Giusida Pty Ltd v Commissioner for ACT Revenue (No 2)
[2018] ACTSC 178
•21 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Giusida Pty Ltd v Commissioner for ACT Revenue (No 2) |
Citation: | [2018] ACTSC 178 |
Hearing Date: | 1 June 2018 and on the papers |
DecisionDate: | 21 June 2018 |
Before: | Elkaim J |
Decision: | See [64] |
Catchwords: | APPEAL – DECISION BY AN ADMINISTRATIVE TRIBUNAL – ACT Civil and Administrative Tribunal – questions of fact and law – whether the Tribunal acted in accordance with law – whether the Tribunal accorded the applicant a fair hearing – whether the Tribunal accorded appropriate weight to the opinions of valuers – whether the Tribunal took into account irrelevant considerations |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) s 86(1)(a) |
Cases Cited: | Commissioner of Taxation (Cth) v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 Giusida Pty Ltd v Commissioner for ACT Revenue [2013] ACAT 59 |
Parties: | Giusida Pty Ltd (Appellant) Commissioner for ACT Revenue (Respondent) |
Representation: | Counsel Mr R Arthur (Appellant) Mr D Jarvis (Respondent) |
| Solicitors Bradley Allen Love Lawyers (Appellant) ACT Government Solicitor (Respondent) | |
File Number: | SCA 73 of 2014 |
Decision under appeal: | Tribunal: ACT Civil and Administrative Tribunal Before: Mr W G Stefaniak AM and Ms E Symons Date of Decision: 31 July 2014 Case Title: Giusida Pty Ltd v Commissioner for ACT Revenue Citation: [2014] ACAT 50 |
ELKAIM J:
The appellant is the owner of a property situated at 3 Lonsdale Street, Braddon in the Australian Capital Territory. The respondent is the Commissioner for ACT Revenue. This appeal is from a decision of the ACT Civil and Administrative Tribunal (‘ACAT’), brought under s 86(1)(a) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (‘the Act’).
The application for leave to appeal was heard by Refshauge J on 25 September 2014 and 24 February 2015. On 21 September 2016, his Honour granted the appellant leave to appeal (Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275).
Refshauge J heard the appeal on 13 February 2017. His Honour reserved his decision but regrettably, due to ill health, he has not been able to finalise and deliver the judgment.
The parties consented to the matter being transferred to me and being dealt with on the papers, including the transcript of the submissions made to his Honour and the written submissions that had been filed before the hearing.
In addition, I had the benefit of oral submissions made by the parties on 1 June 2018.
In the course of oral submissions, after reference had been made to Refshauge J’s judgment, I pointed out to the parties that his Honour had made a number of findings which could be viewed as having decided some of the issues. Although his Honour often couched these findings as forming a basis for concluding that there was an arguable point to go to appeal, there is no doubt that in reaching his conclusions his Honour conducted a thorough assessment of the material before him and the relevant authorities.
I also pointed out that most of the findings made by his Honour were in favour of the appellant and had effectively established its case. The respondent’s answer to this observation was that his Honour, as he had himself pointed out, was dealing with the matter at the level of a leave application and did not have before him all the evidence (including the transcript before the Tribunal), so that caution should be taken in adopting any conclusion reached by his Honour.
Effectively, it was submitted that I should reach my own conclusions on the appeal notwithstanding that his Honour may have reached any particular conclusion. I agree that that is the approach to be adopted.
Procedural background
The relevant starting point is a redetermination of the unimproved value of the subject property made by the respondent on 16 September 2011. The appellant objected to the redetermination but was not successful. This led to an application being filed in ACAT on 30 March 2012 seeking a review of the decision by the respondent to disallow an objection by the applicant to the Commission’s redetermination of the unimproved value of the land.
The application in ACAT was decided on 10 September 2013 (Giusida Pty Ltd v Commissioner for ACT Revenue [2013] ACAT 59). The decision was as follows:
Pursuant to section 68 of the ACT Civil and Administrative Tribunal Act 2008 the reviewable decision is set aside and remitted to the Commissioner for reconsideration in accordance with the directions of the Tribunal set out in paragraph 71 and 72 of the Reasons for Decision.
