YFG Shopping Centres Pty Ltd as TTE v Valuer-General [2017] QLC 11

Bunning Properties Pty Ltd v Valuer-General; The Trust Company Limited v Valuer-General [2016] QLC 63, considered

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

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52, applied

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, applied

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, applied

DD Purcell of Counsel, direct brief from Savills Valuations, agents for the appellant

R Rowling (Senior Lawyer), Crown Law, for the respondent

[1] YFG Shopping Centres Pty Ltd as TTE appealed against the Valuer-General's annual valuation of three properties. Shortly before the parties' valuers were to convene a meeting of experts to produce a Joint Report for the Court, the agent for YFG notified a significant change in the comparable sales relied upon in support of the appeals.

[2] The Valuer-General, ultimately, did not oppose YFG having leave to amend the particulars of its appeal, but sought an order that YFG pay his costs of the application and the costs incurred as a result of the amendment.

[3] Any order for costs would be made under s 171 of the Land Valuation Act 2010. The starting point is that each party to an appeal must bear the party's own costs of the appeal. The Court has discretion to award costs in specified circumstances.

[4] YFG argued the circumstances for ordering costs had not arisen. The agent for YFG submitted the Valuer-General's application fails at the first hurdle because the conditions to enliven the exercise of discretion do not exist. It asserted those conditions are:[1]

"a. that the Appellant introduced new material, or sought to introduce new material,

1. that the Appellant did not properly discharge its responsibilities for the appeal;

c. that the Respondent incurred costs as a consequence thereof".

[5] That misstates the requirements. Consequential costs are only relevant where new material has been introduced. They are not relevant if a party has not discharged its responsibilities for the appeal.

[6] The Valuer-General argues the following circumstances apply:[2]

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

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

Costs incurred because of introduction of new material

[7] Dealing with the first circumstance asserted by the Valuer-General, YFG obtained leave to amend its particulars in all three appeals. In each case, the amendment was substantial. For two appeals (102-16 & 107-16), YFG abandoned four sales and added four new sales. For the third appeal (105-17), YFG abandoned three sales and added four new sales. Those changes to the sales asserted as comparable were notified only five business days before the valuers' meeting was to take place.

[8] YFG did not dispute that the further particulars introduced new material and would result in the Valuer-General incurring further costs. In arguing against an order for costs, YFG relied on my decision to refuse to award costs in D & S Ring Family Pty Ltd as TTE v Valuer-General.[3] That case also involved the addition of new sales to the particulars of a ground of appeal. The agent for YFG presented D & S Ring Family as a more egregious case than this one, because in D & S Ring Family the valuers had already met, while in this one they have not.

[9] That fails to appreciate other distinctions between that case and this application. In D & S Ring Family the Valuer-General agreed most of the new sales were relevant. Further, the valuers had discussed the new sales at their meeting, and the parties agreed a further valuers' meeting was unnecessary.

[10] In this case, the Valuer-General has or will incur costs as a result of the new sales evidence. The Valuer-General was required to prepare a new Statement of Facts, Matters and Contentions and to revisit disclosure. Further, his valuer will incur additional costs in analysing the four new sales.

[11] Turning to the second circumstance relied upon by the Valuer-General, the crux of his argument is that YFG was not diligent in properly and fully articulating its case, as it was required to do by earlier direction of the Court.

[12] The agent for YFG alleged the Valuer-General's approach to the application was technical.[4]

[13] I reject YFG's submission. This application is one of many that were before the Court at that time. The Valuer-General raised a legitimate and important question about the Court's power to allow the appellant to amend the particulars of the grounds of appeal. That question was fully argued before another Member of the Court, Mr Cochrane, in Bunning Properties Pty Ltd v Valuer-General; The Trust Company Limited v Valuer-General.[5]

[14] Sensibly, the parties agreed in this application (and others) to defer dealing with the application until Mr Cochrane delivered his decision. Although unsuccessful, Mr Cochrane's reasons demonstrate the Valuer-General's argument raised a genuine legal question about the Court's power in appeals of this nature.

[15] Further, YFG's agent relies on past practice in asserting the Valuer-General's approach to this application was technical. In D & S Ring Family I observed there has been an unfortunate practice in land valuation appeals for parties to introduce new sales evidence after they were supposed to have clearly articulated their case. As 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 should be clear by the time the parties clarify their case on appeal: the appellant by its particulars and the Valuer-General by his Statement of Facts, Matters and Contentions.

[16] The practice relied upon by YFG does not conform to the Court's usual directions and provides no comfort for YFG in this case. It has offered no explanation for its substantial change to comparable sales evidence raised months after it had delivered its particulars. In those circumstances I am satisfied that YFG did not discharge its responsibilities in the appeal.

[17] It follows that the circumstances of this case enliven the Court's discretion to award costs. The question is whether discretion should be exercised in the Valuer-General's favour.

[18] The starting point for land valuation appeals is the parties must bear their own costs. Further, a restrained approach to the power to award costs is consistent with the requirement that the Court:[6]

"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".

[19] Costs are not awarded to punish. They are compensatory in nature.[7] In the context of an interlocutory process, they are awarded to indemnify one party against the expense to which they have been put by reason of the other party's conduct of the proceedings.

[20] YFG has not explained why it did not properly articulate its case when it provided its particulars some months ago. It relies on a practice that undermines and is in conflict with the specific directions made in this case. YFG denied the Valuer-General was prejudiced by the amended particulars, but that is clearly wrong. YFG sought a procedural indulgence which resulted in additional costs to the Valuer-General.

[21] The Valuer-General should have its costs, but not of all three appearances requested. I consider at least one of them would have been necessary in the ordinary course of case-management, even without YFG's application.

[22] I make the following orders in each appeal:

(a) the respondent's costs of and incidental to the application, including the appearances on 9 September 2016 and 28 October 2016; and

(b) the respondent's costs of preparing, filing and serving a revised Statement of Facts, Matters and Contentions and further disclosure (as ordered on 25 November 2016).

2. I will fix those costs by further order after:

(a) the respondent has filed and served a sworn statement from his solicitor itemising the incurred or estimated costs (and the basis for the estimate): and

(b) the appellant has, within 14 days of service, filed and served a brief response, if any, to that statement.

[1] Appellant's submissions dated 18 January 2017 at [12].

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

[3] [2016] QLC 74.

[4] Appellant's submissions 18 January 2017 at [13] & [27].

[5] [2016] QLC 63.

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

[7] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 per Mason CJ; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67]; see also Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [34].