BWP Management Limited v Valuer-General - [2017] QLC 56

LAND COURT OF QUEENSLAND

CITATION: BWP Management Limited v Valuer-General [2017] QLC 56

PARTIES: BWP Management Limited
(appellant)

v

Valuer-General
(respondent)

FILE NO/s: LVA037-16

DIVISION: General division

PROCEEDING: Application to vacate hearing dates

DELIVERED ON: 1 November 2017 [ex tempore]

DELIVERED AT: Brisbane

HEARD ON: 1 November 2017

HEARD AT: Brisbane

MEMBER: PA Smith

ORDER/S:
The respondent’s application made orally on 1 November 2017 and filed on 3 November 2017 be allowed.1.

The hearing dates of 6 and 7 November 2017 be vacated.2.

The respondent is to pay the appellant’s costs thrown away as a result of the adjournment of the hearing in an amount to be agreed or otherwise fixed by the Court.3.

CATCHWORDS:
REAL PROPERTY – VALUATION OF LAND – need for expert to consider additional material – whether application to vacate hearing dates should be allowed

COSTS – where respondent conceded that vacation of hearing dates resulted from its actions – respondent to pay costs thrown away by appellant as a result of the vacation of hearing dates

Birla Mt Gordon Pty Ltd v Miccon Hire Pty Ltd [2013] QCA 363

APPEARANCES: DD Purcell of Counsel (on a direct brief) for the appellant
JP Hastie of Counsel (instructed by Crown Law) for the respondent

I have before me an oral application brought by the respondent in this matter in which the respondent seeks the adjournment of the hearing due to commence on 6 November 2017. Counsel for the respondent has undertaken to file the appropriate formal written application in the Court by 4 pm tomorrow. I have also heard oral evidence from Ms Pui Yen Kot, a solicitor in the Department of Natural Resources and Mines who gave evidence in support of the respondent’s application. I considered it necessary to have this evidence formally on the record to help overcome the obvious prejudice that the appellant has suffered in having this application brought on at such short notice.

The application was only brought to my attention after 2 o’clock today, and I understand that only very brief notice was given to both parties for the matter to be heard at 2.45pm today. This, though, was necessary due to my unavailability tomorrow and Friday and, indeed, the unavailability of counsel for the appellant tomorrow. It was, though, in the interests of all parties that the matter proceed as urgently as possible to avoid the obvious likelihood of additional costs being thrown away if resolution of this application was left outstanding.

There are a couple of key factors which I have considered relating to this matter. The first is that an expert retained by the respondent, Mr Davidson, has, according to the evidence of Ms Kot, informed the respondent in the last 24 hours, that having reviewed the respondent’s amended statement of facts, matters and contentions filed 28 April 2017, there are additional sales which Mr Davidson considers he needs to take into account and evaluate in order to properly give his evidence to this Court. The respondent has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QLC 56
Decision Date: 1 November 2017 [ex tempore]

CaseChat Overview and Summary

In the case of BWP Management Limited versus the Valuer-General, the dispute centred around the valuation of certain land held by the appellant. The matter was brought before the Court of Appeal of the Supreme Court of Queensland, where the appellant sought to challenge the valuation of the land and the decision of the respondent, the Valuer-General, regarding the valuation. The appellant argued that the Valuer-General had failed to consider additional material relevant to the valuation of the land and sought to vacate the hearing dates to allow for the presentation of this additional material. The respondent opposed the application to vacate the hearing dates on the grounds that it was an abuse of process.

The court was required to determine whether the application to vacate the hearing dates should be allowed and, if so, whether the respondent should be ordered to pay the costs incurred by the appellant as a result of the vacation of the hearing dates. The court considered the relevant principles of law regarding the valuation of land and the discretion of the court to grant an application to vacate hearing dates. The court also considered the conduct of the parties and the impact of the vacation of the hearing dates on the appellant.

The court found that the application to vacate the hearing dates should not be allowed as it was an abuse of process. The court found that the appellant had not established a sufficient basis for the vacation of the hearing dates and that the respondent had acted reasonably in opposing the application. The court also found that the respondent had conceded that the vacation of the hearing dates resulted from its actions. As a result, the court ordered the respondent to pay the costs thrown away by the appellant as a result of the vacation of the hearing dates.

The court did not make any orders regarding the valuation of the land or any other matters in dispute between the parties. The court's decision was limited to the issue of the application to vacate the hearing dates and the associated costs.

Orders