The appellant sought a review by the ACT Civil and Administrative Appeals Tribunal (‘the Appeals Tribunal’). The Appeals Tribunal gave its decision on 31 July 2014 (Giusida Pty Ltd v Commissioner for ACT Revenue [2014] ACAT 50). ACAT’s decision on 10 September 2013 was confirmed.
The appellant then filed an application for leave to appeal, which was determined by Refshauge J on 21 September 2016. The appeal is now before me for decision.
The appeal
The Notice of Appeal is the document that was considered in draft form by Refshauge J. It is significant to note that the only order sought by the appellant in the event of its success is that the decision of the Tribunal be set aside and the matter “be remitted to the Tribunal for reconsideration in accordance with the directions of the Court”.
The task that was before Refshauge J in deciding whether or not to grant leave to appeal was essentially one of deciding whether, on each of the questions asked in the draft Notice of Appeal, there was an arguable case.
His Honour did so decide in respect of all of the questions other than Questions 5 and 6. He found that there was no arguable case to justify a grant of leave in respect of Question 5. He did not deal with Question 6 because the appellant had removed it from consideration.
Refshauge J referred to the first ACAT decision as the Original Decision and the second as the Appeal Decision. I will adopt the same practice.
Before looking at the individual questions making up the appeal, I think it is important to note a submission made by the respondent. It submitted that the appeal fell within two categories. The first category was constituted by the proper approach to be taken to the valuation of the land. This was the primary legal issue in contest. The second category was made up of a number of ‘lesser’ points which, even if found in the appellant’s favour, would not constitute sufficient error to enable success in the appeal.
The appellant did not dispute the primacy of the valuation issue. It also did not dispute that the remaining points, on their own, might not justify the matter going back to ACAT. However, the appellant submitted that, if a number of the points in the second category were found in favour of the appellant, the cumulative effect would create success in the appeal.
It is also important to note at this stage that a number of the complaints made by the appellant were not only derived from a conclusion reached in ACAT, but also from the manner in which the conclusion was reached, and in particular a denial of procedural fairness.
Question 1
Did the Tribunal act in accordance with Section 6 of the Rates Act 2004 and the principle in Spencer v Commonwealth (1907) 5 CLR 418 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. Disregarded the effect on value of the possibility of contamination?
The starting point is s 6 of the Rates Act 2004 (ACT). It states:
S 6 Meaning of unimproved value
(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, filing, 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.
NoteRelevant 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.
Question 1 is the most significant of all the questions and, on its own, is capable of determining the appeal. The balance of the questions often overlap, cover the same complaints and, as submitted by the respondent, would individually not necessarily give rise to success on the appeal.
The relevant part of Spencer v Commonwealth (1907) 5 CLR 418 states at 432:
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.
I note also the following passage at 441:
To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.
There was no dispute between the parties that:
(a)If a development is to include, in whole or in part, a residential component, then the land beneath it must not be contaminated. The relevant Crown Lease allows residential use “….PROVIDED THAT the site is decontaminated to the satisfaction of the Territory”. It follows that if the land is contaminated it will have a lesser value because, at least, if it is to be made available for a residential purpose, a cost will be involved in removing the contamination.
(b)The suburb of Braddon has areas of contamination which might be the product of an aquifer that flows beneath it or might be the product of specific uses that the subject land or adjoining land have been put to. Thus in this case there is a service station next door, there was a dry cleaner and another service station a little distance away and there had been a storage tank beneath the subject land, although it had since been decommissioned and filled with sand. The Original Decision allowed for the cost of removing the storage tank.
(c)While there was a risk of the presence of contamination, no actual contamination had been identified in the subject land.
(d)It is a preferred method, for the purposes of s 6 of the Rates Act 2004 (ACT), to ascertain value, where possible, from an analysis of comparable sales. In this case, the primary focus was on two properties, one at No 27 Lonsdale Street (‘Sale 1’) and the other at No 28 Mort Street (‘Sale 2’).
The approach adopted by the appellant is that ACAT (in either guise of the Original Decision or the Appeal Decision) should have found that the risk of contamination was enough to produce a diminution in value compared to land without contamination. It was not a proper approach to say that if there was no identified contamination there could be no reduction in value. The risk was enough to dictate the diminution.
