GIUSIDA PTY LIMITED & COMMISSIONER FOR ACT REVENUE(Appeal)
[2014] ACAT 50
•31 July 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GIUSIDA PTY LIMITED & COMMISSIONER FOR ACT REVENUE
(Appeal) [2014] ACAT 50
AA 39 of 2013
Catchwords: APPEAL - ADMINISTRATIVE REVIEW - redetermination of unimproved value (UV) of land – ambit of appeal jurisdiction – whether the tribunal’s conclusions were open to it – questions of fact and law – effect of possibility of contamination and remediation – appellant accorded fair hearing in relation to hearsay evidence –open to original tribunal not to accept expert opinions not supported by evidence – no irrelevant consideration taken into account – treatment of adjoining land owner influence - appeal tribunal does not revisit discretionary merits of competing arguments or opinions of expert witnesses
Legislation: ACT Civil and Administrative Tribunal Act 2008, ss 26 and 68
Rates Act 2004, ss 6, 10, 11 and 11A
Taxation Administration Act 1999, ss 101 and 108A
Cases:Challenger Property Asset Management Pty Ltd v Stonnington City Council [2011] VSC 184
Coutts v Close [2014] FCA 19
Drake v Minister for Immigration and Ethnic Affairs
(1979) 2 ALD 60
English Exporters (London) Ltd v Eldonwell Ltd
[1973] Ch. 415Federal Commissioner of Taxation v St Helen’s Farm (ACT) Pty Ltd (1981) 145 CLR 336
Giusida & Commissioner for ACT Revenue [2013] ACAT 59
ISPT Pty Ltd & Commissioner for ACT Revenue
[2013] ACAT 43Junstamp Pty Ltd and Ors & Commissioner for ACT Revenue [2013] ACAT 50
Makita (Australia) Pty Ltd v Spowles (2001) 52 NSWLR 705
Mangubat & Commissioner for Social Housing in the ACT [2013] ACAT 6Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
R v War Pensions Entitlement Appeals Tribunal; ex parte Bott (1933) 50 CLR 228
Re De Brett Investments Pty Ltd v Australian Fisheries Management Authority (2004) 82 ALD 163
Re Grove and Minister for Capital Territory (1979) 2 ALD 128Spencer v Commonwealth (1907) 5 CLR 418
The Medical Practitioner & The ACT Medical Board
[2010] ACAT 63
Thornthwaite and Commissioner for Social Housing in the ACT [2012] ACAT 11
Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156
Warren v Coombes (1979) 142 CLR 531
Texts/Papers: Cairns, BC, Australian Civil Procedure (
7th Edition, Lawbook
Co. 2007)
Hyam, Alan A, The Law Affecting Valuation of Land
In Australia (Federation Press)Lexis Nexis, Administrative Law Service
Appeal Tribunal: Mr W.G. Stefaniak AM - Appeal President
Ms E. Symons - Presidential Member
Date of Orders: 31 July 2014
Date of Reasons for Decision: 31 July 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
AA 13/39; AT 12/19
BETWEEN: GIUSIDA PTY LIMITED
Appellant
AND: COMMISSIONER FOR ACT REVENUE
Respondent
APPEAL TRIBUNAL: Mr W.G. Stefaniak AM - Appeal President
Ms E. Symons - Presidential Member
DATE: 31 July 2014
ORDER
The Tribunal Orders that:
The original Tribunal’s decision dated 10 September 2013 in AT 12/19 is confirmed.
………………………………..
Mr W.G. Stefaniak AM
Appeal President
for and on behalf of the Appeal Tribunal
REASONS FOR DECISION
Background
At all material times Giusida Pty Limited (the appellant) was the Crown Lessee in respect of Block 11 Section 28 Braddon in the Australian Capital Territory (the subject land). The subject land is located within the CZ3 zone of the City Centre Code of the Territory Plan (2008)
On 18 December 2009, the appellant surrendered its then Crown Lease and was granted a new Crown Lease under which it was permitted to use the subject land for the purposes permitted under the prior lease and, additionally, for ‘residential use PROVIDED THAT the site is decontaminated to the satisfaction of the Territory.’
The Commissioner for ACT Revenue (the Commissioner or the respondent) determined the unimproved value (UV) of the subject land pursuant to section 10 (Annual determinations) of the Rates Act 2004 (RA) as at 1 January 2009 and 1 January 2010 in the sum of $1,379,000.00.
After 1 January 2011 but before 16 September 2011, the respondent determined the UV of the subject land pursuant to section 10 of the RA as at 1 January 2011 in the sum of $6,700,000.00 and pursuant to section 11A (Redetermination – change of circumstances) of the RA redetermined the UV of the subject land as at 1 January 2009 and 1 January 2010 in the sum of $6,700,000.00.
On 16 September 2011 the respondent redetermined the UV of the subject land pursuant to section 11 (Redetermination – error) of the RA as at 1 January 2009 in the sum of $4,350,000.00 and as at 1 January 2010 and 1 January 2011 in the sum of $5,000,000.00 (the redetermination).
The appellant unsuccessfully objected to the redetermination and, on 30 March 2012, applied to the ACT Civil and Administrative Tribunal (the Tribunal), pursuant to section 108A of the Taxation Administrative Act 1999 (the TAA), for review of the decision of the respondent to disallow the appellant’s objection to the redetermination (the reviewable decision).
On 10 September 2013, the original tribunal ordered (the original decision[1]) pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 that the reviewable decision should be set aside and remitted to the Commissioner for reconsideration in accordance with the direction determining the UV as at 1 January 2009 - $4,225,600; at 1 January 2010 - $4,882,440 and at 1 January 2011 - $4,882,440. The respondent was directed to obtain an informed opinion on the cost of removal of the sand filled underground fuel storage tank (UST) on the subject land and of making good, and to deduct this sum from the above UVs.
The Appeal
[1]Giusida & Commissioner for ACT Revenue [2013] ACAT 59 (The Tribunal reference: AT 12/19)
On 8 October 2013, the appellant lodged an application for appeal from the original decision which set out the following eleven questions of fact or law:
1. Did the Tribunal act in accordance with section 6 of the Rates Act 2006 (sic) and the principle in Spencer v Commonwealth when it:
a. held that a deduction for the cost of remediation could be properly made only when actual contamination had been shown to exist on the subject land, and
b. ignored the effect on value of the possibility of contamination?
2. Did the Tribunal fail to accord the applicant a fair hearing when it relied on hearsay evidence as to the payment of a premium of 5% in relation to Sale 1, the evidence emerging for the first time in cross examination?
3. Was the Tribunal entitled to ignore the opinion of Mr Green as an experienced valuer that a 10% deduction for adjoining owner influence in relation to Sale 1 was proper on the basis that he had not provided sales evidence in support?
4. Did the Tribunal take into account an irrelevant consideration when it noted the evidence given in the Junstamp case that 5% was an appropriate deduction for adjoining owner influence in relation to Sale 1?
5. Was the finding of the Tribunal that the appropriate deduction for adjoining owner influence in relation to Sale 1 was 5% a finding against the weight of the evidence?
6. Did the Tribunal act rationally in holding that it would have been appropriate to take into account the change of use charge paid by purchasers when analysing comparable sales evidence?
7. Was the Tribunal entitled to ignore the opinion of Mr Green as an experienced valuer that a 2% deduction for delays in decontaminating the site was proper on the basis that he had not provided sales evidence in support?
