Department of Natural Resources and Mines v NE Christie (NSW) Pty Limited
[2004] QLAC 91
•20 October 2004
LAND APPEAL COURT OF QUEENSLAND
CITATION: Department of Natural Resources and Mines v NE Christie (NSW) Pty Limited [2004] QLAC 0091 PARTIES: Chief Executive, Department of Natural Resources and Mines
(appellant)v. NE Christie (NSW) Pty Limited
(respondent)FILE NO: LAC2004/0127 DIVISION: Land Appeal Court of Queensland PROCEEDING: An appeal from a decision of the Land Court ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 20 October 2004 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBERS: Philippides J
Mr JJ Trickett, President
Mrs CAC MacDonaldORDER: The appeal is allowed. CATCHWORDS: PRACTICE – APPEAL – Amendment of appeal – Appeal against annual valuation – Change of ownership of land after valuation notice – Objection and appeal under Valuation of Land Act 1944 – Objection not lodged in name of new owner but in name of former owner – Objection not made by owner pursuant to s 42 of the Act – Appeal against valuation also brought in name of former owner – Whether defect in name of appellant remediable under Uniform Civil Procedure Rules 1999 – Whether defect going to jurisdiction – Whether mistake as to appellant’s name one as to identity or as to entitlement to lodge objection APPEARANCES: Mr TW Quinn (instructed by the Department of Natural Resources and Mines) for the appellant
Mr KW Rose (of Gadens Lawyers) for the respondent
This is an appeal from a decision of the learned member of the Land Court delivered on 28 July 2004, permitting the name of the current owner of certain land, Trust Company of Australia Limited (“Trust Company”), to be exchanged for the name of the former owner, N.E. Christie (NSW) Pty Limited (“Christie”), in whose name an appeal was brought in respect of a valuation of land.
Background Facts
On 26 February 2002, an annual valuation was issued pursuant to s 37 of the Valuation of Land Act 1994 (“the Act”) for $4,000,000 in respect of certain property at 300 Adelaide Street, Brisbane to Christie, the date of the valuation being 1 October 2001. The matter proceeded before the learned member and before this Court on the basis that there was no evidence to suggest that the owner, at the time the annual valuation was made and the notice was issued, was other than Christie.
On 14 March 2002, the property was transferred from Christie to Trust Company. On 22 March 2002, a Notice of Objection against the valuation was lodged by Mr Jackson, a director of M3 Properties on instructions from Macquarie Bank Limited, the agent for Trust Company. It specified the owner as Christie and was accompanied by a covering letter from Mr Jackson stating that the objection was “lodged on behalf of the owner N.E. Christie (NSW) Pty Limited”.
On 30 June 2002, the Chief Executive’s decision on the objection was notified by a letter addressed to Christie as owner, advising it that the valuation had been reduced to $3,800,000. On 26 July 2002, an appeal to the Land Court against the Chief Executive’s decision on the objection was lodged by Mr Jackson, the notice of appeal again specifying the name of the owner as “Christie”. On 21 August 2003, the solicitors for Trust Company wrote to the Court advising that:
“3.James Rogers of Macquarie Bank Limited in his capacity as agent and asset manager of Trust Company of Australia Limited gave instructions to M3 Property to object to the annual valuation on behalf of Trust Company of Australia Limited.
4.M3 Property, subsequently lodged on behalf of Trust Company of Australia Limited but inadvertently in the name of the former property owner, N.E. Christie (NSW) Pty Limited the following documents:
(a)Form 58 Notice of Objection to Valuation on 22 March 2002; and
(b)Form 59 Notice of Appeal to the Land Court Against a Determination of the Chief Executive on 26 July 2002.
5.Further correspondence ensued between M3 Property and the Land Court indicating N.E. Christie (NSW) Pty Limited as the Appellant.
The current property owner, Trust Company of Australia Limited, wishes to carry on the appeal in its name. Would you please make the appropriate amendments to indicate Trust Company of Australia Limited as the relevant Appellant and let us know if you require any further information in this regard.”
