Graham Trilby Pty Ltd v Valuer-General (No 2)

[2011] NSWLEC 75

Land and Environment Court

New South Wales

Medium Neutral Citation:	Graham Trilby Pty Ltd v Valuer-General (No 2) [2011] NSWLEC 75
Hearing dates:	20 April 2011
Decision date:	20 April 2011
Jurisdiction:	Class 3
Before:	Biscoe J
Decision:	Respondent's application to vary decision as to the interest rate period is dismissed.
Catchwords:	VALUATION OF LAND:- application to change decision as to interest period in hypothetical development calculations in light of new evidence.
Cases Cited:	Graham Trilby Pty Ltd v Valuer-General [2011] NSWLEC 68 Graham Trilby Pty Ltd v Valuer General [2009] NSWLEC 1087
Category:	Procedural and other rulings
Parties:	Graham Trilby Pty Ltd (Applicant) Valuer-General (Respondent)
Representation:	Mr I Hemmings (Applicant) Mr J Maston (Respondent) McCabe Terrill Lawyers (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	30412/10; 30413/10; 30414/10

EX TEMPORE Judgment

1. I allowed these valuation appeals for the base dates 1 July 2007, 2008 and 2009 on 15 April 2011: Graham Trilby Pty Ltd v Valuer-General [2011] NSWLEC 68. I directed the parties to submit agreed or competing draft orders to give effect to my judgment, together with full hypothetical development calculations in order that my valuations would be transparent. Only some elements of the hypothetical development calculations leading to the valuations were in controversy before me. The rest were agreed.

1. I am now dealing with an oral application by the respondent, the Valuer-General, to change my decision with respect to one of the contentious elements in those calculations, the interest rate period, in light of new evidence: see [59] - [69] of my judgment.

1. I concluded that the interest period was 21 months (9 + 12 (ie 24 2)). The nine months represented the development application (DA) assessment period. The 24 months represented the development and selling period. I noted that the uncontradicted evidence of the Valuer-General's valuer, Mr Maundrell, was that the agreed development and selling period in the 2006 Appeal was two years: at [63]. Mr Maundrell was also the Valuer-General's valuer in the 2006 Appeal: Graham Trilby Pty Ltd v Valuer General [2009] NSWLEC 1087. The interest rate period was not in contention in the 2006 Appeal and therefore was not addressed in the Commissioner's judgment in the 2006 Appeal.

1. On the last day of the hearing the Valuer-General queried whether Mr Maundrell's evidence might be incorrect upon an objective scrutiny of the material before the Court in the 2006 Appeal. Accordingly, leave was sought and granted for the parties to inspect the Court file in the 2006 Appeal and, within three working days, to make any submissions and tender evidence arising from that inspection which might affect the accuracy of Mr Maundrell's evidence. That leave was not exercised.

1. Upon the proceedings being subsequently listed to consider draft orders, the Valuer-General sought and obtained an extension of time to exercise that leave.

1. The Valuer-General has now placed before me extracts from hypothetical development calculations of the applicant's valuer and of Mr Maundrell in the 2006 Appeal (respectively Exhibits F and 5 in the 2006 Appeal) in support of an oral application that I change my decision as to the interest rate period. Counsel have done their best to interpret this material but there is no agreement as to what I should make of it.

1. Mr Maundrell's calculations in the 2006 Appeal at one point were expressed to be for a period described as "Full rate 6 months DA approval + half development & selling period - 18 months". It appears from an earlier entry in the same document that half the development and selling period (there described as the development and marketing period) was one year. If it be assumed that his reference to 6 months was to what was called in the current proceedings the "development application assessment period", then it appears that the only difference between my conclusion as to the interest period and the position taken by Mr Maundrell in the 2006 Appeal was that I found the DA assessment period to be nine months whereas he was contending for six months.

1. I turn to the calculations of the applicant's valuer in the 2006 Appeal (Exhibit F). He calculated holding charges over "development + selling period (total 15 months)". This appears to mean a six month development assessment period plus half of an 18 month selling period, ie nine months, giving a total of 15 months.

1. This limited material does not evidence agreement as to the interest rate period. Any agreement should be apparent from a full hypothetical development calculation which presumably was carried out to directly support the Commissioner's conclusion as to value in the 2006 Appeal. However, such a calculation cannot now be found.

1. It appears that the interest rate period in the 2006 Appeal was agreed because the Commissioner in his judgment did not treat it as contentious.

1. I am not satisfied that Mr Maundrell's evidence before me was incorrect that in the 2006 Appeal the agreed development and selling period was two years. Nor am I persuaded that I should depart from my decision that the interest period in the current appeals is 21 months.

1. Accordingly, the Valuer-General's oral application that I change my decision as to the interest rate period is dismissed.

1. By consent, I direct that the matter be listed before me at 9.30 am on 28 April 2011 to make final orders. The parties are to submit agreed or competing orders to my Associate beforehand, together with a full hypothetical development calculation.