8. Was the Tribunal entitled to ignore the opinion of Mr Green as an experienced valuer that a 10% deduction for difficulties encountered in obtaining finance was proper on the basis that he had not provided specific evidence in support?
9. Was the Tribunal entitled to ignore the evidence of Mr Green as to his personal experience of the practice of financiers when considering lending in relation to sites affected by contamination?
10. Was the Tribunal entitled to ignore the opinion of Mr Green as an experienced valuer that a deduction for the negative influence of an adjoining service station was proper on the basis that he had not provided sales evidence in support?
11. Was the approach of the Tribunal in arriving at the unimproved value of the subject lease, for 2009 on the one hand and 2010 and 2011 on the other hand, consistent with the principles applicable to the analysis of comparable sales evidence?
The appellant stated, in the application for appeal, that:
The appeal should proceed because the original decision has substantial financial implications for the applicant ratepayer, and because several of the challenged findings involve matters of principle which are of general application.
At a directions hearing held on 15 November 2013, it was ordered that the appeal proceed by way of a rehearing on the existing evidence. In other words the appeal was to be dealt with pursuant to section 82(b) of the ACAT Act. Directions were made in relation to the parties filing their material and the matter was set down for hearing on 17 and 18 March 2014, which was subsequently changed to 25 and 26 March 2014.
Mr Arthur appeared for the appellant and Mr McCarthy appeared for the respondent at the hearing. At the conclusion of the hearing, the Tribunal reserved the decision.
Consideration
In the appellant’s outline of submissions filed on 17 March 2014, the appellant did not press question 6, thereby reducing the questions of fact or law for consideration to ten. The respondent asks the Tribunal to reject each of the appeal grounds because either the original tribunal did not act as alleged or the original tribunal’s response to the questions now raised was open to it on the evidence: contending that there was no “obviously manifest error.” [2]
[2] Outline of Respondent’s Submissions at [9]
However, at the commencement of the hearing, the ambit of the tribunal’s appellate jurisdiction and the tribunal’s function when conducting a review under section 82(b) of the ACAT Act were the subject of both parties’ submissions. The Tribunal will consider this before turning to the questions of fact or law raised by the appellant.
The Tribunal’s appellate jurisdiction and functions
Mr Arthur, in particular, drew attention to the general powers of the appeal tribunal to draw inferences of fact in Rule 21 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No. 2). He referred the Tribunal to the High Court decision in Warren v Coombes [3] (Warren v Coombes) and to the text - Australian Civil Procedure by BC Cairns[4] which referred to the decision in Warren v Coombes and stated:
The majority of the High Court re-examined the authorities in Warren v Coombes at 537-551. They held that an appellate court is required to decide the case on the facts as well as the law. They affirmed that an appellate court is in as good a position as the trial judge to draw inferences from facts. In drawing inferences an appeal court should give proper weight and respect to the judge’s conclusions. But once the appeal court reaches its own conclusion it must give effect to it.[5] Neither should an appellate court uphold an incorrect decision simply because it believes the trial judge’s inferences were open on the evidence. Upholding such a decision perpetuates an error amounting to a denial of the appeal process. The appeal court must decide the case for itself, including the facts as well as the law.[6] While the law confers a right of appeal the right should be a reality, not an illusion. If the trial judge’s decision is wrong it should be corrected.[7]
[3] (1979) 142 CLR 531
[4] 7th Edition, Lawbook Co. 2007 at page 540
[5]Warren v Coombes at page 551
[6]Warren v Coombes at page 552
[7]Warren v Coombes at page 553
Mr Arthur acknowledged the earlier tribunal appeal decisions in Mangubat & Commissioner for Social Housing in the ACT [8] (Mangubat), ISPT Pty Ltd & Commissioner for ACT Revenue [9](ISPT) and Thornthwaite and Commissioner for Social Housing in the ACT[10] (Thornthwaite) which stated the principles of the ambit of the tribunal’s appeal jurisdiction and its function when considering a review under section 82(b) of the ACAT Act. He urged the Tribunal to mesh the principles in Warren v Coombes “with the principles that have previously been enunciated by the Tribunal”.[11]
[8] [2013] ACAT 6 at [35] – [36]
[9] [2013] ACAT 43 at [12 – [14]
[10] [2012] ACAT 11 at [54] – [56]
[11] Transcript, 25 March 2014, page 7, lines 40 - 42
Mr McCarthy submitted[12] that the Tribunal should not interfere with the original tribunal’s findings unless there is some manifestly obvious error; if the decision was open to the tribunal on the evidence before it, the Appeal Tribunal should not “tinker”, rather it should “leave it as it is”[13].
[12] Outline of Respondent’s submissions at [6]
[13]Thornthwaite and Commissioner for Social Housing in the ACT [2012] ACAT 11 at [55]
In relation to valuation appeals Mr McCarthy referred the Tribunal to the following passage in Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority[14] where Handley JA said:
Australian courts, and in particular the High Court, have frequently referred to the following statement by Lord Hobhouse in Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373 at 391:
‘… in all valuations, judicial or other, there must be room for inferences and inclinations of opinion which, being more or less conjectural, are difficult to reduce to exact reasoning or to explain to others. Everyone who has gone through the process is aware of this lack of demonstrative proof in his own mind, and knows that every expert witness called before him has had his own set of conjectures, of more or less weight according to his experience and personal sagacity. In such an inquiry as the present, relating to subjects abounding with uncertainties and on which there is little experience, there is more than ordinary room for such guesswork; and it would be very unfair to require an exact exposition of reasons for the conclusions arrived at.’
[14] (1991) 24 NSWLR 156 at 182-183
Lord Hobhouse’s statement was quoted with approval by Croft J in Challenger Property Asset Management Pty Ltd v Stonnington City Council[15].
[15] [2011] VSC 184 at [19]
Mr Arthur cautioned the Tribunal in relation to the use of that passage stating that it was a “series of thoughts which is directed to a very specific and limited part of the valuation process. That is to say where it is not possible, either because there is so little evidence from which to work or because …. although there may be a great deal of evidence with which to work, it’s difficult to explain precisely why you reach a particular point on the spectrum rather than another point on the spectrum of possible opinions….. By far the bigger part of the valuation process involves, in fact demands, that there be a rational process undertaken.”[16]
[16] Transcript, 25 March 2014, page 8 lines 20 - 31
Mr McCarthy also referred the Tribunal to the following comments about the tribunal’s appellate jurisdiction in The Medical Practitioner & The ACT Medical Board[17] (The Medical Practitioner):
33. Where an appellate jurisdiction is exercised in respect of decisions involving discretionary judgment there is:
a strong presumption in favour of the correctness of the decision
appealed from, and that decision should therefore be affirmed unless…clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist when there has been an error which consists of acting upon a wrong principle, or giving weight to erroneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.34.The Appellant’s task is to convince the Appeal Tribunal that the
Original Tribunal made such an error as to allow its order to be varied or reversed. It is not enough that the members of the Appeal Tribunal would themselves have imposed a different occupational order, or that they regard the occupational order as overly severe.[17] [2010] ACAT 63
Mr McCarthy submitted that ‘when it comes to valuation cases it is difficult to think of a topic more the subject of questions of discretion, judgment, degree and doing the best you can -….. than virtually any other topic of this tribunal’s jurisdiction…’[18].
