Perilya Broken Hill Limited v Valuer General

Judgment 1In this remitter from the Court of Appeal, the applicant moves for leave to reopen facts determined at the first hearing and not disturbed by the Court of Appeal. The issue before me is whether the motion should be stood over to the final hearing, as the applicant proposes, or whether it should be determined before the hearing, as the respondent proposes. 2The proceedings are a valuation appeal in Class 3 of the Court's jurisdiction by Perilya Broken Hill Limited against the Valuer-General's determination pursuant to s 6A of the Valuation of Land Act 1916 that the land value of mining land at Broken Hill was $20.9 million. Lloyd AJ allowed the appeal and determined the land value as $4.9 million: Perilya Broken Hill Ltd v Valuer-General [2012] NSWLEC 235. The Valuer-General appealed to the Court of Appeal, which allowed the appeal for error of law and remitted the matter to this Court for redetermination in accordance with its decision: Valuer-General v Perilya Broken Hill Limited [2013] NSWCA 265, (2013) 195 LGERA 416. Shortly thereafter, I made the following order, which has occasioned the applicant's leave motion: Facts determined by Lloyd AJ at the first hearing and not disturbed on appeal are not to be reopened without leave of the Court. 3The Valuer-General then moved for separate and preliminary determination of one of the questions in the matter but, when that motion was called on for hearing, the Valuer-General consented to it being dismissed with costs. On that occasion, I dealt with the background to the proceedings and the issues in some detail in a costs judgment: Perilya Broken Hill Limited v Valuer General (No 3) [2013] NSWLEC 215. 4Thereafter, the Valuer-General filed and served evidence including as to a new valuation methodology to replace the one held to be legally erroneous by the Court of Appeal. The Valuer-General now contends that land value was in the approximate range of $68 million to $318 million (in 12 alternative scenarios), but does not say that the Court should increase the Valuer-General's original valuation assessment. 5In March 2014, the Valuer-General filed a notice of motion in the following terms seeking leave to reopen facts determined by Lloyd AJ and not disturbed on appeal: 1. To the extent necessary, the respondent have leave pursuant to paragraph 1 of the directions made 20 September 2013: (a) to rely upon the total figures for the proved and probable reserves of zinc, lead and silver published by the applicant in its document entitled "Perilya Broken Hill Limited. Resource & Reserves Estimate 30th June 2007" being a part of Exhibit A admitted when this matter was heard before Lloyd AJ (see Blue Appeal Book page 269S) namely: "Zinc 6.7% of 11,198,00 tonnes; Lead 4.9% of 11,198,000 tonnes; Silver being 49.5 grams per tonne of 11,198,000 tonnes"; and (b) if it becomes necessary to adopt any after tax cash-flow analysis, to calculate depreciation in accordance with s 40.6 of the Income Tax Assessment Act 1997 (Cwth) 6On 11 March 2014, by consent, I ordered that the Valuer-General's notice of motion be stood over to the final hearing. However, today the parties have agreed that that order should be varied by now giving the Valuer-General leave in terms of paragraph 1(a) of the notice of motion, leaving only the residue to be stood over to the hearing. 7Thereafter, the applicant filed and served evidence that would reopen a number of findings made by Lloyd AJ at the first hearing. 8Consequently, on 7 July 2014 the applicant filed a notice of motion seeking leave to do so in the following terms: 1. To the extent necessary, the Applicant have leave pursuant to paragraph 1 of the directions made on 20 September 2013, to rely on evidence relevant to proof of the following facts as at 1 July 2007 (including, as the circumstances require, in respect of the knowledge or understanding of reasonable and fully informed parties to a hypothetical sale transaction as at 1 July 2007): (a) The estimated cost to obtain / reconstruct mining information (that is, information that is not in the public domain that is necessary or appropriate for the operation of a mine at Perilya Broken Hill) to an adequate level of confidence that would allow responsible operation of the Perilya Broken Hill mine is $270,691,000. (b) The estimated time to obtain / reconstruct mining information to an adequate level of confidence that would allow responsible operation of the Perilya Broken Hill mine is 7.8 years. (c) The estimated time required to assess mining information and seek approval to purchase infrastructure and other equipment necessary for the operation of the Perilya Broken Hill Mine is 0.2 years. (d) The estimated cost of care and maintenance of the Perilya Broken Hill Mine for a period of ten years is $266 million. (e) The estimated cost of care and maintenance of the Perilya Broken Hill Mine for a period of two years is $53.2 million. (f) The forecast rate of production for the Perilya Broken Hill Mine from 1 July 2007 is 1.88 million tonnes per annum, indicating a mine life of 5.96 years. (g) The forecast mineral prices, determined in accordance with the consensus estimate methodology, are: FY2008 FY2009 FY2010 FY2011 Long Term Zinc A$/t 4,100 3,410 2,900 2,470 1,970 Lead A$/t 2,010 1,600 1,220 1,160 1,100 Silver A$/kg 570 580 580 460 500