Gay v Chief Executive, Department of Natural Resources
[1998] QLC 111
•17 April 1998
|
BRISBANE
17 April 1998
Re: Appeal against Annual Valuation -
Valuation of Land Act 1944 -
Valuation Roll No 20028/07100 -
Local Government: Redland Shire
(AV96-304).
Christine R Gay
v.
Chief Executive, Department of Natural Resources(HEARING ON COSTS)
Consequent upon hearing of judgment in the above matter on 30 May 1997, the matter of costs was determined on 5 September 1997, in which each party was directed to bear their own costs. Subsequent to that decision on costs, an application for rehearing was considered, and a decision to rehear the matter of costs was found on 16 December 1997. That approval was to re-open the hearing to hear evidence only in respect of the following questions under section 43 of the Land Act 1962:
(1)Were there any further communications between the parties between the commercial confidential agreement (1990) and the current objection and appeal process (AV96-304)?
(2)Why did the appellant not seek an objection conference?
(3)Bearing in mind the history of the protracted and costly nature of the matter, why did the respondent not seek an objection conference?
(4)What communications occurred between the parties between the request for a post-appeal conference (about June 1996) and the conference on 6 December 1996?
(5)What understanding was there by both parties about the grounds of appeal following the conference on 6 December 1996?
(6)Why did the respondent agree to reduce the valuation under section 68 on 14 April 1997?
(7)What costs were incurred by the parties in preparing for the objection conference?
(8)What costs were incurred associated solely with the appeal?
The thrust of that rehearing is to seek to determine whether either party may have acted in an arbitrary or capricious manner in not disclosing or considering fully all the relevant information prior to the appeal to this Court. If there was any such action by either party, then what impact did such action have upon the eventual costs incurred by the opposing parties.
Mr D Fahl appeared on behalf of the appellant, and Mr R Paterson appeared on behalf of the respondent.
The Facts:
(1)Was there any further communication between the parties between the commercial confidential agreement (1990) and the current objection and appeal process (AV96-304)?
Mr Fahl provided evidence of the details of the "Heads of Agreement" entered into by the parties in July 1990. Copies of the letters agreeing to the conditions were tendered for the appellant (30 July 1990), and the respondent (31 July 1990). That "Heads of Agreement" occurred following the part-heard hearing of the former appeal (V90-13) and a further conference between the parties. The agreement set out the specific details of the development of the property which formed the basis of the understanding by the parties, and included in the appellant's letter a section 8 which noted:
"8.This agreement shall be adhered to by the parties in the appeal lodged in the Land Court on 26 June 1990 and in respect of the March 1989 valuation or any substitution, alteration or amendment to the 31 March 1989 valuation in respect of Mr and Mrs Gay's Birkdale property, subject to the rights of the parties to adduce further evidence in matters not agreed herein. "
The letter of the respondent included a section 8 which said:
"8.This agreement will be adhered to by the parties in the appeal lodged in the registry of the Land Court on 26 June 1990 and any subsequent appeals lodged in the future in respect of Mr and Mrs Gay's Birkdale property subject to the rights of the parties to adduce further evidence in matters not agreed herein. "
The slight variation in the wording would seem to place some greater emphasis by the respondent upon "any subsequent appeals lodged in the future", while the appellant's wording appears to have been more restrictive in its intentions as dealing specifically with the 1989 valuation.
However, section 10 of the appellant's letter confirmed that "For the purpose of any valuations issued after March 1990 or any substitution, alteration or amendment to the 31 March 1990 valuation", the details of the understanding were to be used.
Clearly the parties both agreed at that time to abide by the details of their agreement, although there was some slight difference in wording between the parties. In hindsight, even that slight difference in emphasis, may already have started to sow the seeds of less than perfect communication between the parties. By consent, the value was determined by the Court at $255,000 for the valuation at 31 March 1988.