Conclusion
[18] Transcript, 26 March 2013, page 101 lines 12 - 15
The Tribunal sees no reason to depart from the earlier tribunal statements in relation to the ambit of its appeal jurisdiction in Mangubat. It is necessary for an appellant to identify a question of fact or law to be corrected on appeal as a gateway issue.
The Tribunal’s functions, when conducting a review under section 82(b) of the ACAT Act, have been clearly set out by earlier tribunals in ISPT and Thornthwaite. These functions can be summarised as:
(a)There should be some manifestly obvious error made by the original tribunal, which if not rectified will have a substantive adverse bearing and not be in the interests of justice; and
(b)If the original tribunal order is fundamentally sound, i.e. that decision was open to that tribunal on the facts before it, the appeal tribunal should not ‘tinker’ with it; it should leave it as it is.
When the tribunal’s appellate jurisdiction is exercised in respect of decisions involving discretionary judgment the Tribunal adopts the statements in The Medical Practitioner set out in paragraph 19 above.
The issue
The issue is whether, on the evidence before it, were the original tribunal’s conclusions with respect to the ten questions that are now before the Appeal Tribunal reasonably open to it, regardless of whether, if this Tribunal was sitting as the original tribunal, it would have come to a different view? In other words, was the original tribunal doing the best it could with what it had before it?
Questions of Fact or Law
Question 1Did the Tribunal act in accordance with section 6 of the Rates Act 2006 (sic) and the principle in Spencer v Commonwealth when it:
a.held that a deduction for the cost of remediation could be properly be made only when actual contamination had been shown to exist on the subject land, and
b.ignored the effect on value of the possibility of contamination?
Rates are calculated in the ACT based on the unimproved value of land. The meaning of ‘unimproved value’ is found in section 6 of the RA, which states:
6 (1) The unimproved value of a parcel of land held under a lease from the Commonwealth is the capital amount that might be expected to have been offered on the relevant date for the lease of the parcel, assuming that—
(a) the only improvements on or to the parcel were the improvements (if any) by way of clearing, filling, grading, draining, levelling or excavating—
(i) if the Territory or Commonwealth had, before the parcel became rateable as a separate parcel, granted a development lease of land that included the parcel—made by the lessee under that lease or by the Territory or Commonwealth, or the cost of which was met by that lessee or by the Territory or Commonwealth; or
(ii) in any other case—made by the Territory or Commonwealth or the cost of which was met by the Territory or Commonwealth; and
(b) the circumstances that existed on the prescribed date also existed on the relevant date; and
(c) on the relevant date, the lease had an unexpired term of 99 years; and
(d) a nominal rent was payable under the lease for the 99 year term.
Note Relevant date is defined in the dictionary.
(2) The unimproved value of a parcel of land held in fee simple is the capital amount that might be expected to have been offered for the parcel at a genuine sale on the relevant date on the reasonable terms and conditions that a genuine seller would require, assuming that no improvements had been made on or to the parcel.
(3) In this section:
"prescribed date", for a parcel of land, means—
(a) for a determination of the unimproved value of the parcel—the date the parcel became rateable; or
(b) for an annual redetermination of the unimproved value of the parcel—the date the redetermination applies; or
(c) for a redetermination of the unimproved value of the parcel under section 11 (Redetermination—error) or section 11A (Redetermination—change of circumstances)—the date the redetermination begins to apply to the parcel.
The principle in Spencer v Commonwealth[19], is enunciated in Chief Justice Griffith’s decision:
...In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring "What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?" It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together.
Appellant’s contentions
[19] (1907) 5 CLR 418 at 432
Relying on the principle in Spencer v Commonwealth, the appellant contended that a purchaser is to be assumed to be cognizant with all the circumstances of the property, including on the evidence, the risk of contamination. The appellant contended the original tribunal did not go far enough in adjusting the unimproved value on account of the contamination because the hypothetical purchaser, in deciding on the capital sum to be offered the subject lease, would have allowed the whole of the estimated cost of remediation being $1,034,000[20].
[20] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 1
Mr Arthur referred to the evidence from both Mr Robertson, the respondent’s valuer (described by the original tribunal as ‘an experienced commercial valuer with the Australian Valuation Office’), and Mr Green, the appellant’s valuer, (described by the original tribunal as ‘an experienced commercial valuer and head of valuation at Jones Lang LaSalle’) that the hypothetical purchaser, in making an assessment of the amount they should pay for the land, would want to cover themselves to the maximum amount they might have to pay for land remediation including possible contamination.
Mr Robertson’s evidence was that he made no allowance in his valuation for contamination because contamination has not been proved to exist. He had assumed that the risk was the same throughout Braddon and any sale that has occurred will have assumed that risk.[21] The original tribunal accepted Mr Robertson’s evidence when it said at paragraph 63[22]:
…The Tribunal accepts the proposition that the general risk of contamination in Braddon has been absorbed into the price structure for the area and that a hypothetical informed purchaser would know this.
[21] Original tribunal transcript, 6 June 2013, page 20 lines 15-L17.
[22] [2013] ACAT 59
Mr Arthur submitted that this proposition was flawed as not every block in Braddon was next door to a service station or dry-cleaners. Further, he submitted that Mr Robertson did not give evidence of how ‘the general risk of contamination in Braddon’ had been absorbed or factored in to the price structure for the area. There was, also, no evidence of the level of knowledge of the purchasers of the comparable sales relied upon, Sales 1 and 2, or of them asking for a deduction from the price for the risk of contamination or of whether or not they factored the risk of contamination into the purchase price at all.
Mr Arthur submitted that it was plain from Dr Gunton’s[23] evidence that the risk of contamination arising from the underground aquifer depended on whether the block was north or south, (as was the subject block) of the aquifer. Mr Arthur submitted that when comparing sales care must be taken to ensure that each and every transaction is carefully investigated to ensure that ‘like’ is being compared with ‘like’.
[23] Dr Gunton was described by the original tribunal as ‘a geologist with Robson Environmental who holds a PhD in geochemistry’.
Mr Arthur also submitted that the two comparable sales relied upon by the original tribunal, namely, Sale 1 being 27 Lonsdale Street and described as the middle block (Block 14 of Section 20) of the triple block (Block 13 - Block 15 Section 20) in August 2008 for $4,300,000, and Sale 2 being 8 Mort Street (Block 5 Section 28) on 24 March 2011 were only potentially comparable sales. In relation to Sale 1, he said that Mr Robertson had speculated as to what the purchaser might have done and went no further. Mr Arthur urged the Tribunal to look at the evidence of that sale, draw appropriate inferences and make the appropriate adjustments to make Sale 1 truly comparable.
The Sale 1 evidence before the original tribunal was that the purchaser of block 14 was also the owner of block 13 and of block 15, and had been for some years, and within a relatively short period of time the lease was issued and the consolidation of the three blocks occurred. Mr Arthur submitted that the original tribunal should have inferred both that the purchaser of block 14 knew what the situation was and that there was no contamination because of the subsequent issuing of the lease and the consolidation of the blocks.