On 29 June 2004, the Trust Company as “appellant” brought an application seeking various orders in respect of the hearing of the appeal and an order that:
“The current owner of the land at 300 Adelaide Street, Brisbane, Trust Company of Australia Limited … be substituted and treated for all relevant purposes as the appellant in these proceedings in lieu of the originally described owners, [Christie] …”
On 28 July 2004, the learned Member ordered that the name of Trust Company be exchanged for that of Christie as the appellant in the valuation appeal.
The Relevant Provisions of the Act
Annual valuations, such as that the subject of appeal in this case, are dealt with in Part 4 of the Act. The chief executive is required to make an annual valuation of the land (s 37(1)) and to give each owner of the land a notice of the annual valuation (s 41A(1)). “Owner” of land is defined, inter alia, as meaning the person who is entitled to receive the rent for the land, but includes a registered proprietor of freehold land (s 7).
Pursuant to s 42(1) of the Act, an owner who is dissatisfied with the valuation of the owner’s land may object within 42 days after the annual valuation notice is given to the owner. By s 43 of the Act, the chief executive is required to consider the objection made under s 42 of the Act and to issue to the objector a notice of the decision thereon.
An appeal lies under s 45 of the Act against a valuation made by the chief executive. The right of appeal is conferred on “an owner who has objected pursuant to section 42”. By virtue of s 45(9) of the Act, various remedial provisions in section 57 to 68 and s 70 of the Act apply in relation to a notice of appeal, which fails to comply with the requirements concerning appeals specified in s 45.
Both s 42 of the Act, which confers the entitlement to object to the valuation and
s 45 of the Act, which confers the entitlement to appeal against a valuation must be read in conjunction with s 46. That section deals with the situation where there has been a change of ownership of the land and specifies the entitlements of the new owner to object and appeal or to carry on an objection or appeal. Sections 46 (1) and (2) of the Act relevantly provide:
“(1) Where a change in the ownership of land occurs after the relevant date of notice, the new owner may, subject to this section, object against that valuation and, if the new owner is dissatisfied with the decision of the chief executive upon that objection, appeal against that valuation.
(2) If an objection or appeal as aforesaid was made or instituted by the former owner prior to the change in ownership then the new owner shall have the right to carry on in the new owner's own name that objection or appeal but the new owner shall not be entitled in that case to himself or herself make or institute a fresh objection or, as the case may be, appeal.”
Who was entitled to object and appeal?
It is apparent on the evidence that at 22 March 2002, “the owner” for the purposes of making the objection and lodging the appeal pursuant to the Act was Trust Company. That follows from the fact that the change of ownership occurred after “the relevant date of the notice” (26 February 2002), when Trust Company was registered as owner of the land on 14 March 2002. There was no evidence presented to suggest that Christie continued as “owner” thereafter pursuant to any arrangement whereby it was entitled to receive the rent for the land.
It was therefore upon the new owner, Trust Company, that the entitlement to object against the valuation was conferred by s 46(1), although the valuation notice had been issued to the former owner. Likewise, since no objection or appeal was lodged by Christie prior to the change of ownership, there could be no question of the new owner having an entitlement, pursuant to s 46(2), to carry on an objection or appeal in the name of the former owner. Thus, the objection and the appeal were required to be made in the name of Trust Company as the relevant owner.
As the learned member observed, had the mistake in the objection notice been detected earlier, Trust Company may have been able to avail itself of s 44 of the Act. That section deals with the situation where a person, who is entitled to make a timely objection about a valuation, has failed to do so. It provides, inter alia, that, if such a person brings an objection within 1 year after being given the valuation notice, the chief executive is required to accept the late objection, if satisfied that the failure to make a timely objection happened through no fault of that person.
