BP Australia Pty Ltd v Valuer-General

[2018] QLC 34

LAND COURT OF QUEENSLAND

CITATION:

BP Australia Pty Ltd v Valuer-General  [2018] QLC 34

PARTIES:

BP Australia Pty Ltd
ACN 004 085 616
(appellant)

v

Valuer-General
(respondent)

FILE NO:

LVA713-17

DIVISION:

General division

PROCEEDING:

Application for disclosure

DELIVERED ON:

4 October 2018

DELIVERED AT:

Brisbane

HEARD ON:

26 September 2018

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDER:

I make the orders set out in Attachment A.

CATCHWORDS

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where orders for limited disclosure not opposed save on the question of costs – where the appellant contested the relevance of the documents it agreed to disclose - where parties bear their own costs in the usual course – whether the appellant did not properly discharge its responsibilities in the appeal – where no order was made as to the costs of the application

Land Valuation Act2010, s 171(1),(2)(f)

APPEARANCES:

B Kabel of Counsel (instructed by Colin Biggers & Paisley) for the appellant

J Hastie of Counsel (instructed by Gadens) for the respondent

1. BP Australia Pty Ltd has appealed against the valuation issued by the Valuer-General for one of its properties. The Valuer-General applied for disclosure of certain documents relating to sales that it says are comparable sales for determining the site value of the property. There have been some discussions between the parties to try to resolve the matter and, largely, they were successful.

1. In relation to one sale, BP has already provided a document relating to certain costs, and it has agreed to provide two more documents, subject to confidentiality undertakings. BP has also agreed to provide disclosure of documents in its valuer’s possession, relating to a number of other sales. It has also filed an affidavit asserting that it has no other documents in the categories sought by the Valuer General in its possession or power.

1. After hearing from the parties about costs, I adjourned to allow the parties to provide draft orders to give effect to their agreement about disclosure and said I would provide brief written reasons on the costs application. These are those reasons.

1. The Valuer General seeks the costs of the application. It argues the documents BP now has and will disclose are directly relevant and BP should have disclosed them without the Valuer General having to apply for orders. In any case, BP’s conduct in the application justifies an award of costs, because it has not responded appropriately to its application.

1. BP argues I should make no order as to costs. It submits the Valuer General has not established that the broad categories of documents it requests are directly relevant to an issue in the proceedings. They relate to the purchaser’s intention and knowledge prior to the sale as well as post sale knowledge. The Valuer General has not demonstrated there are special circumstances that would make those sorts of documents relevant. Further, BP says its conduct in this application does not justify the Court making a costs order against it.

1. The Valuer General’s request for disclosure was in broad compass. As formulated, the categories could capture a wide range of documents that informed the purchaser’s assessment of the business case for the proposed use of the site and whether that assessment proved to be sound. Whether such documents are relevant will depend on the circumstances of the case. Absent special circumstances, the Court will generally not inquire into such factors, accepting that they are resolved in the price paid for the property.[1] The Valuer General has not pointed to any special circumstances.

   [1]Valuer General v Fenton Nominees Pty Ltd 1982 (150) CLR 160 at 166.

1. However, the question of relevance is not determined merely by considering whether the documents go behind the fact of the sale and record information about the purchaser’s intention and knowledge. Where the valuers are using a comparable sale of an improved property to derive a site value for the subject property, it will be necessary to go behind the sale to some extent. The valuers will need to account for the value of infrastructure credits and the benefits or burdens of existing improvements, depending on the purchaser’s intentions for the property.[2] Counsel for BP appeared to concede as much.

   [2]Valuer General v Fenton Nominees Pty Ltd 1982 (150) CLR 160 at 165 – 166.

1. BP has agreed to disclose some documents. The relevance of documents voluntarily disclosed may be in contest at trial. It is not appropriate to decide that question now. It is sufficient to observe that the Valuer General has not demonstrated the direct relevance of all documents it has called on BP to disclose. The fact that BP is disclosing a few documents does not mean the Valuer General has been substantially successful in its application.