In relation to Sale 2, the original tribunal said at paragraphs 57 and 58:
57. There are a number of curious aspects in the sequence of events leading to the contract dated 24 March 2011. It would appear that Mr O, a well known and experienced developer in Canberra, before he had a contract spent many thousands of dollars to get the lease varied, the CUC paid and plans prepared and approved for a seven storey building plus two basement levels of parking. The Applicant suggested Mr O may have had an option and that may be correct but the Tribunal simply does not know. As early as 31 May 2010, the vendor appointed Mr O’s architect to lodge a DA (Exhibit A5). On 8 September 2010, a DA to vary the lease was approved (Exhibit A4). On 20 September 2010, a DA with development plans was lodged and it was approved on 7 March 2011 (Exhibit A3). Those plans increased the GFA to 5850 square metres. A little over two weeks later the contract was signed. Each DA required an assessment of contamination to be made. After settlement a new Crown lease was granted to the purchaser on 29 November 2011 (EX A2) which did not contain the obligation to assess the contamination. There was much speculation about what Mr O as an experienced developer did or did not do, whether he had an enforceable contract, whether the land was contaminated, various other matters and who paid the CUC. If it was the vendor then the CUC should not be added to the purchase price but if it was the purchaser then the sale price should be increased by the CUC. Mr Robertson said that the CUC was $369,000 but in Junstamp previously mentioned the CUC for this lease variation was accepted by the Tribunal as being $500,000. The Tribunal is not satisfied it knows the correct CUC and declines to adjust the sale price.
58. The Tribunal finds that the sale of 8 Mort Street occurred on the 24 March 2011 for a sale price of $5,000,000, which should be increased by the demolition costs of $100,000 to $5,100,000.
Mr Arthur submitted “the inference [available] to be drawn by the original tribunal from the known facts [for Sale 2] …[was] that the vendor enabled the purchaser to get full development approvals so as to be able to immediately construct 59 units in 320 square metres …[a]nd it was just impossible to believe that if the vendor was cautious enough to ensure that it had all that in place it would not also have done the extra to ensure it wasn’t going to be caught out on the contamination front.” [words within square brackets added][24]
[24] Transcript, 25 March 2014, page 46 lines 31 - L37
The appellant submitted that the Tribunal should infer that the purchasers of Sale 1 and Sale 2 had taken the assessment opportunities they had, and were knowledgeable of the risk of contamination and it was negligible, whereas with the subject site the hypothetical purchaser’s knowledge was vastly different. Both valuers said the hypothetical purchaser would not take the risk, would protect themselves to the maximum and, in this regard, the appellant submitted that the contamination cost of $1,034,00.00 should have been factored into and deducted from the hypothetical sale price.
Instead, the original tribunal did not draw the inference open to it in relation to the risk profiles of Sales 1 and 2 when looking at these sales as evidence of comparable sales; ignored the evidence of the effect of the possibility of contamination on the value of the subject land and erred when it concluded that the appellant had not shown that the land was actually contaminated.
Respondent’s contentions
Mr McCarthy contended that the original tribunal considered the possibility of contamination and the costs of decontamination throughout the decision and the following finding was open to that tribunal on the evidence[25] -
that the general risk of contamination in Braddon has been absorbed into the price structure for the area and that a hypothetical informed purchaser would know this.
[25] Respondent’s Statement of Contended Findings and Grounds filed 14 February 2014,He submitted[26] that neither of the acts alleged by the appellant in Question 1(a) and (b) occurred. He said the original tribunal noted the two agreed facts: (i) that except for the underground storage tank (that is, UST) there was no evidence of actual contamination, and (ii) that contamination was only a potential or a possibility. That tribunal had expert opinion evidence from Mr Robertson that the possibility of contamination was already factored into Braddon land values, which it was entitled to rely on, and it rejected the appellant’s contentions that the unimproved value of the subject land should be reduced by the worst case scenario.
[26] Outline of Respondent’s Submissions Question 1 at [10] [11] and [12]
Mr McCarthy also submitted[27] that the appellant was attempting to re-argue its case by contending that ‘Mr Robertson’s position was flawed’ when firstly, this did not arise from Question 1(b); secondly, this amounted to an attack on Mr Robertson’s opinion when the appeal was heard on the existing evidence and Mr Robertson was not given an opportunity to answer this claim; thirdly, the arguments for why the appellant disagreed with Mr Robertson’s position were matters of expert opinion, put to Mr Robertson and rejected by him; fourthly, it is not the role of the Tribunal on appeal to revisit discretionary issues[28], namely, the discretionary merits of the competing arguments about how to deal with possible contamination; and fifthly, there was no manifest error in the original tribunal’s conclusion on the evidence before it, set out in paragraph 33 above.
Conclusion
[27] Outline of Respondent’s Submissions Question 1 at [16]
[28] ISPT at [12]-[14]
The appellant asked the Tribunal to find that the original tribunal failed to act in accordance with section 6 of the Rates Act and the principle in Spencer v Commonwealth when it held that deduction for remediation costs could only properly be made when actual contamination was shown to exist on the subject land, and that it had erred when it ignored the effect of the possibility of contamination on the subject land.
The Tribunal agrees with the respondent and is satisfied that the original tribunal did not hold that a deduction for the cost of remediation can only be made when actual contamination is shown. It is clear from the original decision[29] that the tribunal noted the two agreed facts: (i) that except for the underground storage tank (UST) there was no evidence of actual contamination and (ii) that contamination was only a potential or a possibility. It had Mr Robertson’s evidence[30], which it accepted, that the possibility of contamination was part of the risk profile for the appellant’s land and the other comparative sales properties relied on in Braddon.
[29] Reasons for Decision at [39]-[43]
[30] Transcript 6 June 2013, at page 20 lines 1-17, lines 44-45, and page 21 lines 1-44
The appellant submitted that when the original tribunal accepted Mr Robertson’s reasons for ignoring the risk of contamination – “the proposition that the general risk of contamination in Braddon has been absorbed into the price structure for the area and that a hypothetical informed purchaser would know this”[31], it erred because Mr Robertson’s position was flawed.
[31] Reasons for Decision at [63]
The Tribunal agrees with the respondent’s submission that this argument does not arise from the question of fact in paragraph 1(b) of the application for appeal and is an attack on Mr Robertson’s opinion, when this appeal was heard on the existing evidence. During the original hearing the parties had called expert evidence and been cross examined. The original tribunal considered the competing expert opinions about how to deal with possible contamination and reached its conclusion. In doing so, it chose not to accept the appellant’s contention that the UV of the land should be reduced by $1,034,000.00 being the maximum cost of remediation and the “worst case scenario”. While this is not the outcome the appellant’s sought, as stated in Thornthwaite and ISPT, it is not the role of this Tribunal on appeal to revisit the discretionary merits of competing arguments or opinions of expert witnesses.
The appellant also asked that the Tribunal find that the original tribunal failed to properly draw inferences from the evidence in relation to two of the comparable sales, Sale 1 (27 Lonsdale Street Braddon, block 14 section 20 Braddon) and Sale 2 (8 Mort Street Braddon, block 5 section 28 Braddon).
The appellant contended[32] in relation to Sale 1, that the original tribunal could have inferred, as the owner of the two immediately adjoining blocks was the purchaser of block 14 that the purchaser was in a position to carry out phase 2 testing as a guide to the contamination risk on block 14 and would probably have done so notwithstanding that the tribunal found[33] Mr Robertson’s evidence of this to be speculative and unhelpful.
[32] Outline of Submissions of Applicant at [18]
[33] Reasons for Decision at [54]
The appellant contended[34] in relation to Sale 2 that as the vendor had, over a 10 month period, allowed the purchaser to lodge a full development and have it approved prior to being required to enter a contract for the same price that had been noted at the commencement of the process, the original tribunal could have inferred that the purchaser, having been given such licence would also have taken the opportunity to assess the contamination risk and find that it was negligible since the price did not change and the Crown Lease was issued without any restriction on residential use within a few months.