The respondent advises that the valuation at 31 March 1989 was also the subject of an increase and, following a further conference between the parties, was amended in line with the former agreement. The respondent further confirmed that an unimproved value of $590,000 was reduced prior to an objection conference to $514,000 in line with the agreement, and subsequent to the objection conference, the value was further reduced to $490,000.
While those changes to the valuation at 31 March 1989 appeared to maintain the former agreement, already there was developing two interpretations of that outcome. The appellant saw that outcome as reflecting that her "objection" was disallowed, and the Chief Executive was not adhering to the arrangement, by applying CPI increases. The respondent saw that the valuation was in line with the agreement, and "no new evidence as to quantities or costs of improvements was produced by the owners".
In the valuation of 31 March 1990, a similar increase, objection conference, and subsequent reduction to $490,000, occurred as for the previous year. There was no revaluation in 1991, and the valuation at 31 March 1992, resulted in a similar increase, conference offered, and provided, and a reduction in the valuation to $465,000. The appellant argues that the main reason for her objection was "the slump in property values" and the effects of the recession. She saw no reason to further discuss the improvements at that time. A copy of her objection letter of 3 February 1993 confirms those observations.
At the time of the next valuation at 30 June 1993, an objection was lodged against the determination of $465,000, but no conference was held, and the objection was disallowed. Following the valuation of $490,000 at 1 January 1995, there was no objection from the appellant, who noted that while she considered the value to be too high, she considered it not unreasonable, and decided not to object at that time. The next valuation at 1 January 1996, at $775,000 is the matter before the Court.
I refer back to the "Heads of Agreement" in 1990, which subsequently was seen to be the basic understanding of the parties in respect of the value of the improvements upon the land. I note that both parties accepted in section 7 that "principles of valuation as to the improved site value not otherwise agreed by the parties". This acceptance by the parties appears to provide that, while the broad thrust of the determination of the improvements was agreed, there remained the residual right of the parties to reconsider how those improvements could be valued.
In the matter of the application of consumer price index (CPI) fluctuations for the valuation of 31 March 1990, I note that the appellant spelt out her understanding of how any such changes would be applied. The respondent in his letter of 31 July 1990 accepted the contents of the appellant's letter of 30 July 1990, and his accompanying "Heads of Agreement" makes specific mention of the matter of CPI changes in "future valuations by the Valuer-General" as specified in sections 1(c), 2(d), 3(c), 4(c) and 5(c).
I note also that since 1989 there has been a history of objections (6) and conferences (4) prior to this matter coming before this Court. While Mrs Gay did not specifically request an objection conference in her letter of 3 February 1993, she had nevertheless been granted a conference to discuss her objection.
Why did the appellant not seek a conference?
Mrs Gay acknowledges that she did not specifically request a conference in respect of the valuation at 1 January 1996. However she claims that she did request a "review of the decision", and, in view of the history of the former expensive litigation which had preceded the current valuation, she believes that her further concerns should have elicited some enquiry from the Chief Executive as to the nature of her complaint.
She also draws attention to the substance of her objection at that time which indicated that she believed "the valuation did not reflect the undeveloped nature of the land". By her understanding that should have alerted the respondent that she was now exercising her reserved right to challenge the principle of the valuation of the improvements.
The respondent can offer no comment as to why Mrs Gay did not seek a conference, but noted that the option to request a conference was clearly noted on the "notice of objection" form. As Mrs Gay had been afforded the benefit of a conference on four previous occasions, the respondent appeared to have concluded that Mrs Gay saw no need for a further conference, in view of the existing "Heads of Agreement" on the major issues.
(3)Bearing in mind the history of the protracted and costly nature of the matter, why did the respondent not seek an objection conference?
The respondent claims that there was no indication in the notice of objection to indicate that there was any movement away from the items and quantities of improvements contained in the 1990 agreement. Mr Dewar claims that the general grounds of objection were non-specific, and did not indicate a different approach to the valuation. Mr Dewar felt that, as the developer and vendor of the "Power" sale, the appellant would be aware of the reason for the substantial rise in the valuation, and hence why there had been no request for a further conference.
