to seek to be involved in proceedings relating to large parcels of land in the urban growth corridors of Melbourne. Here, also, the site valuation is in the vicinity of $20,000,000, and the applicant contends for a site value in the vicinity of $15.3M. The amount in dispute is significant, and a matter where the Valuer-General for Victoria has a legitimate interest if he seeks to uphold the original valuation. There may be implications for the valuation of other land in the immediate vicinity in this growth corridor if there was a material change in the valuation arising through this proceeding. In addition to the matters in s 60(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998, I am therefore also satisfied under s 60(1)(c) that it is desirable in the present case that the Valuer-General be joined.
Given that the Valuer-General is presently unsure as to the extent to which the City of Whittlesea will defend its valuation and this proceeding, I accept that the Valuer-General cannot assume that its interests will be protected simply by the rating authority's involvement in the proceeding. Moreover, although there may be some slight additional costs to the applicant in having another party joined in the proceeding, I do not believe that there will be any delay in the proceeding caused by the joinder of the Valuer-General. Accordingly, any prejudice to the applicant resulting from my decision to allow the joinder of the Valuer-General is minimal in this case.
It follows from all of the above that I consider that the Valuer-General should be joined as a party in this proceeding. I have made consequential orders referring this matter to a compulsory conference.

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Kayray Pty Ltd v Whittlesea CC & Anor (Land Valuation) [2008] VCAT 1942 (17 September 2008)

Parties