1. In a valuation appeal, the usual position is that each party bears their own costs of the appeal.[3] The Court may award costs in certain circumstances, including where a party did not properly discharge its responsibilities for the appeal.[4]

   [3]Land Valuation Act 2000 s171(1).

   [4]Land Valuation Act 2000 s171(2)(f).

1. Although the Valuer General raised the adequacy of BP’s disclosure in late July, it identified the particular categories of documents it sought in a letter from its legal officer to the solicitors for BP dated 14 August. I have already observed the Valuer General has not satisfied me of the direct relevance of all documents that might fall within the broad categories described in the application.

1. I adjourned the application by consent to enable the parties to attempt to reach agreement. BP participated in fruitful discussions with the Valuer General. It has agreed to make limited further disclosure, while maintaining the contest about relevance. The Valuer General has not persuaded me that BP has failed to properly discharge its responsibilities in this appeal.

1. I will make no order as to the costs of the application.

ORDER:

I make the orders set out in Attachment A.

FY KINGHAM
PRESIDENT OF THE LAND COURT

Attachment A

The Court ORDERS that:

Appellant’s Further Disclosure

1. By 4pm, Friday 28 September 2018, a solicitor acting on behalf of the Respondent in this proceeding, be at liberty to inspect and take one copy of the following confidential documents at the offices of the solicitors for the Appellant:

   (a)Execute Finance Memorandum dated August 2016; and

   (b)Development Deed – Aratula between Tinca 2 Pty Ltd as trustee and BP Australia Pty Ltd,

   (Confidential Documents).

2. Before any inspection contemplated by paragraph 1 of these orders takes place, the solicitor acting on behalf of the Respondent in this proceeding must deliver to the Appellant a signed confidentiality undertaking in the form contained in ‘Annexure A’ to these orders.

3. Before copies of the Confidential Documents are provided to the experts engaged by the Respondent, the experts engaged by the Respondent must deliver to the Appellant a written undertaking in the form contained in ‘Annexure B’ to these orders.

4. By 4pm, Friday 28 September 2018, the Appellant must provide disclosure of any documents relating to the following additional comparable sales included in the Appellant’s Amended Statement of Facts, Matters and Contentions dated 23 August 2018:

   (a)459 Pumicestone Road, Caboolture;

   (b)332 Ripley Road, Ripley; and

   (c)Lot 2-12 Cemetery Road, Goondiwindi.

5. Paragraphs 1 to 8 of the Orders made by the Land Court on 22 August 2018 are vacated.

Statement of Evidence by Quantity Surveyor

1. By 4pm, Thursday, 11 October 2018, the Valuer-General must file in the Land Court Registry and serve on BP Australia Pty Ltd a statement of its evidence (as that term is defined in the Land Court Rules 2000) by its Quantity Surveyor to be relied upon at the hearing.

2. The filed statement of evidence will be their evidence in chief at the hearing, unless the court orders otherwise.

Consolidated Brief of Instructions to Valuation Experts

1. By 4pm, Friday 12 October 2018, the parties must prepare and deliver to the valuation expert witnesses a single brief of instructions which:

   (a)identifies any issue any party considers the experts need to address; and

   (b)includes any information or documents any party considers relevant to those issues.

2. Including information or a document in the brief of instructions is without prejudice to the parties' rights to object at the hearing to the admission into evidence of all or part of any information or document included in the brief of instructions, and to object to any evidence relating to the disputed information or document.

Joint Expert Meeting - Valuers

1. By 4pm, Friday 19 October 2018, the valuation witnesses must participate in a meeting of experts (as that term is defined in the Land Court Rules 2000).

2. By 4pm, Friday 16 November 2018, the valuation witnesses must produce a joint report (as that term is defined in the Land Court Rules 2000) and deliver a copy to each party.

3. BP Australia Pty Ltd must file a copy of the joint report in the Land Court Registry within two (2) business days of its receipt.