It is apparent from the statutory scheme outlined above that an objection to an annual valuation may only be made by the “owner” as specified by the Act. There are no provisions in the Act permitting defects in the objection to be rectified. Furthermore, the only provision permitting an objection to be made otherwise than in accordance with s 42 is s 44 of the Act, allowing for late objections by a person who was entitled to make a timely objection. It is also clear that, while the legislation contains some remedial provisions, permitting certain defects in the appeal process to be remedied, it remains an essential prerequisite to a right of appeal under s 45(1) of the Act, that the person seeking to appeal is “an owner who has objected pursuant to s 42.” In the present case, however, no objection was made pursuant to s 42 by “the owner” as that term is defined in the Act.
Can the deficiency in the objection and the appeal be remedied?
On behalf of Trust Company it was contended that rules 69(2) and 376 of the Uniform Civil Procedure Rules (“the UCPR”) were available to remedy the defect in the name in which the appeal was lodged. Those rules apply in the Land Court as a result of rule 4 of the Land Court Rules 2000 and have the status of subordinate legislation (s 21(5) Land Court Act 2000). The Chief Executive on the other hand contended that the objection was a nullity and that, as a consequence of the absence of a valid objection pursuant to s 42, there was no right to institute an appeal pursuant to s 45(1). It was argued, relying on decisions such as Estate of John Staunton (deceased) v The Valuer-General (1989) 12 QLCR 326, that these deficiencies went to the Court’s jurisdiction to entertain the appeal proceedings. We accept that submission. We do not consider that those Rules can be applied in the present case so as to enlarge the statutory jurisdiction of the Court (see Woolfe v Snipe (1932) 48 CLR 677 at 680 - 681). Further, while it was contended on behalf of Trust Company that it did not seek an amendment correcting the name of the objector, but merely one correcting the name of the appellant in the valuation appeal, an amendment altering the name of the appellant in those proceedings alone would be of no utility. It could not cure the underlying lack of jurisdiction arising from the failure by the relevant owner to lodge an objection pursuant to s 42 of the Act. That is a sufficient basis to dispose of this appeal.
However, as a matter of completeness, we add that, in any event, we do not consider that the onus resting on Trust Company to show that the relevant mistake made was one coming within r 376(2) of the UCPR has been discharged. The material relied upon by Trust Company is contained in paragraph 3 of Mr Hinckfuss’ affidavit, which states:
“3.From my instructions and documents in my possession and discussions with Mr Jackson, I verily believe that:
(a)Macquarie Bank Limited in its capacity as agent and asset manager of Trust Company of Australia Limited gave instructions to Grant Jackson to object to the annual valuation on behalf of Trust Company of Australia Limited as owner of 300 Adelaide Street, Brisbane;
(b)On 22 March 2002, Mr Jackson, a director of M3 Property (formerly known as LandMark White) lodged a formal Notice of Objection on behalf of the owner of the property, then inadvertently referred by him to be N.E. Christie (NSW) Pty Limited (the party to whom the Notice of Valuation had been issued) under cover of a letter of that date. …”
In Evans Construction Co Ltd v Charrington & Co Ltd [1983] 1 QB 810, Donaldson LJ in explaining a rule similar to r 376(2) said at 821:
“In applying Ord.20, r.5(3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances.”
That decision was approved by the High Court in the leading decision of Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231. In the present case, it is not apparent from the material, whether the “inadvertence” by Mr Jackson in using the name “Christie” as that of the owner was a mistake as to the identity of the owner of the property at the relevant time, or a mistake as to which party, given that there had been a change in ownership since the date of the valuation, was entitled to make the objection. The rule would apply to the former mistake, but would be of no avail in relation to the latter. Given the sparsity of the evidence as to why the mistake was made, it is a matter of speculation as to which category the mistake applies. Accordingly, it would not be an appropriate case for the exercise of the discretion under r 376.
In the circumstances, the appeal from the decision of 28 July 2004 is allowed. The decision of 28 July 2004 is set aside. We shall hear submissions as to further orders and as to costs.
Order
The appeal is allowed.
PHILIPPIDES J
JUSTICE OF THE SUPREME COURT
JJ TRICKETT
PRESIDENT OF THE LAND COURT
CAC MacDONALD
MEMBER OF THE LAND COURT
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