[34] Outline of Submissions of Applicant at [19]
The original tribunal referred to the “number of curious aspects in the sequence of events leading to the contract dated 24 March 2011”[35] for this block. The original tribunal stated that “there was much speculation about what Mr O [the purchaser] …did or did not know.”
[35] Reasons for Decision at [57]
The appellant had suggested that the purchaser may have had an option and that the original tribunal, while stating that that might be correct, added that it “simply does not know…, whether he had an enforceable contract, whether the land was contaminated, various other matters and who paid the CUC.” The original tribunal concluded[36] that it “does not know” whether Mr O had an option and that it “is not satisfied that it knows the correct CUC and declines to adjust the sale price.[37]” In doing so, the Tribunal is not satisfied that the original tribunal erred; the tribunal described the curious aspects in the sequence of events leading to the contract and the speculation about what the purchaser did or did not know. These findings were available on the evidence. The original tribunal, in deciding not to participate in this guesswork and not to draw the inferences for which the appellant contends, did not err.
[36] Reasons for Decision at [57]
[37] Reasons for Decision [57]
Having considered all of the matters before it the Tribunal finds that there was no manifest error in the original tribunal approaching the issue of the effect of the possibility of contamination in the way it did. The Tribunal further finds that the original tribunal did act in accordance with section 6 of the Rates Act and the principle in Spencer v Commonwealth.
Question 2Did the Tribunal fail to accord the applicant a fair hearing when it relied on hearsay evidence as to the payment of a premium of 5% in relation to Sale 1, the evidence emerging for the first time in cross examination?
Appellant’s contentions
Mr Arthur submitted that “…although the rules of evidence, as such, do not bind, every attempt must be made to administer substantial justice”[38] Mr Robertson’s evidence of the premium of 5% in relation to Sale 1 was hearsay, it was not his opinion; it was what he “was told by another valuer as being what the purchaser told him.” [39] This hearsay evidence was not proved by admissible evidence. It was inherently unreliable and should be rejected.
[38] Transcript, 25 March 2014, page 56 lines 30-31; Lexis Nexis, Administrative Law Service, paragraph [238], pages 1798.1-1798.2
[39] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 2, page 2
Mr Arthur referred the Tribunal to the text, The Law Affecting Valuation of Land in Australia, by Alan Hyam, under the heading Evidence of Comparable Sales, and the three propositions of Megarry J in English Exporters (London) Ltd v Eldonwell Ltd[40]:
A valuer giving expert evidence in chief or in re-examination:
(a) may express the opinions that he has formed as to values even though substantial contributions to the formation of those opinions have been made by matters of which he has no firsthand knowledge;
(b) may give evidence as to the details of any transaction within his personal knowledge. In order to establish them as matters of fact; and
(c) may express his opinion as to the significance of any transactions which are or will be proved by admissible evidence (whether or not given by him) in relation to the valuation with which he is concerned; but may not give hearsay evidence stating the details of any transactions not within his personal knowledge in order to establish them as matters of fact.
[40] [1973] Ch. 415 at 423
Megarry J referred to a valuer building up opinions about values from “transactions in which he has been engaged, and …. from many other sources, including much of which he could give no firsthand evidence”[41] and concluded by saying[42]:
It therefore seems to me that details of comparable transactions upon which a valuer seeks to rely in his evidence must, if they are to be put before the court, be confined to those details, which have been or will be, proved by admissible evidence, given either the valuer himself or in some other way. I know of no special rule giving expert valuation witnesses the right to give hearsay evidence of facts.”
[41] At 420
[42] At 422
Mr Arthur also referred the Tribunal to the ‘Effect of rules of evidence’ in the Administrative Appeals Tribunal Service[43] and to the statements by Evatt J in R v War Pensions Entitlement Appeals Tribunal; ex parte Bott[44]:
But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."
[43] LexisNexis Service 162 at 1798.1 by Professor Pearce
[44] (1933) 50 CLR 228 at 256
Mr Arthur contended[45] for the finding that the appellant had been denied a fair hearing, but that Mr Robertson’s evidence should have been rejected as unreliable in any event.
Respondent’s contentions
[45] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 2, page 2
McCarthy contended[46] that there was no failure to accord the appellant a fair hearing in relation to ‘a premium of 5% in relation to Sale 1’. He referred the Tribunal to the statement by Griffiths CJ in Coutts v Close[47]-
It is also now settled that procedural fairness is not an abstract issue: rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice. As Gleeson CJ observed in Lam (2003) 214 CLR 1 at 14:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[46] Respondent’s Statement of Contended Findings and Grounds filed 14 February 2014, Question 2, at [6]
[47] [2014] FCA 19 at [120]
He submitted that the appellant did not suffer any practical injustice because, on its own case, the premium of 5% (at least) on Sale 1 was properly made[48]. The 5% premium for adjoining owner influence was noted in the reports of both experts, Mr Green and Mr Robertson.
Conclusion
[48] Outline of Respondent’s Submissions 24 March 2014, Page 5, Question 2 at [18]
The Tribunal is satisfied that the appellant was accorded a fair hearing in relation to the 5% premium. The appellant was not taken by surprise; the 5% premium was noted in both experts’ reports.
The original tribunal also noted Mr Green’s evidence that a 5% adjustment was considered appropriate when he understood that two blocks were involved and when he became aware that this was a three block consolidation, he opined that this should increase to 10%. However, the original tribunal also noted that Mr Green “did not offer any sales evidence to support his view that 10% was now the correct adjustment.”[49]
[49] Reasons for Decision at [53]
While the original tribunal referred to Mr Robertson’s ‘hearsay’ evidence and to not being bound by the technical rules of evidence, that tribunal had evidence in the written reports from both valuers as well as Mr Robertson’s oral evidence supporting the 5% adjustment. Notwithstanding Mr Green’s evidence of the amended adjustment to 10% the Tribunal is not satisfied that the original tribunal erred in not accepting Mr Green’s evidence of the amended adjustment and determining a 5% adjustment “based on the evidence available.”
Question 3Was the Tribunal entitled to ignore the opinion of Mr Green as an experienced valuer that a 10% deduction for adjoining owner influence in relation to Sale 1 was proper on the basis that he had not provided sales evidence in support?
Appellant’s contentions
Mr Arthur contended[50] that Mr Green’s expert opinion was evidence of value and should have been accepted. His evidence was that he had initially thought that the purchaser of Sale 2 only owned one of the adjoining blocks and based his opinion of a 5% purchaser premium on that understanding. When he found out, during the hearing, that the purchaser owned the blocks adjoining either side of block 14, he opined that 10% was the appropriate deduction.
[50] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 3, page 2
He contended[51] that there was no principle requiring a valuer’s opinion to be rejected if it is not supported by sales evidence; the correct principle is that a valuer’s expert opinion is evidence of value, the weight to be accorded to that evidence depending upon the soundness of its basis.
[51] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 3, page 2
Mr Arthur submitted that Mr Green’s opinion alone was evidence of fact and its weight was dependent on the reliability it has. His evidence was uncontested. While the Tribunal does not have to accept it, it has to assess the strength of that opinion evidence based on its reasoning in order to determine whether it is appropriate to accept. He submitted that the original tribunal erred in ignoring Mr Green’s opinion on the basis that he had not produced sales evidence in support.