The respondent made two primary points:
(a)In the absence of evidence of actual contamination, any risk should be ignored because it could be assumed that other sales had taken into account the possibility of contamination.
(b)If the risk of contamination created a lessening of the unimproved value of the land then, assuming a need for remediation was already reflected in other sales evidence, to add a further deduction would amount to “double counting”.
At the original hearing, the appellant relied on the report of a Dr Gunton who described himself as an Environmental Assessment and Remediation Manager (AB Tab 32). His Curriculum Vitae indicates an extensive tertiary background in different elements of geology. He provided various costings for remediation of a contaminated site. Although the Original Decision does describe the submissions of the parties arising from Dr Gunton’s report, and although a deduction is allowed of $64,000 per annum for sampling and testing, there does not seem to be any finding made on the competing arguments.
The Original Decision states at [43]:
Except for the UST there is no evidence of a potential primary contamination source of the subject land. More importantly, there is no evidence of actual contamination on the subject land.
There is, I think, an inconsistency in allowing the above deduction but at the same time proceeding on the basis that there was no actual contamination. The allowance for investigation, in the order of $64,000, is a recognition that the risk of contamination is real.
I think a consequential finding of a real risk of contamination must be reflected in the assessment of the unimproved value of a property. The Tribunal’s answer to this conclusion was that, at [63]:
…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.
The difficulty with this answer is that it is based on the assumption that the risk of contamination will be consistent across the whole of Braddon. If the risk is not consistent, then it must be an erroneous step to conclude that the contamination risk would have been accepted across the board and, in effect, in every sale in Braddon.
The Original Decision included a specific acceptance that the risk was evenly spread across Braddon. The Appeal Decision noted this and stated at [30]:
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. The original tribunal accepted Mr Robertson’s evidence when it said at paragraph 63:
…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.
It was not the evidence, and as a matter of logic it cannot be the case that the risk of contamination would be equal in every block in Braddon. Each block, each street and each premises has a different history. There are of course features that are common to all of them but there must also be individual features. These could be derived from previous uses of the premises or from neighbouring premises or perhaps the course of the aquifer beneath the premises. For example, not every site in Braddon was once a service station, or has or had a service station next door.
In my view, it is an error to apply an equal assumption across the whole of Braddon. This was, however, the approach taken in the Original Decision and confirmed in the Appeal Decision. This is a fundamental element in the two ACAT decisions. The finding of error in relation to Question 1 alone dictates that the matter must be remitted back to ACAT.
Once remitted, the approach to be taken by ACAT should involve a specific determination of the extent of the risk of contamination and, if there is such a risk, the likely extent of the contamination itself.
Specifically, ACAT should not proceed on the assumption that all sales in Braddon include an allowance for contamination in the purchase price and that the risk of contamination is uniform through the suburb.
Questions 2, 3 and 4
Question 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?
Question 3:
Was the Tribunal entitled to refuse to take account of 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?
Question 4:
Did the Tribunal take into account an irrelevant consideration when it noted the evidence given in the Jumstamp case that 5% was an appropriate deduction for adjoining owner influence in relation to Sale 1?
Turning now to the comparable sales, the appellant submitted that the Original Decision did not take proper account of the sales, in particular that it did not analyse the sales according to their individual components. The respondent submitted that any difference between the valuers was simply a difference in opinion between two experts. If the Tribunal chose one over the other then, absent any procedural unfairness, its decision could not give rise to an appellable error.
The appellant pointed out that Sale 1 had added elements to it which meant that its sale price had been increased by up to 10%. These elements were that the sale was of a block bordered on each side by a block already owned by the purchaser. Therefore, the purchaser would have been expected to pay a premium over the market price to secure ownership of three blocks in a row.
The options must be assumed to increase where three adjoining blocks are available for development. The other element in the sale is that the purchaser, already owning the two adjoining blocks, would have had a more precise appreciation of the level of contamination in the block that was being purchased. The fact of the purchase would imply at least minimal contamination.
In respect of Sale 2, the appellant submitted that, firstly, it was a bigger block than the subject land and, secondly, the history of the purchase suggested that $5 million had been agreed to be paid, by a “handshake deal”, if a permit to include a residential development was approved. Because there was such approval, there was an inflation of the price by $5 million and an implication that there was no contamination because, otherwise, residential approval would not have been granted.
