Pollak -V- Valuer General [1999] NSWLEC 37

LEGISLATION CITED: Application to appeal out of time. Principles for exercise of discretion.

DATE OF JUDGMENT DELIVERY: 02/26/1999

APPLICANT: Mr J. Pollak, Barrister LEGAL REPRESENTATIVES: RESPONDENT: Mr. Robertson, Solicitor

By its amended Notice of Motion pursuant to leave granted by the Court on 18 January 1999, the Owners - Strata Plan 1842 seek the Court's leave to bring an appeal pursuant to s.38(1) of the Valuation of Land Act 1916 out of time.

The Owners - Strata Plan 1842 own land known as No. 1 Wentworth Street, Point Piper which was the subject of a "land value" valuation (Valuation No. 13800) made by the Valuer-General pursuant to s.19 of the Valuation of Land Act as at the valuation base date of 1 July 1997. The objection against that valuation (in the sum of $2.68 million) was made by the owner, and by letter dated 20 May 1998, the Valuer-General notified the owner that its objection had been allowed and the land value was altered to $2.25 million.

On 7 July 1998 the present proceedings were commenced by application filed in the Court by "Aana Pollak Strata Plan 1842" (Mrs Pollak is the owner of three of the four lots comprised in Strata Plan 1842).

On 27 October 1998, when the proceedings came on for hearing before Assessor Watts, the Valuer-General, apparently without any prior notice to the Applicant (who was represented at the hearing by her husband Dr Joseph Pollak, a medical practitioner and an associate member of the New South Wales Bar), raised objection to the competency of the proceedings on the ground that the applicant was not the owner of the land, the subject of the Valuer General's valuation and determination of the objection thereto, and was not a person to whom notice of valuation had been given pursuant to s.29(1) of the Valuation Act and was not a person entitled to object to such valuation and hence, was not an objector within the meaning of s.38(1) of that Act.

Some debate ensued during which the Assessor indicated that he regarded the objection to the competency of the proceedings as being soundly based and that the Applicant had two options - either for the Owners Strata Plan 1842 to seek leave to commence proceedings out of time or to discontinue them. The Assessor expressed the opinion that he did not have the power to grant any amendment to the originating process so as to substitute the Owners Strata Plan 1842 as the applicant.

After some discussion, the Applicant elected to discontinue the proceedings and thereafter filed a Notice of Discontinuance.

It is against the foregoing background facts that the Applicant on 16 December 1998 filed the present Notice of Motion seeking leave to amend the originating process by substituting as the applicant the Owners Strata Plan 1842 and seeking an order that the proceedings be re-listed before the Assessor for determination of the appeal on the merits.

When the Applicant's Notice of Motion came before me as Duty Judge on 18 January 1999, I granted leave for the Motion to be amended in the manner I have earlier stated. (This was necessary because the power of amendment was no longer available in view of the fact that the proceedings had been regularly terminated by the Applicant, having filed the Notice of Discontinuance on 27 October 1998.)

At the same time, I gave directions for the filing of submissions in the event that the Valuer-General opposed the relief claimed in the amended Notice of Motion.

The Valuer-General has filed written submissions opposing the granting of leave for fresh proceedings to be brought by the Owners Strata Plan 1842 against the Valuer General's determination of its objection to his valuation as notified by him on 20 May 1998. Three grounds are advanced by the Valuer-General - (i.) The original proceedings were voluntarily discontinued on 27 October 1998; (ii.) At the hearing before the Assessor, Mr Pollak accepted the Valuer-General's determination of the objection that had been raised to his valuation; (iii.) The time to appeal against the Valuer General's determination on the objection had expired on 27 July 1998.

The competing argument advanced on behalf of the Owners Strata Plan 1842 was to the effect that the Applicant, on 27 October 1998, faced with the Valuer-General's objection to the competency of the proceedings, in deciding to discontinue the proceedings laboured under a misapprehension in that Dr Pollak did not appreciate that the originating process had named as the applicant "Aana Pollak Strata Plan 1842" and that in discontinuing the proceedings, Dr Pollak was not signifying any acceptance by his wife, or the Owners Strata Plan 1842, of the Valuer-General's determination of the objection raised against his valuation.

Section 38(1) of the Valuation of Land Act provides for an appeal by an "objector" dissatisfied with the Valuer-General's determination on an objection, to be made "within the time and in the manner provided by the Rules of Court".

Part 17 Rule 1(1) of the Court's Rules provides that a person may commence proceedings "at any time within 60 days after the right of appeal, objection or reference first arises".

Applying this Rule to s.38(1) of the Valuation of Land Act means that an appeal against the Valuer-General's decision in the present case was required to be made within 60 days after 20 May 1998 (when the Valuer-General notified the objector of his determination on the objection). The proceedings were commenced on 7 July 1998 well within that 60 day period.

However, the relevant 60 day period has now long expired. Hence, the need for the present amended Notice of Motion.

In this respect, Part 1 Rule 8 of the Court's Rules confers power upon the Court to "extend …any time fixed by these Rules…" (subrule (1)) whether the application is made before or after the expiry of the stipulated time (subrule(3)). Accordingly, there is no question that the Court possesses the power to grant the relief claimed in the amended Motion.

The principles for the exercise of the discretion conferred by Part 1 Rule 8 may be stated (as they appear in the reported headnote to the Court of Appeal's decision in Danny Kidron & Andrew Spaile Architects P/L -v- Garrett (1994) 35 NSWLR 572) as follows:

"The exercise of discretion requires an extension to be granted if the delay has been small, the appeal is not hopeless and no relevant prejudice will be caused."

These same principles were applied in Perpetual Trustees Australia Pty Ltd v. Chief Commissioner of State Revenue (unreported 25 September 1998) in exercising the comparable statutory power conferred upon this Court by s.98 of the Taxation Administration Act 1996 to extend the time for appeal under that Act.

In my judgment on the facts of the present case, the statutory discretion should be exercised by granting the extension of time sought in the amended Motion.

Although, on the face of it, the application to appeal out of time was not made until the Applicant filed her Notice of Motion on 16 December 1998, (some 5 months after the expiration of the stipulated period for appeal), the fact is that the Court, at the hearing on 27 October 1998, did possess the power to amend the originating process to substitute as the applicant the Owners - Strata Plan 1842 (see s.68 of the Land and Environment Court Act 1979 and Part 10 of the Rules of Court) and that had the necessary amendment been sought, it would have almost certainly been granted in the interests of justice.

Moreover, on the very next day following the Applicant's filing of the Notice of Discontinuance, the Applicant sought the Valuer-General's consent to the setting aside of the Notice of Discontinuance, the amendment of the necessary originating process and the re-listing of the case. However, the Valuer General withheld his consent to the Applicant's attempt to revive the appeal, and this prompted the Applicant to file her Motion.

Seen against these background facts, the delay in seeking the present relief is relevantly small.

Secondly, there is no evidence to suggest that the appeal is relevantly hopeless.

Thirdly, the Valuer General has not demonstrated any relevant prejudice if leave be granted.

In these circumstances, it is an appropriate course for the Court to grant the relief claimed. Accordingly, I make the following orders: 1. Pursuant to Part 1 Rule 8 of the Rules of Court, the time for appealing pursuant to s.38(1) of the Valuation of Land Act 1916 against the Valuer-General's determination of the objection by the Owners Strata Plan 1842 to his valuation in respect of land known as No. 1 Wentworth Street, Point Piper be extended to 5 March 1999. 2. The question of costs be reserved. --------------OoO--------------

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 7 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD. Associate

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