Respondent’s contentions
Mr McCarthy contended that it was open to the original tribunal to conclude that the adjustment for Sale 1 should be 5%, not 10%, for the reasons given at paragraph 53 of the Reasons for Decision of the original tribunal.[52]
[52] Respondent’s Statement of Contended Findings and Grounds filed 14 February 2014, Question 3 at [11]
He submitted[53] that pursuant to section 26 of the ACAT Act 2008, the original tribunal was able to “inform itself in any way it considered appropriate in the circumstances” and it ‘stood in the shoes’ of the decision- maker, and made what it considered to be the correct and preferable decision.[54]
[53] Outline of Respondent’s Submissions at [21] and [23]
[54] S. 68(2) and (3) ACAT Act; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78; Re De Brett Investments Pty Ltd v Australian Fisheries Management Authority (2004) 82 ALD 163 at 194 and Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 143
He also submitted that the original tribunal heard evidence from both Mr Robertson and Mr Green in relation to Sale 1 adjoining owner influence. The Tribunal is not bound by the rules of evidence. It was open to the original tribunal not to accept Mr Green’s revised opinion when he became aware of the consolidation of a triple block rather than a double block and increased the percentage to 10% for such adjoining owner influence. The fact that Mr Green was not cross examined does not mean that the original tribunal was “stuck with it”.[55]
Conclusion
[55] Outline of Respondent’s Submissions at [20]
The Tribunal is satisfied that it was open to the original tribunal to conclude from the evidence before it that an adjustment of 5% was the appropriate adjustment for Sale 1. Mr Robertson gave that evidence. Mr Green gave that evidence in his report. It was within the bounds of an ‘adjustment’ that the original tribunal was properly able to make.[56] As stated above it was open to the original tribunal not to accept Mr Green’s revised opinion for the reasons given in paragraph 53 of the Reasons for Decision of the original tribunal. The Tribunal is not satisfied that the original tribunal erred in not accepting Mr Green’s revised opinion.
Question 4Did the Tribunal take into account an irrelevant consideration when it noted the evidence given in the Junstamp case that 5% was an appropriate deduction for adjoining owner influence in relation to Sale 1?
Appellant’s contentions
[56] Outline of Respondent’s Submissions at [25]
Mr Arthur contended[57] that the original tribunal should not have given any consideration to the findings of fact in the Junstamp case.[58]
[57] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 4, page 2
[58] Junstamp Pty Ltd and Ors & Commissioner for ACT Revenue [2013] ACAT 50
He submitted[59] that the original tribunal erred in referring to the 5% deduction for adjoining owner influence in Junstamp as the original tribunal did not know what information was available to the witnesses or that tribunal. He referred the Tribunal to Re Grove and Minister for Capital Territory[60] as authority for -
it not being appropriate to look at the unimproved value adopted for rating purposes of other neighbouring properties in order to decide whether the redetermination of the unimproved value of the subject land is too high,
adding that
the rationale for that is that you just don’t know what evidence was taken into account when that valuation was made.
[59] Outline of Submissions of Applicant at [38] and [43]
[60] (1979) 2 ALD 128
He also referred the Tribunal to comments by Mason J in Federal Commissioner of Taxation v St Helen’s Farm (ACT) Pty Ltd[61] in relation to the reliance which valuers place on statements in court judgments in other valuation matters:
But I should make the comment that too much attention is given both by valuers and judges to what has been said by courts in other cases on matters of fact and discretionary judgment, not being matters of law. Essentially valuations are estimations involving findings of fact and discretionary judgment made on the evidence given in the individual case and by reference to the circumstances of that case. To apply slavishly the approach taken by a judge in another case, to apply the same discount or capitalization rate that he applied, as if that rate had the force of a general rule, is to attribute to them the force that should be confined to propositions of the law.
Respondent’s contentions
[61] (1981) 145 CLR 336 at 383
Mr McCarthy submitted that the original tribunal made it clear in the Reasons for Decision that it did not place weight on what was said in Junstamp, adding that it was careful not to do so.[62]
Conclusion
[62] Outline of Respondent’s Submissions 24 March 2014 at [29]
The Tribunal concurs with the respondent. The original tribunal, in paragraph 53, clearly stated its finding, which was available to it on the evidence, that “in my [the Senior Member’s] view, based on the evidence available the Tribunal believes that a 5% adjustment is the most appropriate. [words within brackets added]” While the original tribunal then added that “[i]t is of interest to note that both valuers in Junstamp…[63] agreed that the correct adjustment was 5%”, the Tribunal is not satisfied that the original tribunal placed any weight on what was said in Junstamp. The comments appear to be a passing observation.
Question 5Was the finding of the Tribunal that the appropriate deduction for adjoining owner influence in relation to Sale 1 was 5%, a finding against the weight of the evidence?
Appellant’s contentions
[63] [2013] ACAT 59
Mr Arthur contended[64] that the evidence showed that 10% was the appropriate figure representing adjoining owner influence. He submitted that it was clear that Mr Robertson had not turned his own mind to the appropriate percentage adjustment for adjoining owner influence instead relying on what he had been told by another valuer as being what the purchaser told him. He submitted that the evidence should have been excluded.
[64] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 5, page 2
When Mr Robertson’s evidence and the Junstamp evidence was excluded, the Tribunal was left with Mr Green’s evidence that 10% was the appropriate deduction for two adjoining owner interests. Mr Green had turned his own mind to this factor and his evidence was not only the only evidence left standing; it was unchallenged and reliable and ought to have been accepted in the proper way.
Respondent’s contentions
Mr McCarthy repeated the contentions relied on in relation to questions 2, 3 and 4.
Conclusion
The Tribunal concurs with the respondent and refers to paragraph 66 above. The Tribunal is not satisfied that the appropriate deduction for adjoining owner influence of 5% was against the weight of the evidence.
Question 7Was the Tribunal entitled to ignore the opinion of Mr Green as an experienced valuer that a 2% deduction for delays in decontaminating the site was proper on the basis that he had not provided sales evidence in support?
Appellant’s contentions
Mr Arthur contended[65] for the finding that Mr Green’s opinion should be accepted. He submitted that the original tribunal erred in ignoring Mr Green’s opinion as an experienced valuer. The evidence of Dr Gunton was that a straight forward assessment and remediation would take about 4 – 6 months, and if more complicated, could stretch into years.[66]
[65] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 7, page 3
[66] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 7 Ground (3), page 3
Mr Green gave evidence of his expertise in these matters. In his evidence, he gave rational reasons for allowing a 2% deduction as the amount of additional holding costs caused by delay. His evidence of this estimate was within his expertise and it was reliable. He did not need to provide sales evidence in support. His opinion ought to have been accepted as evidence in the proper way.
Respondent’s contentions
Mr McCarthy contended that, in relation to this ground, the appellant was, again, asking the Tribunal to ‘tinker’ with the opinion of the original tribunal.
He also contended that the original tribunal relevantly stated that the applicant has the burden of proof under section 101 of the TAA and found that the applicant had not justified the claimed 2% reduction.
Conclusion
The original tribunal set out in one succinct paragraph why this argument had failed when it stated:
62. The Applicant urged that a hypothetical purchaser would reduce the UV of the subject land by 2% for delays in decontaminating the site. Mr Green did not provide any sales evidence to support his general proposition nor for the selection of 2%. The Applicant has the burden of proof under section 101 of the TAA and has not convinced that Tribunal that the 2% reduction is justified.