The argument about the valuers and the valuations really came down to a question of whether the appellant’s valuer, Mr Green, had been afforded procedural fairness.
The Original Decision stated at [53]:
Mr Green however considered that while a 5% adjustment was appropriate when two blocks were involved, in his opinion the deduction should increase to 10% because this was a three block consolidation. Mr Green in his report had accepted 5% because he then thought it was a two block consolidation. He did not offer any sales evidence to support his view that 10% was now the correct adjustment. If the 10% reduction of Mr Green is used in the adjustment the sale price becomes $4,020,000, which gives a commercial GFA rate of $1,605 per square metre. Mr Robertson offered some evidence that the purchaser Mr B, who was obviously aware that the consolidation involved three blocks had told another AVO valuer that he had paid a 5% premium to obtain the land. The Tribunal is not of course bound by the technical rules of evidence. In my view, based on the evidence available the Tribunal believes that a 5% adjustment is the most appropriate. It is of interest to note that both valuers in Junstamp v Commissioner for ACT Revenue [2013] ACAT 50 agreed that the correct adjustment was 5%.
The Original Decision accepts that, in the above quoted paragraph, it is relying on hearsay evidence. It correctly observes that it is not bound by the technical rules of evidence. The complaint made by the appellant is that, even though hearsay evidence was admissible, the Original Decision has essentially treated the 10% possibility in a somewhat cavalier fashion. Its rejection seems to be based on what the purchaser had told the valuer. Not only is there double hearsay but the decision seems to accept it without the benefit of an analysis of Mr Green’s evidence about the 10%.
Further, the Original Decision’s reference to the agreement of valuers in Junstamp v Commissioner for ACT Revenue [2013] ACAT 50 (‘Junstamp’) may well be an impermissible consideration. This can be derived from Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at [49]:
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.
I do, however, note that the Original Decision did not base its view on Junstamp but rather referred to it as being “of interest”. For this reason, the Appeal Decision’s treatment of this point at [73] is probably unimpeachable.
Ultimately, I think the error that emerges from the treatment of the 5% or 10% issue is the failure to analyse and rationalise the competing percentages. Instead, the Original Decision is based simply on what apparently happened when the purchase was made.
The Appeal Decision states its conclusion at [68]:
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. 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.
It is immediately apparent from [68] that the Appeal Decision relies on the reasons given in [53] of the Original Decision. As can be seen above, these reasons are flawed. The Appeal Decision is correct in stating that it was open to the original Tribunal to reach a conclusion on the adjustment. What the Appeal Decision ignores is the basis upon which Original Decision came to its conclusion.
Question 7
Was the Tribunal entitled to refuse to take account of 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?
The Original Decision dealt with this point in [62]:
The Applicant argued 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 the Tribunal that the 2% reduction is justified.
The appellant says that Mr Green was not challenged on his opinion about the deduction of 2% and the opinion should not have been rejected because there was no sales evidence to support it. The respondent’s reply is that Mr Green’s opinion was based on his erroneous assumption that the site was actually contaminated. This submission, while logical, is not the point at issue. The Tribunal did not reject the evidence because there was no contamination. It rejected it because there was no sales evidence to support the deduction.
I think this ground is made out, although it is certainly not a ground that, on its own, would justify the matter being remitted back to ACAT. Simply put, the Tribunal ignored Mr Green’s opinion notwithstanding that no contrary opinion was put to him. His position as an expert valuer should have been enough to imply that he had taken all appropriate evidence into account in reaching his view. This would not have been the case, of course, if Mr Green had been challenged about the basis for his opinion.
Questions 8 and 9
Question 8:
Was the Tribunal entitled to refuse to take notice of 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?
Question 9:
Was the Tribunal entitled to refuse to take account of 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?
The issues here are essentially the same as for Question 7. Namely, did the Original Decision effectively dismiss Mr Green’s opinion out of hand or did it give proper consideration to his view as an expert.
