Future Space Pty Limited v Ku-ring-gai Council - [2009] NSWLEC 15

Land and Environment Court

of New South Wales

CITATION: J & M Mir & Others v Valuer General [2009] NSWLEC 15

PARTIES:
FIRST APPLICANT
John and Marie Mir
SECOND APPLICANT
Mir Bros (Hollywood Creations) Pty Ltd
THIRD APPLICANT
Mirco Finance Pty Ltd
FOURTH APPLICANT
Mir Bros Trading Co Pty Ltd
FIFTH APPLICANT
Mir Bros High Rise Apartments Pty Ltd
SIXTH APPLICANT
Mir Bros Industries Pty Ltd
RESPONDENT
Valuer General

FILE NUMBER(S): 30129 of 2007

CORAM: Sheahan J

KEY ISSUES: PRACTICE AND PROCEDURE :- review of decision of Registrar; leave to adduce additional evidence; vacation of hearing dates

CASES CITED: Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Tomko v Palasty (No.2) [2007] NSWCA 369

DATES OF HEARING: 12 February 2009

DATE OF JUDGMENT:
16 February 2009

LEGAL REPRESENTATIVES:
APPLICANTS
Mr P Tomasetti, SC
SOLICITORS
Storey & Gough
RESPONDENT
Mr J Maston
SOLICITORS
Crown Solicitors Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

16 February 2009

30129 of 2007 J & M Mir & Others v Valuer General
JUDGMENT

1 His Honour: The Applicants in this Class 3 valuation appeal seek leave to adduce further evidence.

2 If leave is granted, the hearing fixed for 23-26 February will need to be vacated, and a new timetable set. Those dates were set on 10 October 2008 when the then Registrar appears to have expressed concern at how long the matter had been in the court’s list. The initiating application was filed on 16 February 2007, and there was unsuccessful s 34 conferencing during June 2008.

3 The Acting Registrar refused the relevant application for leave on 6 February 2009, and the Applicants have sought a review of her decision, by Notice of Motion filed on 9 February 2009. The Respondent is opposed to the grant of leave.

4 The Applicant relies on the principles enunciated by the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. Both parties rely on the Court of Appeal decision in Tomko v Palasty (No.2) [2007] NSWCA 369 (“Tomko”). I heard the Notice of Motion late on Thursday afternoon 12 February, and reserved my decision until Monday 16 February at 9.30am.

5 The Notice of Motion seeks a review “pursuant to Rule 51.59 of the Uniform Civil Procedure Rules 2005”, but the correct rule in this case is 49.19, and I have considered the application as if the correct rule was cited in the Notice of Motion. It is not an appeal. Rule 49.19 says:

If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise as the court thinks fit

6 The Applicants ask that leave be granted for them to “file, serve and rely…

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: [2009] NSWLEC 15
Decision Date: 16 February 2009

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Future Space Pty Limited v Ku-ring-gai Council involved a dispute concerning the procedural aspects of a valuation appeal. The applicants, Future Space Pty Limited, sought leave to adduce additional evidence in their appeal against the valuation decisions of the Ku-ring-gai Council. The central issue before the court was whether the applicants should be permitted to present further evidence at the hearing, which would necessitate the vacating of the previously set hearing dates. The court needed to determine whether the applicants' request for leave to adduce additional evidence was justified and whether such a request, if granted, would cause undue prejudice to the respondent.

The court considered the principles established by the High Court in Queensland v J L Holdings Pty Ltd and the Court of Appeal decision in Tomko v Palasty. The applicants argued that they were entitled to present their additional evidence in the interests of justice, while the respondent opposed the motion on the grounds of potential prejudice and the insufficiency of the existing evidence. The court examined the history of the proceedings, the timeliness of the applicants' request, and the nature of the additional evidence proposed. The court acknowledged the importance of the proposed evidence but also weighed the potential delay and additional costs it might cause.

Ultimately, the court decided to exercise its discretion in favour of the applicants. It found that the applicants' delay in obtaining the additional evidence did not necessarily preclude the exercise of judicial discretion in their favour, especially considering that they had taken steps to rectify the situation once they had competent legal representation. The court held that the interests of justice required the applicants to be allowed to present their additional evidence. Consequently, the court discharged the Registrar's decision, granted the applicants leave to file the additional evidence, vacated the previously set hearing dates, and ordered the applicants to pay the respondent's costs associated with the motions and any additional costs incurred as a result of the court's orders. The matter was returned to the Registrar for further directions and the setting of new hearing dates.

Orders