(4)What communications occurred between the parties between the request for a post-appeal conference (about June 1996) and the conference on 6 December 1996?
The chronology of communications is as follows:
•Decision on objection issued on 11 June 1996.
•Notice of appeal lodged with the Court on 5 July 1996.
•Copy of notice of appeal lodged with the Chief Executive on 9 July 1996.
•Covering letter from Mrs Gay's solicitors seeking a meeting to try and resolve the matter in order to avoid unnecessary costs on 8 July 1996.
•Further letter from Mrs Gay's solicitors on 3 September 1996, noting Mr Dewar's absence overseas until November 1996, and seeking a conference on Mr Dewar's return.
•A conference was held on 6 December 1996.
It was also noted that Mr Dewar left Australia on 4 September 1996, returning to duty on 28 October 1996. Mr Dewar was not aware of the request for a conference until his return to duty.
Mrs Gay claims that Mr Ganim, a partner in the legal firm representing her, had a conversation in November 1996 with Mr Dewar during which Mr Dewar was reported as saying he saw little benefit in having a conference due to the advanced stage of the matter and the current difference in the respective valuation estimates. While Mrs Gay understood that Mr Dewar had sought discussions with Mr Power over the valuation, she was surprised that he had not sought further discussions with her.
What understanding was there by both parties about the grounds of appeal following the conference on 6 December 1996?
It has been found that in considering matters raised at an objection conference, the Act specifically forbids the cross-examination of proceedings of any "without prejudice" conference undertaken as part of an objection process. Section 53(4) states:
"53.(4) Any such conference shall be without prejudice, and in any appeal under sections 55 to 68 evidence of the proceedings at such conference shall not be given by or on behalf of the chief executive or the owner concerned, nor shall the chief executive or such owner, or any witness on behalf of either of them, be cross-examined on such proceedings. "
In reversing a decision on costs awarded by the learned Member, the Land Appeal Court found in Chief Executive, Department of Lands v. Juris Towers Pty Ltd (V93-5), 15 QLCR 273, at page 275:
"We note in the reasons given by the learned Member for his decision that the solicitors for the appellant submitted that it was argued by the owner at an objection conference held on 8 December 1992 that additional foundation costs were involved in the construction of the resort building. It would appear from the passage of the learned Member's reasonings on page 3 that he gave this matter significant attention and drew certain conclusions from it. On our understanding of the directions contained in the legislation, namely sub-section (4) of section 53, the Member was precluded from giving consideration as a matter of law to such issues, either directly or by implication. "
The Land Appeal Court also noted the findings of Bowden v. The Valuer-General (1980-81) 7 QLCR 138, where the Land Appeal Court observed at page 149:
"Subsequently there was an objection conference where information was supplied by the appellant. This information is, of course, on a `without prejudice' basis and its nature cannot be revealed to us. "
While this Court has no desire to seek the details of the "without prejudice" conference between the parties on 6 December 1996, a key issue is whether both parties had a similar understanding of what the grounds of the appeal were about.
Mrs Gay understands that the conference sought to establish:(i)the comparison between the "Power" sale and the subject; and
(ii)the cost of improvements to be deducted from the improved value of the land. Mrs Gay based that understanding on her understanding that Mr Dewar had incorrectly applied the "Power" sale and had not made sufficient allowance for the cost of improvements. This she argues is supported by her ground of appeal No 10 which states - "The cost of development of the block were not taken into account or not sufficiently taken into account in arriving at such determination".
Mr Dewar however argues that at the conference, there was no indication that the appellant intended to move away from the former 1990 "Heads of Agreement".