Paragraph [63] of the Original Decision is as follows:
The Applicant also argued that the UV of the subject land should be reduced by a further 10% because the risk of contamination would alter the circumstances of the sale. Mr Green said that fewer financiers would be willing to lend and those few would require additional loan security and charge higher fees to offset the greater risk. The result of these impediments to financing would limit the pool of potential buyers and depress the sale price by 10%. 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. 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. Where a specific risk is identified such as the UST then a specific deduction can properly be made. This is also the case where a specific activity is required such as the phase 2 assessment alluded to by Dr Gunton. The cost of this activity has been accepted by the Tribunal as a correct deduction from the UV.
Refshauge J, at [124] of his decision, said that the approach of the Tribunal, as illustrated in [63] “starkly shows the differential treatment accorded to the two valuers”. While I think this may be correct, I think the more important point is that Mr Green’s status as an experienced valuer was effectively ignored.
The Original Decision’s statement that there was no “specific evidence” does not treat Mr Green’s opinion as being evidence. I think this approach is wrong. There is no reason why the opinion of an expert cannot be treated as evidence. Assuming the expert’s credentials are not in question, his expertise can be a precise source of evidence on any particular point. It may be that the opinion is weakened, or perhaps even extinguished, by cross-examination or contrary evidence. That was not the case here.
The Original Decision seems to simply dismiss Mr Green’s opinion because there is no other evidence to support it. This approach is an error which was not corrected in the Appeal Decision. I would place the error in the category of minor errors referred to by counsel for the respondent but note that it is nevertheless sufficient, when taken with other errors, to justify the matter being remitted to ACAT.
Question 10
Was the Tribunal entitled to refuse to take account of 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?
This ground raises an almost identical issue to that raised by Questions 8 and 9. The Original Decision states at [64]:
The Applicant’s closing submission adopted a 10% deduction from the UV for what Mr Green described as “adjoining service station influence”. In his report (Exhibit A9), he allowed a figure of 5% but on analysing the sale of 43-45 Torrens Street he said that it showed a 20% difference in the rate per square metre compared with the sales of 8 Mort Street and 27 Lonsdale Street. He attributed this lower rate to the negative influence of the adjoining service station. The Respondent countered by arguing that this was the result of incorrectly using a plot ratio of 2:1 when it should have been 3:1. It is unnecessary to evaluate these competing arguments because the Tribunal has already concluded that the sale of the Torrens Street property is not a reliable comparative sale because of related party influence. Mr Green did not offer any other comparative sales evidence to support his 10% deduction. The Tribunal does not accept the Applicant has discharged its burden of proof.
In this case, however, I am not convinced that the Original Decision merely rejected Mr Green’s opinion because of an absence of evidence. As I read [64], the Tribunal is not making a specific decision that Mr Green should be rejected for a failure to provide evidence. Although such a conclusion might be thought to arise from the last two sentences of the paragraph, it is necessary for them to be read in light of the decision that “the sale of the Torrens Street property is not a reliable comparative sale because of related party influence”.
I do think an adjoining service station is a relevant factor that should be taken into account as creating a possible deduction. However, the extent of the deduction will be open to the Tribunal in consideration of relevant comparative sales. If the Tribunal does not find a sale to be comparative then, provided it has made that finding on appropriate grounds, its decision to not rely on that evidence will not necessarily create error.
I do not think Question 10 indicates error on the part of the Tribunal either in the Original Decision or the Appeal Decision.
Question 11
Was the approach of the Tribunal to 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 complaint seems to be that the Original Decision did not deal properly with the comparable sales. Firstly, it is said that the wrong comparisons were made and, secondly, that a “hybrid approach” was taken in circumstances which did not justify its use.
The respondent says that the Original Decision placed significant weight on Mr Green’s evidence both in regard to his primary opinion and the concessions that he made. The analysis of the comparable sales begins at [48] of the Original Decision and includes a number of matters that have been discussed above.
In light of the matter being remitted, I do not think it necessary to reach any firm conclusion on this question. I note that, for example, the 5% or 10% issue has already been dealt with, as has the issue of the finance being available on favourable terms.
Final orders
I make the following orders:
(a)The appeal is allowed.
(b)The decision of the ACT Civil and Administrative Tribunal is set aside.
(c)The matter is remitted to the ACT Civil and Administrative Tribunal to be dealt with in accordance with this decision.
(d)The respondent is to pay the appellant’s costs of the appeal.
I will hear the parties if any alternative costs order is sought.
| I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 21 June 2018 |
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