Mr Green’s evidence was that an allowance of 2% for any extra time taken to decontaminate the site to enable any residential building on the site:
“is a minor allowance to reflect that there is additional time required to prepare and decontaminate the site. 2% as a factor of a $5 million unimproved valuer is a small component, $100,000. We are aware of other instances in Braddon where it’s taken significantly longer periods to decontaminate sites, and I think an allowance of 2% could easily be more, and we are of the opinion that such allowance is fair.”[67]
[67] Transcript, 21 February 2013, page 51 lines 33-45
Mr Green did not provide evidence of the other instances or any other evidence to support his opinion. Relevantly, his evidence did not support a connection between delay in developing a site and a reduced estimate of the unimproved value of the land.
The Tribunal is satisfied that the original tribunal correctly found that the burden of proof was on the applicant; that Mr Green’s opinion was not supported by the evidence and that it was open on the evidence for the original tribunal not to accept it.
The Tribunal finds that there was no obviously manifest error in the original tribunal’s decision not to accept Mr Green’s opinion. Mr Green’s evidence lacked sufficient detail, especially in relation to the ‘other instances in Braddon’ and it did not explain how he had selected the figure of 2%. This evidence did not meet the statutory burden of proof.
Question 8Was the Tribunal entitled to ignore the opinion of Mr Green as an experienced valuer that a 10% deduction for difficulties encountered in obtaining finance was proper on the basis that he had not provided specific evidence in support?
and
Question 9Was the Tribunal entitled to ignore the evidence of Mr Green as to his personal experience of the practice of financiers when considering lending in relation to sites affected by contamination?
Appellant’s contentions
Mr Arthur, again, contended for the finding that Mr Green’s opinion evidence should be accepted.[68]He submitted that the original tribunal erred in ignoring Mr Green’s personal experience of the requirements of financiers in relation to potentially contaminated development sites and in determining that his expertise was not relevant. Mr Green had direct, significant expertise in the area of the costs of borrowing where significant risks are attached to a project and he was well placed to be able to quantify that figure. His evidence was not challenged. He did not need sales evidence. He gave rational reasons for his opinion and his evidence ought to have been accepted as evidence in the proper way.
Respondent’s contentions
[68] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Questions 8 and 9 , pages 3 and 4
Mr McCarthy submitted[69] that this question turns on the same general principles about the use of expert opinion evidence.
[69] Outline of Respondent’s Submissions at [37]
The applicant had the statutory burden of proof and had not discharged it. In this regard the respondent relied on the principles in Makita (Australia) Pty Ltd v Spowles (Makita)[70] to which the Victorian Supreme Court referred in Challenger Property[71]. There was no evidence to support Mr Green’s opinion that financiers would behave in the way he claims; there was no evidence that they would increase their charges for finance to develop the site by 10% or at all because of potential contamination.[72]
[70] (2001) 52 NSWLR 705 at 743-4
[71] [2011] VSC 184 at [25]:
25. A valuer is, of course, an expert and, as such, is required to reveal in his or her evidence the factual and intellectual basis of an opinion. This follows from the general principle applicable to expert opinion evidence as stated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles:...
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge’; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen [1999] HCA 2; [197 CLR 414] (at 428 [41]), on ‘a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise’.”
[72] Respondent’s Statement of Contended Findings and Grounds at [29] and [30]
The original tribunal concluded that the general risk of contamination had been absorbed into the price structure for the Braddon area.
Conclusion
The original tribunal found that Mr Green’s evidence of “this gloomy picture was not supported by any specific evidence which the Tribunal believes the applicant must produce if it is to discharge the burden of proof that it carries.”[73]
[73] Reasons for Decision at [63]
It was appropriate and permissible for the original tribunal to conclude, having considered all of the evidence, that the appellant had not discharged the statutory burden of proof that it carried in relation to that claim. In doing so, it did not fall into error.
Question 10 Was the Tribunal entitled to ignore the opinion of Mr Green as an experienced valuer that a deduction for the negative influence of an adjoining service station was proper on the basis that he had not provided sales evidence in support?
Appellant’s contentions
Mr Arthur contended for the finding that Mr Green’s opinion evidence should be accepted.[74]
[74] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 10, page 4
In Mr Green’s report, he had allowed 5% for adjoining owner influence which he had revised in his evidence to 10% from a comparison with Sale 3 (43 – 45 Torrens Street). Mr Arthur acknowledged that Sale 3 had been discarded as not being conducted at arm’s length; however, he submitted that Mr Green’s original estimate of 5% still stood and should be accepted.
He submitted that the original tribunal erred in ignoring Mr Green’s opinion as an experienced valuer on the basis that he had not provided sales evidence in support as “there is no principle requiring a valuer’s opinion to be rejected if it is not supported by sales evidence.”[75]
[75] Outline of Submissions of Applicant at [64]
Mr Arthur repeated his submissions set out in paragraph 62 above. Mr Green’s evidence[76], as a valuer for over 20 years, was that he had come up with the 5% figure for service station influence -
Because it’s real. … would a purchaser of those individual residential units take a dim view or a very positive view in relation to living next door to a service station?
and
In my experience there is a detrimental effect being adjacent [to a service station].[77]
Respondent’s contentions
[76] T 133 L29 – L41
[77] T 134 L11- L12
Mr McCarthy said, in relation to the appellant’s submission in paragraph 93 above, neither the respondent nor the original tribunal suggested that there was such a principle.
Mr McCarthy, again, referred the Tribunal to the principles in Makita and submitted[78] that it was appropriate and permissible for the original Tribunal to conclude that the appellant had not discharged its burden of proof in relation to its claim.
[78] Outline of Respondent’s Submissions at [41]
Where the appellant could not offer any other comparative sales to support a deduction and where the original tribunal had Mr Robertson’s opinion evidence that the subject land had a similar risk profile to other sales relied on in Braddon, it was reasonable for that tribunal not to accept Mr Green’s evidence. In doing so, there was no manifest error.
Conclusion
The Tribunal is satisfied and finds that there was no obviously manifest error in the original tribunal’s decision not to accept Mr Green’s opinion for the reasons set out in paragraph 64 of its Reasons for Decision. The original tribunal refers to both the 10% deduction in Mr Green’s evidence and the 5% deduction in his report.
The fact was that Mr Green did not offer any other comparative sales evidence to support his 10% deduction. It also had Mr Robertson’s evidence referred to in paragraph 97. It was not unreasonable that the original tribunal not to accept Mr Green’s evidence.
In these circumstances, the Tribunal finds it was reasonable for the original tribunal to find that the evidence did not meet the statutory burden of proof.
Question 11Was the approach of the Tribunal in arriving at the unimproved value of the subject lease for 2009 on the one hand and 2010 and 2011 on the other hand, consistent with the principles applicable to the analysis of comparable sales evidence?
Appellant’s contentions
Mr Arthur contended for the following findings[79] –
i.Sale 1 is the most comparable sale, and therefore is the best evidence of the market value of the subject lease, for the purposes of determination of value as at 1 January 2009. The unimproved value is therefore $4,235,000 after adjustment of 5% for adjoining owner influence (or $4,020,000 at 10%), but before other adjustments (for proximity to a service station, and the effect of the risk of contamination) to make the sale truly comparable.
ii.Sale 2 is the most comparable sale, and therefore is the best evidence of the market value of the subject lease, for the purposes of determination of value as at 1 January 2010 and 1 January 2011. The unimproved value is therefore $4,300,000 after adjustment for size and location, but before other adjustments (for proximity to a service station and effect of the risk of contamination) to make the sale truly comparable.
iii.Sale 4 (1/ 45 Turner) is not sufficiently comparable and should not be taken into account.
iv.An adjustment should be made in each case for the absence of the risk of contamination.
