Fitzpatrick Investments Pty Ltd v Valuer General of New South Wales

[2010] NSWLEC 188

Land and Environment Court

of New South Wales

CITATION:

Fitzpatrick Investments Pty Ltd v Valuer General of New South Wales [2010] NSWLEC 188

PARTIES:

APPLICANT:
Fitzpatrick Investments Pty Ltd

RESPONDENT:
Valuer General of New South Wales

FILE NUMBER(S):

30722; 30728; 30729; 30730 of 2010

CORAM:

Biscoe J

KEY ISSUES:

VALUATION OF LAND :- leave to appeal against valuation determination after the statutory period for making an appeal has expired.

LEGISLATION CITED:

Valuation of Land Act 1916, s 38

CASES CITED:

Jassls Pty Ltd v Valuer General [2006] NSWLEC 59

DATES OF HEARING:

28 September 2010

EX TEMPORE JUDGMENT DATE:

28 September 2010

LEGAL REPRESENTATIVES:

APPLICANT:
Dr S Berveling, barrister
SOLICITORS
Gwynne Thompson

RESPONDENT:
Mr B Row
SOLICITORS
Crown Solicitor's Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

28 September 2010

30722 of 2010
30728 of 2010
30729 of 2010
30730 of 2010

FITZPATRICK INVESTMENTS PTY LTD v VALUER-GENERAL OF NEW SOUTH WALES

EX TEMPORE JUDGMENT

1 HIS HONOUR: In each of these four related matters, the applicant, Fitzpatrick Investments Pty Ltd, moves the Court by notice of motion filed on 14 September 2010 to allow an appeal under s 38(2) of the Valuation of Land Act 1916 after the 60 day period for making an appeal provided in s 38(1) has expired.

2 The respondent, the Valuer-General, neither consents to nor opposes the application.

3 The four main considerations affecting the exercise of discretion under s 38(2) are the length of the delay, the reason for the delay, the extent of any prejudice and whether there is an arguable case: Jassls Pty Ltd v Valuer General [2006] NSWLEC 59 at [21] – [29] (Preston CJ).

4 As for the length of delay, the notice of appeal should have been filed on 21 August 2010, some 24 days before the notices of motion were filed.

5 As for the reasons for the delay, they are twofold. First, a letter was written by Fitzpatrick’s property consultant to the Land and Property Management Authority, as representative of the respondent, on 25 June 2010 stating that there were a number of issues in the valuation report provided by a contract valuer for the respondent which could not be used in the assessment process and therefore they were seeking a review of the market land value of the property. For reasons which have not been explained by the respondent, there was no reply to that letter. The second reason is that there is an interlinking between the parcels of land the subject of the four notices of motion before me, and a number of other nearby parcels the subject of other appeals against valuations that are pending in this Court. Two such other valuations were dated 17 August 2010, only a few days before expiry of the period for making an appeal in relation to the matters the subject of the notices of motion before me.

6 There appears to be no prejudice to the Valuer-General. Indeed, the fact that there is an interlinking between the parcels of land the subject of the various proceedings tends to confirm that there is no prejudice.

7 As for an arguable case, it is to be contended by Fitzpatrick, as I understand it, that specific aspects of the various parcels were not fully or properly taken into account.

8 Having considered these matters, I am satisfied that this is an appropriate case to allow the applicant in each matter to appeal after the 60 day period.

9 The Court makes the following orders in each matter:

1. Pursuant to s 38(2) of the Valuation of Land Act 1916 the applicant is allowed to appeal after the 60 day period for making the appeal provided in s 38(1).
2. The time for filing an appeal be extended to 14 September 2010 and the application Class 3 purported to have been lodged on 14 September 2010 be now treated as having instituted the appeal in these proceedings.
3. No order as to the costs of the applicant’s notice of motion filed on 14 September 2010.
4. The proceedings be listed for a directions hearing on 8 October 2010 before the Registrar.