From the record it is also noted that on 20 December 1996, the matter was set down for hearing of the appeal on 13 February 1997. Following enquiries by Mr Fahl to the Court on 9 January 1997, it was learnt that a period of 2½ hours had been set down for the hearing. By agreement with the Court and the respondent, the hearing on 13 February 1997, took the form of a directions hearing at which certain exchanges of issues in fact and law were agreed by the parties. An examination of the understanding of the parties following that "directions" hearing was discussed in my decision on the application for costs on 5 September 1997 (pages 9 and 10).
Following the conference on 6 December 1996, Mrs Gay's solicitors sought clarification from the Chief Executive of the outcome (letter 20 December 1996). By letter of 6 January 1997, the Chief Executive confirmed that the valuation would stand. The background to that decision was noted as:"The main point of contention with the approach taken by the Departmental valuer was that land with potential for development was valued the same as that with similar zoning that was developed for single unit residential purposes.
This was disputed by your client and her husband in relation to the main sale relied on by Mr Dewar as a comparison to the subject lot.
In review, what cannot be disputed is that smaller lots (around 2,000 square metres) that are zoned "Comprehensive Development" and have potential to be developed with multi-dwellings, have been developed with a single unit dwelling on each. This is the case when comparing the sales in Commodore Drive, Birkdale, of Lots 396 on RP 801828 and 397 on RP 229064 (now developed with single unit residences) to Lot 391 on RP 801829 (now developed with eight units).
It is considered that there was no information forthcoming which would alter the approach adopted for the calculation of the valuation and so the amount of the valuation remains unaltered."
Clearly the thrust of the Chief Executive's letter relates to the comparison of the subject with other lands that had potential for development. There was no indication that the Chief Executive believed that there had been any discussion about the costs of development of the subject.
Following that advice on 10 January 1997, Mrs Gay's solicitors advised that she was now engaging the services of Mr Rodney Brett, a valuer, in relation to the appeal. Mrs Gay also engaged Mr R Goakes, a consulting engineer, in respect of the development of the subject. Mr Dewar engaged Mr N Case, a consulting engineer, to confirm whether the rates of engineering costs had changed since 1990.
At or about 9 January 1997, Mrs Gay instructed her solicitor to seek a longer period of two days for the hearing in view of her intention to call further in-depth evidence in respect of the development costs of both the subject and the "Power" sale. She had concluded at that time "that the cost of improvements allowed by Mr Dewar were insufficient and, even though they were based upon the previous agreement reached between the parties, they did not reflect the proper value of the improvements as at the relevant date". In the end the matter was heard on 28 April 1997, and extended for 2½ days, including an inspection.
Following the "directions" hearing, the exchange of documents was arranged for no later than 14 April 1997. Because of delays in receiving the engineer's report (Mr Goakes), the documents were not exchanged until 22 April 1997. The Chief Executive argues that it was not until that date that he was aware that the "Heads of Agreement" was being abandoned, although Mr Fahl had indicated such in his letter to the Chief Executive of 16 April 1997. Mr Dewar claims that such a faxed copy was not located on the Departmental files.
From a study of the record of costs applied by Mr Fahl and Mr Dewar, initial contact would appear to have occurred with consultants as follows:•Mr R Brett (valuer) - 6 January 1997
• Peachey Constructions (developer) - 4 February 1997
• Mr R Goakes (engineer) - 27 February 1997•Dredge & Bell Planning Pty Ltd - 7 March 1997
• Mr N Case (engineer) - March 1997.
Why did the respondent agree to reduce the valuation under section 68 on 14 April 1997?
Mr Dewar advised that the reduction in the valuation from $775,000 to $750,000 had nothing to do with any discussions between the parties, and related entirely to costs of the concrete strip at the top of the revetment wall. That had been agreed in the 1990 "Heads of Agreement" and overlooked in the determination at $775,000. Those costs were subsequently also allowed for by the Court in its decision of 30 May 1997.
What costs were incurred by the parties in preparing for the objection conference?