4. Unless otherwise ordered, the valuation witnesses may not file any statement of evidence other than their joint report.

By the Court

Registrar

“Annexure A”

IN THE LAND COURT
OF QUEENSLAND FILE NUMBER:        LVA713-17

BETWEEN

BP AUSTRALIA PTY LTD

Appellant

AND

VALUER-GENERAL

Respondent

SOLICITOR UNDERTAKING AS TO CONFIDENTIAL DOCUMENTS

1. In paragraphs 2 –  9 of this undertaking:

   ‘Confidential Documents’ means the:

   (a)Execute Finance Memorandum dated 2 August 2016; and

   (b)Development Deed – Aratula between Tinca Pty Ltd as trustee and BP Australia Pty Ltd.

   ‘Proceeding’ means Land Court Appeal No. LVA713-17.

2. Not more than one copy of the Confidential Documents must be taken.

3. Except by leave of the Court, or for the purpose of briefing and consulting:

   (a)counsel briefed by the Respondent in this Proceeding; and

   (b)experts retained by the Respondent in this Proceeding,

   the Confidential Documents must be securely stored and not removed from the offices of the legal representatives of the Respondent. 

4. A copy of the Confidential Documents may be made and provided to the Respondent’s counsel and experts briefed in the Proceeding, for the sole purpose of briefing and consulting in respect of the Proceeding.

5. The further copies of the Confidential Documents must not be provided to any expert witness unless and until that person provides a confidentiality undertaking in terms similar to this confidentiality undertaking.

6. The Respondent’s counsel and the experts must be directed that upon the provision of the Confidential Documents, that the copies of the Confidential Documents must be securely stored and not removed from the offices of the Respondent’s counsel and experts.

7. Except by leave of the Court or with the written consent of the Appellant or the solicitor for the Appellant, the Confidential Documents, the copies thereof, their contents or any part of their contents will not be:

   (a)divulged to any person or entity other than:

   (i)solicitors acting for the Respondent or solicitors acting for the Appellant in these proceedings;

   (ii)counsel briefed by the Respondent or solicitors briefed by the Appellant in this Proceeding;

   (iii)experts briefed for the Respondent or experts briefed for the Appellant in this proceedings; or

   (iv)the Court in this Proceeding.

   (b)used for any purpose other than use in this Proceeding.

8. Before any use of the Confidential Documents contemplated by paragraph 7(a)(iv) takes place:

   (a)the parties must confer in an attempt to agree a protocol for such use of the Confidential Documents; and

   (b)failing agreement, the parties shall list the Proceeding for the purpose of determining the protocol for the use of the Confidential Documents.

9. Immediately following Judgment in the Proceeding or in the event of the earlier determination of the Proceeding, all copies of the Confidential Documents must be returned to the Appellant’s solicitors.

…………………………………………..

[#INSERT NAME#]

Dated……………………………..2018

“Annexure B”

IN THE LAND COURT
OF QUEENSLAND FILE NUMBER:        LVA713-17

BETWEEN

BP AUSTRALIA PTY LTD

Appellant

AND

VALUER-GENERAL

Respondent

EXPERT UNDERTAKING AS TO CONFIDENTIAL DOCUMENTS

1. In paragraph 2 of this undertaking:

   ‘Confidential Documents’ means the:

   (a)Execute Finance Memorandum dated 2 August 2016; and

   (b)Development Deed – Aratula between Tinca Pty Ltd as trustee and BP Australia Pty Ltd.

   ‘Proceeding’ means Land Court Appeal No. LVA713-17.

2. I undertake that I will not:

   (a)use the Confidential Documents or any of the information contained in the Confidential Documents for any purpose other than use in this Proceeding; or

   (b)make any copies, in whole or in part of the Confidential Documents, or divulge any information contained in the Documents to any person or entity other than a person who has signed a similar undertaking to this undertaking.  

   …………………………………………..

   [#INSERT NAME#]

   Dated……………………………..2018