[79] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 11, page 5
He submitted[80] that the original tribunal, in arriving at the unimproved value of the subject lease for the respective years, moved away from the process which uses comparable sales to identify what the market would pay for the hypothetical block into an exercise of constructing for itself a valuation.
[80] Transcript, 25 March 2014, page 76 lines 28 - L31
He submitted that the most comparable sale and the best evidence for the valuation at 1 January 2009 was Sale 1 which occurred in August 2008. The original tribunal erred in taking no account of Sale 1 at all and it erred in combining an assumed value for commercial use and a residential value derived from Sale 2.[81]
[81] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 11 Ground 3, page 5
Mr Arthur submitted that Sale 2 provided the most comparable sale and the best evidence of value for the purpose of valuation at 1 January 2010 and 1 January 2011. Mr Green had provided reliable evidence of a direct comparison of the subject block with Sale 2 and after adjustment for size and location arrived at a value of $4,300,000, before other adjustments for adjoining service station and the risk of contamination. The original tribunal did not use a direct comparison with Sale 2 and erred in taking-
..a hybrid approach utilising an assumed value for commercial use (not derived from Sale 2) and a residential value derived from Sale 2. It did not adjust for the difference in size between blocks (4551m² for Sale 2 and 3762m²), but did adjust the proportion of residential use to commercial use from 7% and 93% in Sale 2 to 66.5% and 33.5% for the subject block. The evidence does not justify adjustment of the use mix, and adjustment must always be made for size.[82]
Respondent’s contentions
[82] Applicant’s Statement as to Findings and Grounds filed 13 January 2014, Question 11, page 5
Mr McCarthy argued[83] that this question did “not pose any gateway question of fact or law about which it is said that the [original] Tribunal fell into error”. He described it as an attempt to re-argue the appellant’s case.
[83] Outline of Respondent’s Submissions at [45]
He submitted[84] that the original tribunal noted many of the features, both relevant and essential, of Sales 1[85], 2[86] and 4[87] which led to the opinions expressed by the valuers and from which the original tribunal reached its conclusion. Both valuers relied on Sale 1 when expressing their opinions on an appropriate commercial rate per square metre of GFA for the subject property and the original tribunal opted for the lower estimates advanced by Mr Robertson when determining an appropriate rate.
[84] Outline of Respondent’s Submissions at [46]
[85]Giusida & Commissioner for ACT Revenue [2013] ACAT 59 at [51] – [54]
[86]Giusida & Commissioner for ACT Revenue [2013] ACAT 59 at [56] and [68]
[87]Giusida & Commissioner for ACT Revenue [2013] ACAT 59 at [49] and [67]
Both valuers considered Sale 2 when they gave their opinions on the appropriate commercial and residential rates and the original tribunal considered these opinions. Likewise, both valuers agreed that sale 4 could be used in a limited way to assist the tribunal with a minimum commercial rate.
In relation to contamination, the respondent submitted[88] that it is inaccurate to say that the purchasers of Sale 1 and Sale 2 did not make any allowance for the risk of contamination; there was no evidence either way.
Conclusion
[88] Respondent’s Statement of Contended Findings and Grounds at page 6 [41]
As this question is set out, the Tribunal concurs with the respondent’s submission that it does not identify a gateway question of fact or law about which the original tribunal fell into error.
The original tribunal identified[89]that;
…the process of valuation is a mixture of science and art. Much of the information is objective but the interpretation of that information is both complicated and subjective. It is adjusted through the application of the individual valuer’s experience which permits a range of possible outcomes. The process is perhaps not unlike reaching a legal decision.
[89]Giusida & Commissioner for ACT Revenue [2013] ACAT 59 at [66]
Doing the best it can with Question 11, it appears to the Tribunal that the appellant’s claim was that the original tribunal erred:
(a)in not taking into account Sale 1 when it was the best evidence of value for the subject lease as at 1 January 2009; and
(b)in combining an assumed value for commercial use and a residential value derived from[90] Sale 2; and
(c)in not using a direct comparison with Sale 2 as evidence of value at the later relevant dates; and
(d)in taking a hybrid approach using an assumed value for commercial use not derived from Sale 2 and a residential value derived from Sale 2; and
(e)in not adjusting for the size difference between the blocks; and
(f)in not making an adjustment for the absence of the risk of contamination.
[90] Outline of Submissions of Applicant at [71]
The Tribunal is satisfied that the original tribunal considered the evidence from both valuers in relation to the commercial and residential rates and set out why it preferred the evidence of Mr Robertson in paragraphs 67 and 68 of its Reasons for Decision. This ultimately led to an outcome that dissatisfied the appellants.
However, the Tribunal is not satisfied that in proceeding this way the original tribunal erred. It had the valuers’ evidence of Sales 1, 2 and 4. As stated in paragraph 43 above, it is not the role of this Tribunal on appeal to revisit the discretionary merits of competing arguments or opinions of expert witnesses.
The original tribunal identified in paragraph 66 of its Reasons for Decision some of the real issues faced by decision makers in valuation matters. The Tribunal concurs with the respondent[91] that in an area where “there is more than ordinary room for such guesswork; and it would be very unfair to require an exact exposition of reasons for the conclusions arrived at” [92] the original tribunal’s adjustments and preferences for some evidence over other evidence was quite permissible.
[91] Respondent’s Outline of Submissions at [47]
[92]Challenger Property at [19], quoting Lord Hobhouse in Secretary of State for Foreign Affairs v
Charlesworth, Pilling & Co [2901] AC 373 at 391
The Tribunal is satisfied that, in its Reasons for Decision, the original tribunal noted many of the features of Sales 1, 2 and 4 and that it considered the valuers’ opinion evidence of these sales when reached its conclusion. The Tribunal agrees with the Respondent, that it is implicit that the original tribunal took these comparative sales into account. The Tribunal is further satisfied that the original tribunal did not ignore the issue of contamination. That tribunal did not, however, deal with it in the way the Appellant sought and for the reasons set out above the Tribunal is not satisfied that this means that the original tribunal fell into error in reaching this decision.
Pursuant to rule 21(d) of the ACT Civil and Administrative Tribunal Procedural Rules (No. 2) 2009 the Appeal Tribunal will confirm the decision of the original tribunal dated 10 September 2013.
………………………………..
Mr W.G. Stefaniak AM
Appeal President
For and on behalf of the Tribunal
PUBLICATION DETAILS
FILE NUMBER: | AA 13/39 |
PARTIES, APPELLANT: | GIUSIDA PTY LIMITED |
PARTIES, RESPONDENT: | COMMISSIONER FOR ACT REVENUE |
COUNSEL APPEARING, APPELLANT | Mr R. Arthur |
COUNSEL APPEARING, RESPONDENT | Mr G. McCarthy |
SOLICITORS FOR APPELLANT | Bradley Allen Love Lawyers |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Mr W.G. Stefaniak AM, Appeal President Ms E. Symons, Presidential Member |
DATES OF HEARING: | 25 & 26 March 2014 |
PLACE OF HEARING: | Canberra |
Question 1.1
3
16
0