The appellant noted costs of $1,560, while the respondent noted that he had incurred "in house" legal and valuation costs in relation to the conference held on 6 December 1996.
What costs were incurred associated solely with the appeal?
(i)The appellant claims total costs of:
Fees to solicitors (Hopgood & Ganim) $7,548.00
Fees to counsel (R Jones) $5,300.00
Fees to valuer (R Brett) $6,935.00
Fees to engineer (R Goakes) $2,100.00
Other charges $ 631.90
TOTAL $22,514.90
Less
Charges associated with the objection $1,560.00
TOTAL $20,954.90
(ii) The respondent claims total costs of:
Fees to engineer (Mr N Case) $ 3,165.00Unspecified "in house" legal and valuation
staff costs (note in this regard it is noted that
legal costs involve both counsel (Mr Paterson) and
other legal staff (Mr O'Connor).
Decision:
In considering the matter of costs in my earlier decision of 5 September 1997, I canvassed fully the findings of the key precedents in this area, noting particularly the similarities and differences between those findings and the current matter. In the end I came out in support of each party meeting their own costs, noting in particular that there was no reason to find that the evidence of any of the respondent witnesses was either arbitrary or capricious.
In the application for re-hearing on costs, the appellant was able to convince the Court that it should re-open the matter on costs, because of the possibility that the Court had misunderstood the evidence in part, and had made "an error as to how the application of the principles on costs should be applied". The appellant's case now rests entirely upon the basis that Mr Dewar had in fact demonstrated an arbitrary approach to the matter, which eventually led to the appellant incurring unnecessary costs in order to ventilate her concerns and seek proper redress. It is claimed that the lack of prudence by Mr Dewar was occasioned by his failing to seek good communication with Mrs Gay in order to ascertain her concerns.
Mr Fahl argues that Mr Dewar has demonstrated an arbitrary approach on three occasions:(i)At the time of the objection in June 1996, by only adopting a "general" approach to the objection, rather than seeking a more in-depth understanding of Mrs Gay's concerns, in view of the extensive history of former objections.
(ii)At the time of the appeal in July 1996, when there was some reference in her grounds of appeal to the costs of development not being properly considered (Ground No 10).
(iii)At the time of Mrs Gay's solicitors signalling at the directions hearing on 13 February 1997, that a formally planned 2½ hours of hearing was to be extended out to two days on the advice that the appellant would be seeking fresh evidence of an engineering nature.
In each matter Mr Dewar argues that it was not unusual for him to receive many objections from people who displayed displeasure and unhappiness with the valuations. He maintained that, in spite of the former history of the subject, there was nothing specific to raise his concern that Mrs Gay was about to abandon the previous agreement. He claims he took a very serious approach to the objection, and the appeal, and he had no knowledge of the new approach to the valuation being proposed by Mrs Gay. Mr Fahl agrees that the current matter could perhaps be seen as "a special case in the circumstances, being one in which both sides quite correctly can learn in terms of communication issues".
In seeking to understand whether Mr Dewar has acted in an "arbitrary or capricious" manner, I turn to the meaning of the words as defined in "Stroud's Judicial Dictionary" 4th Edition, Sweet and Maxwell. I note that "to act arbitrarily" is defined as to act without a reasonable cause; while "to act capriciously" is to act without any apparent reason (page 174). I note also that the word "reasonable" has in law been found to have the prima facie meaning of being "reasonable in regard to those circumstances of which a person, called on to act reasonably, knows or ought to know". ("Strouds" page 2258).
In extending those definitions to the current matter, the questions I ask myself are:(i)Did Mr Dewar act in a reasonable manner when, knowing the history of the property, he decided not to have an objection conference, or seek further information from the appellant?
(ii)Being an experienced valuer in these matters, was it reasonable for Mr Dewar to assume, knowing the experience of Mrs Gay in respect of the history of the subject that, if she intended to abandon the former agreement, she would have provided some special indication of her intentions?
