Fatseas Superannuation Fund 2 v Chief Executive, Department of Natural Resources and Mines

[2001] QLC 42

[2001] QLC 42

 

LAND COURT TOOWOOMBA 28 May 2001

Re:Appeal against a valuation Valuation of Land Act 1944 Property ID No: 1017820 Local Government: Toowoomba (AV01-89)

Fatseas Superannuation Fund 2 v.

Chief Executive, Department of Natural Resources and Mines

D E C I S I O N

The appeal in this matter was received by the Registry on 14 February 2001. The postmark of the envelope shows a date of 13 February 2001 showing that the appeal was posted at South Brisbane on that date. The appeal and the envelope in which it was received, together, constitute Exhibit 1 in these proceedings.

The Property Details Report issued by the Department of Natural Resources on 14 February 2001 (Exhibit 4 in these proceedings) shows that the valuation was made on 1 October 1998, that it was issued on 29 March 1999 and that it took effect from 30 June 1999.

Section 50 of the Valuation of Land Act 1944 (“the Act”) as it stood prior to the amendments of Act No. 34 of 2000 which commenced, for all relevant purposes, on 1 October 2000 provides as follows:

“Notice of Valuation

50(1) Notice of valuation shall be issued to the owner in the approved form, and, save in the case of a notice issued in respect of a reduction in valuation referred to in section 69, such notice shall also state that such owner may object against the valuation.

(2)     Subject to subsection (3), notice of valuation may be issued at any time after the valuation is made.

(3)     If all land in an area is valued, a notice of valuation must be issued not earlier than the notification of the regulation fixing a day under section 19, and not later than 3 months before the day fixed.

(4)     The failure to duly issue notice of valuation not less than 3 months before the date fixed, in accordance with the requirements of subsection (3), shall not affect the validity of the valuation of all lands in the area concerned or the date of its coming into force.”

Section 52 of the Act, as it stood at that time, provided that an owner who was dissatisfied with the valuation made by the chief executive under this Act could, within 60 days after the date of issue of the notice of valuation (which date of issue shall be stated in such notice), post to or lodge with the chief executive an objection in writing against the valuation.

Section 53 then places on the chief executive an obligation to consider objections.

What is crucial for present purposes is that Section 55(1) provides that an owner who has duly objected to the chief executive against a valuation made by the chief executive may, if dissatisfied with the decision of the chief executive upon the objection, appeal to the Land Court.

It is clear from Section 55(1) and the sections which follow that the right of an owner of land to appeal to this Court is dependent upon a valid objection having been lodged in the first place and the owner’s dissatisfaction with the chief executive upon that objection.

The circumstances as outlined to the Court by Mrs Fatseas, who appears on behalf of the appellant in this case, is that the appellant purchased the land on 14 December 2000. Upon purchasing the land, Mrs Fatseas realised that the unimproved valuation was much higher than she expected or thought was appropriate. In those circumstances, she took steps to issue the Notice of Appeal to which I have already referred and which is Exhibit 1.

I am informed by Mr Tannock, who appears for the Department that no objection has ever been lodged in this matter.  Mrs Fatseas does not seek to contradict Mr Tannock’s statement in this regard.

It, therefore, seems to be the case that the owner of the land did not, at any time, acquire a right to appeal to this Court because no objection or valid objection was ever lodged against the chief executive’s original valuation. It does not matter that the appellant is a new purchaser. It would not matter whether it was a new owner or an old owner or whether no sale had taken place at all. Where no valid objection has been lodged, there is no right to appeal.

Mr Tannock also raises an agreement that the appeal is out of time.

In one sense, the appeal is not out of time. Section 55(2) of the Act (as it stood at the relevant time) provides that an appeal shall not lie unless it is instituted within 60 days after the date of issue to the owner concerned by the chief executive of notice of the chief executive’s decision upon the objection. Since there has been no

objection, there has been no decision by the chief executive of his or her decision upon the objection. Therefore the 60 days has not commenced and cannot have expired.

However, because of the failure to object in the first place, no right of appeal can lie and it does not assist the appellant in this case that that 60 days has not expired.

I have dealt with this matter on the basis that the amendments which came into effect on 1 October 2000 do not have retrospective effect. This has been considered by myself in Pavex Construction Pty Ltd v Chief Executive, Department of Natural Resources (AV99-1261). I remain of the view expressed in that case that the amendments to the Act do not have retrospective effect.

Accordingly, I find that the Court does not have jurisdiction to hear the appeal of the owner in this case.

SJ KEIM MEMBER OF THE LAND COURT