Atkinson & Atkinson v Ebonstone Pty Ltd

[1992] QCA 10

IN THE COURT OF APPEAL	[1992] QCA 010
SUPREME COURT OF QUEENSLAND

No. 85 of 1991

Before the Court of Appeal

The President
Mr Justice McPherson

Mr Justice Thomas

BETWEEN:

JAMES LESLEY ATKINSON and MERLE ATKINSON

(Plaintiffs) Appellant

- and -

EBONSTONE PTY. LTD.

(First Defendant) Respondent

JUDGMENT - THE COURT

Delivered the 3rd day of March 1992

MINUTE OF ORDER:

CATCHWORDS	PRACTICE - PLEADING - Appeal from order striking out claim for declarations against respondent that rental determination invalid - matter sufficient to establish valuer negligent - whether any basis for claims shown in pleading - whether court ought to interfere with order below.
Counsel:	J. Curran for the Appellants P. Applegarth for the Respondents
Solicitors:	Cranston McEachern & Co for the Appellants O'Shea Corser and Wadley for the respondents.

Hearing dates: 20 and 21 February, 1992
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 85 of 1991

BETWEEN:

JAMES LESLEY ATKINSON and MERLE ATKINSON

(Plaintiffs) Appellant

- and -

EBONSTONE PTY. LTD.

(First Defendant) Respondent

JUDGMENT - THE COURT

Delivered the 3rd day of March 1992

The appellants leased premises from the respondent and,

by the terms of their agreement, the rent payable (in the
circumstances which have occurred) is the current rental
value determined by a valuer appointed by the President of
the Australian Institute of Valuers, Queensland Division.
The lease contains various provisions concerning the basis
upon which the current rental value must be determined by
the President's Valuer, as he is described, and provides
that he is to "act as an expert not as an arbitrator and his

decision shall be final and binding on both parties ... ".

The appellants contend that the valuation carried out

by the Presidents' Valuer was performed negligently and
that, in consequence, the appellants have "suffered loss and
damage being the excess in rent attributed to the subject
premises ... over and above the current rental value ...".
A District Court action has been commenced by the appellants
against the President's Valuer seeking damages for
negligence. Somewhat inconsistently, unless the claims are
intended to be pursued in the alternative, the appellants
have joined in the District Court action a claim against the
respondent lessor for declarations that the "purported
determination of the valuer is invalid" and that the current
rental value is a sum nominated by the appellants. No
apparent basis is established for a further claim for relief
under sub-s 124(2) of the Property Law Act 1974 (as amended)
which is mentioned in the District Court Plaint.

A Judge of the District Court struck out the

appellants' claim against the respondent and the appellants

have appealed to this Court.

Notwithstanding their contention that the President's
Valuer's determination is invalid, the appellants continue
to insist that the lease is still on foot, It was not
explained how the lease survived in the absence of a binding
provision as to rent. Perhaps the answer might be
temporarily found in provisions in the lease which provide
what rental is to be paid on an interim basis while the
machinery for the determination of rental is implemented.
However, at best for the appellants, that assumes that the

means remain for a rental determination under the lease.

Each stage of the process leading to such a conclusion

poses considerable difficulty for the appellants. It is

sufficient to note the following.

The appellants must first succeed in establishing their

claim to have the rental determination made by the
President's Valuer declared invalid or at least set aside.
At its broadest, the contention upon which this claim was
grounded was that it would be sufficient to establish that
the President's Valuer was negligent, as asserted against
him in the appellants' pleading. Modern authority does not
support such a view: see, for example, Legal & General Life
of Australia Ltd. v. A. Hudson Pty. Ltd. (1985) 1 NSWLR 314,
335-336; Wickham Properties Pty. Ltd. v. Astor Motel Pty.
Ltd. (1991) Q Conv. R. 54-391; Crusader v. Santos (Full
Court of the Supreme Court of South Australia, unreported,

No.2635 of 1989, 18 June 1989.

Some complications may be able to introduced into the

consideration of such issues. For example, s57 of the
Property Law Act forms an important part of the appellants'
argument. Essentially, it seemed to be asserted that s57
applies to the President's Valuer's determination, which was
therefore not "final and binding" as the lease states, but
only "prima facie evidence" of the current rental value and
thus of the rent agreed to be paid. However, even if a
further assumption favourable to the appellants be made that
s57 is applicable, it does not seem to lead to where the
appellants seek to arrive. The only advantage of s57 to the
appellants seems to be as a means for them to establish by
evidence that the President's Valuer's determination is
invalid or should be set aside. Their fundamental claim is
that the President's Valuer's determination is invalid, not
that it is "prima facie evidence".

There is nothing to indicate that s57 is needed if a

sufficient basis for invalidity or setting aside is properly
put in issue. Conversely, nothing in s57 widens the grounds
upon which such a claim might be based consistent with Legal
& General Life of Australia Ltd v. A. Hudson Pty. Ltd. and

the other cases referred to above.

According to Legal and General Life of Australia Pty. Ltd.
v. A. Hudson Pty. Ltd., the appellants must assert and prove
that the President's Valuer's determination was not in
accordance with their lease with the Respondent. The
appellants have not pleaded that the lease contained an
implied term which would have been breached if the
President's Valuer's determination has been made
negligently, and Legal & General Life of Australia Ltd. v.
A. Hudson Pty. Ltd. at p.336 D-F is inconsistent with such a
conclusion. Although some allegations made by the
appellants against the President's Valuer might perhaps be
able to be converted to suitable allegations against the

respondent, no attempt has been made to do so to this point.

It might be that there is some wider basis upon which

the appellants can attack the President's Valuer's
determination if it is what has been described as a
"speaking valuation": see, for example Mayne Nickless
Limited v. Solomon (1980) Qd.R.171. It is unnecessary to
pursue that question at this point since again no such
allegation is pleaded.

Nor is there any allegation of any other ground, such as fraud or collusion, upon which the President's Valuer's determination might conceivably be attacked on a recognized

basis.

Even if the appellants were to overcome the first

hurdle and set up a case which could lead to a decision that
the President's Valuer's determination is invalid or should
be set aside, their difficulties are not at an end. As
stated above, the present claim seeks not only to invalidate
the President's Valuer's determination but also to maintain
the lease despite the absence of any agreed rent. The claim
as pleaded seeks to have the current rental value - and thus
the rent agreed to be paid - determined by the Court.
However, the appellants were unable to suggest any basis

upon which the District Court could perform such a function.

Reference was then made to the possibility that the

appropriate order might be that the respondent join with the
appellants in having a further determination of the current
rental value. However, the appellants were unable to point
to any authority to indicate that such a course was possible
in the District Court or otherwise and there seem to be
problems with such an approach. Even if the contractual
provisions relating to the determination of the rent payable
by the appellants to the respondents have not been fully
effectuated, at least validly, those provisions have been
implemented at least to the point where the President's
Valuer has been appointed and has become, in effect, a named
person agreed by the parties to determine the current rental
value. The appellants were unable to suggest how it was
possible to retreat beyond that point or, if that could not
be done, how the President's valuer could be obliged to
perform a further determination of current rental value. In

any event, no such case is presently pleaded.

In all the circumstances, this Court should not

interfere with the order made in the District Court to
strike out the appellants' claim against the respondent.
The appellants are not precluded from a subsequent attempt
to rejoin the respondent in the District Court action or
from bringing a further action against the respondent if
they are able to formulate a claim in accordance with the
law.

The order of the Court is that the appeal be dismissed

with costs.