(iii)Bearing in mind the protracted nature of the former objections and the appeal in respect of the subject, did both parties exercise a commitment to full and frank communication on the matter?
(iv)Was there a reasonable cause for Mr Dewar to make the decision in respect of the objection, in the absence of any further conference with Mrs Gay?
(v)Was it reasonable for Mrs Gay not to specifically raise her challenge to the improvements, knowing the former details of the agreement, and that Mr Dewar may still rely on a continuation of that agreement?
(i)Did Mr Dewar act in a responsible manner when deciding not to hold an objection conference?
I note that Mr Dewar is required to make a decision in respect of several thousand valuations for each fresh valuation determined. A large percentage of those (about 10%) are subject to objections. He argues that many of those objections are from objectors who display certain levels of displeasure, and who are unhappy with the valuations. It would therefore not be unusual for him to only arrange an objection conference where it has been requested by the objector or where he has evidence that the Department may not be fully aware that there are other circumstances.
Where there was already a written agreement between the parties, while not binding upon either party, there would be a tendency to assume that the agreement was to be maintained.
In the context of his knowledge of the agreement, and the property, and as he knew that the appellant was a well-informed person in these matters, I believe it would not be unreasonable for him to have assumed that the outstanding issue between the parties was merely one of interpretation of the valuation from the sales evidence, perhaps best left to the discretion of the Court. I feel the answer to this question is "Yes".
(ii)Was it reasonable for Mr Dewar to assume that Mrs Gay would provide some specific indication of her intention to abandon the agreement?
The history of the subject indicates that, while there had been an ongoing difference of opinion about the quantum of the valuations (6 objections), the history of dialogue between the parties had been on a professional basis. The tenor of the 1990 "Heads of Agreement" was one of courtesy, co-operation, and helpful assistance from the Departmental officers (including Mr Dewar). There was no indication that Mrs Gay intended to proceed in anything less than the same forthright manner which she had pursued in the earlier objections.
On the evidence, while he may appear to have assumed a conclusion different from Mrs Gay's intentions about the quantum of the improvements, it was a reasonable conclusion at the time by Mr Dewar. The answer to that question is "Yes".
Did both parties exercise a commitment to full and frank communication on the matter?
I believe that this is really the key issue in this matter. Had there been a fuller and more frank passage of information between the parties at the time of the objection, it is possible that there may have been some closer agreement between them. In the end, however, the Court found in certain matters which are quite likely to have continued in dispute between the parties. The thrust of the 1990 agreement would have had to be overturned in certain respects, and the intervention of the Court may still have been eventually required. From the discussion of the level of communication between the parties, I have already noted that certain minor variations in emphasis had already germinated even in the 1990 agreement. While Mrs Gay had not specifically sought an objection conference in 1993, she had nevertheless been offered one. If she had intentions of abandoning the former agreement in 1996, it would have been prudent of her to seek a further conference at that time.
Both parties have drawn my attention to the findings of WH Bowden v. The Valuer-General (1980-81) 7 QLCR 138, which was discussed in some length in my decision on costs of 5 September 1997 (page 3 - 5), and also in my decision on the application of this re-hearing of costs on 16 December 1997 (page 5). The importance of a free-flow of information between the parties was also noted in Bowden at page 148. I can only repeat that, in my opinion, both parties have responsibilities in ensuring that the other party fully understands their concerns and opinions. How else would they hope to resolve the matter?
In the current matter I believe that there was something lacking in the communication from both parties in respect of a full and frank conveying about their respective arguments. The answer to that question is "No" for either party.
(iv)Did Mr Dewar have a reasonable cause for making his decision on the objection without a further conference?
Mr Dewar believed that he had solid evidence of comparable sales to support his valuation, he believed he had an agreement on the development costs of the improvements, and he had not had a request for a further conference from Mrs Gay. His understanding of previous dealings between the parties had always been on a frank, forthright basis, and for this reason he believed that any matter of the difference in the "site value" of the subject may be best decided by the Court.
