Fivex Pty Ltd v Valuer-General - [2013] NSWLEC 114

Land and Environment Court

New South Wales

Medium Neutral Citation: Fivex Pty Ltd v Valuer-General [2013] NSWLEC 114
Hearing dates: 22, 23 July 2013
Decision date: 23 July 2013
Jurisdiction: Class 3
Before: Craig J
Decision:
1. Stand over the applicant's notice of motion filed on 14 June 2013 for final orders to be made on Friday 9 August 2013.
2. Direct that the respondent identify in writing and provide to the applicant by 5.00pm on Friday 26 July 2013 the tenancy documents that it seeks to have produced for the purpose of preparing its valuation evidence.
3. Direct that the applicant provide the documents so requested for inspection by 5.00pm on Wednesday 7 August 2013.
4. In the event of there being dispute as to the documents required to be produced, any notice of motion directed to that issue, must be filed and made returnable on Friday 9 August 2013.
5. By consent, the notice of motion filed by the applicant on 23 April 2013 is dismissed.
6. By consent order that the applicant pay the respondent's costs of the notice of motion filed on 23 April 2013, agreed in the sum of $600.

Catchwords: PROCEDURE - motion to set aside subpoena - whether documents requested for a legitimate forensic purpose - whether it is likely that the documents the subject of the subpoena would materially assist on an identified issue - whether documents sought are relevant to valuation method proposed and to assessment of comparable sales - reasonable basis beyond speculation that documents will materially assist on the issue of valuation - subpoena has the hallmarks of a fishing expedition - subpoena not upheld in its present form - documents to be identified and provided
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Valuation of Land Act 1916
Cases Cited: Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110
Commonwealth Custodial Services Limited v Valuer-General [2007] NSWCA 365; 156 LGERA 186
ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
Toohey's Ltd v Valuer-General [1924] 25 SR (NSW) 75
Category: Procedural and other rulings
Parties: Fivex Pty Limited (Applicant)
Valuer-General (Respondent)
Representation: I Hemmings (Applicant)
M R M Carpenter (Respondent)
Susan Hill & Associates Lawyers (Applicant)
IV Knight, Crown Solicitor (Respondent)

File Number(s): 31101, 31102 and 31103 of 2012

EX TEMPORE Judgment

Fivex Pty Limited (Fivex) has appealed to this Court pursuant to s 37 of the Valuation of Land Act 1916. Fivex is dissatisfied with the determination by the Valuer-General of its objection to the land value assessed for land known as 376-382 New South Head Road, Double Bay (the property) as at base dates of 1 July in each of the years 2009, 2010 and 2011. The appeals have not yet been fixed for hearing.

There are presently two notices of motion before me for determination. The first was filed on 23 April 2013 and seeks a…

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: [2013] NSWLEC 114
Decision Date: 23 July 2013

CaseChat Overview and Summary

Fivex Pty Ltd filed a notice of motion in the Supreme Court of New South Wales, seeking an order that the Valuer-General provide certain tenancy documents for the purpose of preparing its valuation evidence. The Valuer-General opposed the application and filed a cross-notice of motion seeking an order that Fivex produce certain documents for inspection. The primary issue for the court was whether the tenancy documents that the Valuer-General sought to have produced were relevant and necessary for the purpose of preparing its valuation evidence. The court found that the documents were necessary and relevant and ordered the Valuer-General to provide them to Fivex by a specified date. The court also ordered Fivex to provide the documents that the Valuer-General requested for inspection by a specified date. In the event of a dispute as to the documents required to be produced, any notice of motion directed to that issue must be filed and made returnable on a specified date. The court dismissed the notice of motion filed by Fivex on 23 April 2013 and ordered that Fivex pay the Valuer-General's costs of that notice of motion, agreed in the sum of $600.

Orders

Orders of the court

1. Stand over the applicant's notice of motion filed on 14 June 2013 for final orders to be made on Friday 9 August 2013.

2. Direct that the respondent identify in writing and provide to the applicant by 5.00pm on Friday 26 July 2013 the tenancy documents that it seeks to have produced for the purpose of preparing its valuation evidence.

3. Direct that the applicant provide the documents so requested for inspection by 5.00pm on Wednesday 7 August 2013.

4. In the event of there being dispute as to the documents required to be produced, any notice of motion directed to that issue, must be filed and made returnable on Friday 9 August 2013.

5. By consent, the notice of motion filed by the applicant on 23 April 2013 is dismissed.

6. By consent order that the applicant pay the respondent's costs of the notice of motion filed on 23 April 2013, agreed in the sum of $600.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Fivex Pty Ltd v Valuer-General [2013] NSWLEC 114
Hearing dates:	22, 23 July 2013
Decision date:	23 July 2013
Jurisdiction:	Class 3
Before:	Craig J
Decision:	1. Stand over the applicant's notice of motion filed on 14 June 2013 for final orders to be made on Friday 9 August 2013. 2. Direct that the respondent identify in writing and provide to the applicant by 5.00pm on Friday 26 July 2013 the tenancy documents that it seeks to have produced for the purpose of preparing its valuation evidence. 3. Direct that the applicant provide the documents so requested for inspection by 5.00pm on Wednesday 7 August 2013. 4. In the event of there being dispute as to the documents required to be produced, any notice of motion directed to that issue, must be filed and made returnable on Friday 9 August 2013. 5. By consent, the notice of motion filed by the applicant on 23 April 2013 is dismissed. 6. By consent order that the applicant pay the respondent's costs of the notice of motion filed on 23 April 2013, agreed in the sum of $600.
Catchwords:	PROCEDURE - motion to set aside subpoena - whether documents requested for a legitimate forensic purpose - whether it is likely that the documents the subject of the subpoena would materially assist on an identified issue - whether documents sought are relevant to valuation method proposed and to assessment of comparable sales - reasonable basis beyond speculation that documents will materially assist on the issue of valuation - subpoena has the hallmarks of a fishing expedition - subpoena not upheld in its present form - documents to be identified and provided
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Valuation of Land Act 1916
Cases Cited:	Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110 Commonwealth Custodial Services Limited v Valuer-General [2007] NSWCA 365; 156 LGERA 186 ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 Toohey's Ltd v Valuer-General [1924] 25 SR (NSW) 75
Category:	Procedural and other rulings
Parties:	Fivex Pty Limited (Applicant) Valuer-General (Respondent)
Representation:	I Hemmings (Applicant) M R M Carpenter (Respondent) Susan Hill & Associates Lawyers (Applicant) IV Knight, Crown Solicitor (Respondent)
File Number(s):	31101, 31102 and 31103 of 2012