On the evidence the answer to that question is "Yes".
(v)Did Mrs Gay reasonably signal her intention to reopen the matter of the development improvements?
I understand from the evidence that Mrs Gay believes that she had indicated her disquiet with the treatment of the development improvements in her "notice of objection". I also understand that the advice of Ms Chapple at the directions hearing of 13 February 1997, was such as to provide a warning to the respondent that there was further evidence to be given about the "improvements on the land subsequent that `Heads of Agreement'".
On the balance of the evidence of both parties, I find that while the "notice of objection" in April 1996, did in fact draw some reference to the development of improvements, its context was such as to draw the mind to conclude that it was of a general nature in comparing the subject with the surrounding parcels. While it may have been the intention of Mrs Gay to signal her future intentions to re-open the matter of the development costs of improvements, it is likely that Mr Dewar would not have understood that intention at that time.
In the advice from Ms Chapple on 13 February 1997, the intentions were quite clear and should have been noted by Mr Dewar. However, that advice was then only 10 weeks prior to the actual hearing of the matter. Bearing in mind that a "without prejudice" conference had already been held between the parties on 6 December 1996, Mr Dewar would appear to have been faced with a dilemma. Presumably there was nothing mentioned at the conference to indicate an abandonment of the agreement, or if there was, he saw no need to rethink his engineering advice. However, he had sought further engineering advice from Mr Case in March 1997, which suggests he sought to reinforce the previous agreement in view of Ms Chapple's advice of 13 February 1997.
Whatever the impact of Ms Chapple's advice, it is likely that Mr Dewar would have continued to prepare his case for the appeal hearing on 28 April 1997. The exchange of statements eventually confirmed the new strategy in respect of the improvements, but I suggest there would have been no turning back by Mr Dewar from the eventual hearing of the matter. The vigour and commitment of the defence support that conclusion.
The answer to this question is "Yes". Mrs Gay did signal her intentions to abandon the agreement, albeit in an oblique manner at the objection, but quite specifically at the directions hearing. However in the run of the case it is unlikely, at that late stage, to have had any real influence in changing the course of events.
Conclusions:
On examining the further evidence I find there is little to influence my earlier decision to have each party accept responsibility for its own costs. On the actions of both Mr Dewar and Mrs Gay, I find that they have both acted reasonably and without any evidence of arbitrariness. Indeed, because of the complexity of the matter, there is some affinity with the findings of the Land Appeal Court in Hymix Industries Pty Ltd v. Valuer-General (V89-415)(1990-91) 13 QLCR 173, where the Land Appeal Court found at page 186:
"In the subject case it could not be held that either party has approached the valuation in an arbitrary, frivolous or vexatious manner or has completely disregarded principles which given certain facts, should be applied. The position is more to the contrary. The evidence has demonstrated that some complexity was involved and in our opinion there still remains some doubt as to the correct value of this land. In the circumstances we are of the opinion that no order should be made. "
However, on the matter of free and frank communication between the parties I find that there was room for improvement by both parties.
In considering the matter of costs, I find that the appellant has tendered amounts to the value of $20,954.90 for external advice and services. The respondent has tendered an amount to the value of $3,165 for external advice and services, but has matched the appellant in respect of "in-house" legal and valuation services. On balance there would appear to be little difference in the overall total costs incurred by both parties, bearing in mind the competitive nature of Government services and industry in the current era.
While I have no details as to the "in-house" costs of the respondent, I am faced with two ways of sharing the costs, where I find that both parties have contributed to the lack of communication, and its impact upon the extensive nature of litigating the matter to its conclusion. One is to seek to apportion half of each cost to the other, the other is to repeat my earlier conclusion that each party should bear its own costs.
Accordingly, I make no order as to costs.
Member of the Land Court
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