HAFEZ and VALUER GENERAL - [2012] WASAT 103

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: VALUATION OF LAND ACT 1978 (WA)

CITATION: HAFEZ and VALUER GENERAL [2012] WASAT 103

MEMBER: MS L WARD (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 11 MAY 2012

FILE NO/S: DR 318 of 2011

BETWEEN: HAFEZ HAFEZ
AGNUS HAFEZ
Applicants
AND
VALUER GENERAL
Respondent

Catchwords:

Valuation of land - For the purpose of rating - Gross rental value - Residential property in suburban Perth - Multiple dwellings - Expert assessment by valuer - Nonexpert assessment by property owner - Difference of $1,820 per year - Expert evidence preferred by Tribunal

Legislation:

State Administrative Tribunal Act 2004 (WA), s 27(2), s 31(2)
Valuation of Land Act 1978 (WA), s 4(1), s 6(2)(a), s 18, s 24, s 26, s 32, s 33

Result:

Application dismissed
Decision of respondent dated 24 January 2012 affirmed

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Mr R Wickens (Acting as Agent)

Solicitors:

Applicants: Self-represented
Respondent: N/A

Case(s) referred to in decision(s):

Duffy -v- The Minister for Planning [2003] WASCA 294
Watson & Anor and ValuerGeneral [2006] WASAT 224

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The owners of a residential property in Morley challenged the Valuer General's determinations of the gross rental value as at 1 August 2009. The Valuer General determined the gross rental value of the property at $42,900 as at the valuation date. The owners contended that the gross rental value of the property was $41,080 per year as at the valuation date. That is, the owners contended that the gross rental value was $1,820 per year less than the Valuer General's assessment.
The Tribunal found that the comparable rental evidence supported the Valuer General's expert valuation. The Tribunal relied on the four comparable rentals relied on by the Valuer General. The owners did not provide any independent expert valuation evidence to contradict the Valuer General's expert opinion, although one of the owners of the property provided his personal view of what he thought were comparable properties.
The Valuer General's decision of 24 January 2012 was affirmed and the application for review was dismissed.

The property

Dr Hafez Abdel Razzek Hafez and Ms Agnes HafezErgaut (owners) are the registered proprietors of Lot 26 on Diagram 30282 known as No 45 Kennedy Road, Morley (property). The property has an area of 1,224 square metres.
The property is a residential block with three dwellings on it referred to below as Units A, B and C. The dwellings include the original home built in the 1960s (Unit A), a three bedroom, one bathroom unit built in the early 1990s (Unit B), and Unit C, which was built in 1997 and is identical to Unit B, with some differences regarding the security features.

Valuer General's assessment of Gross Rental Value

This review concerns an objection made by Dr Hafez in respect to the valuation of the gross rental value (GRV) for the property as at 1 August 2009. The GRV of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WASAT 103
Decision Date: 11 MAY 2012

CaseChat Overview and Summary

The matter before the Tribunal was an application for review of a decision made by the Valuer General regarding the gross rental value (GRV) of a residential property in suburban Perth. The applicant, Dr Hafez, objected to the Valuer General's assessment of the GRV of Unit A, arguing that it should be reduced from $285 per week to $250 per week. The Tribunal was tasked with deciding whether the Valuer General's assessment was correct and whether Dr Hafez's objections were valid.

The primary legal issue before the Tribunal was whether the Valuer General's assessment of the GRV of Unit A was correct and whether Dr Hafez's objections were valid. Dr Hafez argued that the Valuer General's assessment was incorrect due to several factors, including improvements made to the property since the assessment, the size of the block on which the unit was situated, the amenities of the comparable properties, and the location of the comparable properties. The Tribunal needed to determine whether these factors were valid reasons to reduce the GRV assessment and whether Dr Hafez's objections were supported by evidence.

The Tribunal found that the Valuer General's assessment of the GRV of Unit A was correct and that Dr Hafez's objections were not supported by evidence. The Tribunal noted that Dr Hafez had not produced any independent expert evidence to rebut the Valuer General's expert opinion and that there was no evidence before the Tribunal that Dr Hafez had the qualifications and experience to exercise the powers under the Valuation of Land Act 1916 (WA). The Tribunal preferred the expert evidence of the Valuer General over Dr Hafez's non-expert assessment.

The Tribunal dismissed Dr Hafez's application for review and confirmed the Valuer General's assessment of the GRV of Unit A at $285 per week.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In relation to Unit A, as set out in the Valuer General's letter dated 24 January 2012, it relied on rental evidence from four properties as follows:Rental evidence as detailed in notice of decision on objection report dated 24 August 2011•40 Kennedy Road[.]3 bedroom brick tile residence built 1964[.]Rent: $360pw, set August 2009[.]Current GRV $16,120 ($310pw)[.]•2 Tara Street (cnr Kennedy Road)[.]3 bedroom brick tile residence built 1964[.]Rent: $370pw, set July 2009[.]Current GRV $16,120 ($310pw)[.]Additional rental evidence•53 Kennedy Road[.]2 bedroom brick tile residence built 1965 with a 3rd bedroom added in 1969[.] With rear addition is a larger and more functional layout than the subject unit[.]Rent: $320pw, set December 2008[.]Current GRV $16,120 ($310pw)[.]•6B Kennedy Road[.]2 bedroom brick tile duplex unit built 1969[.]Rent: $285pw, set March 2009[.]Current GRV $14,040 ($270pw)[.] Dr Hafez, in his letter received by the Tribunal on 6 February 2012, maintained the owners' objection in relation to the GRV assessment of Unit A only. Dr Hafez submits that the GRV in relation to Unit A should be reduced from $285 per week to $250 per week. The Tribunal understands from Dr Hafez's letter that he maintained his objection to the GRV assessment of Unit A on the following four main grounds, which the Tribunal has grouped as follows:•ImprovementsImprovements have been made to the property since 1 August 2009 and, therefore, the improvements should not be included in the Valuer General's assessment based on an inspection in December 2011. Also, the Valuer General did not make allowances for some detriments (age, air conditioning, garage etc).•Block sizeThe comparative properties relied on by the Valuer General are on blocks of between 700 square metres and 900 square metres, whereas Unit A is on a block of 378 square metres. Other houses in Kennedy Road, namely, No 52 and No 54, are on full size blocks and have GRVs of $12,900 and $14,820. Also, one would expect a duplex to have a higher GRV than a triplex or a unit.•AmenitiesAmenities on some of the comparable properties, particularly No 40 Kennedy Road, seem more substantial than Unit A; for example, lot size, building size and amenity. Also, no internal photographs of comparable properties.•Location of comparable propertiesOne would expect a property one street closer to the Galleria Shopping Centre in Drake Street, Morley, would command a higher GRV based on it being closer the shops and closer to public transport. However, Dr Hafez says that this is not the case based on the GRVs of most houses and duplexes in Drake Street, which he says are below the GRV for Unit A. Dr Hafez submits that a property he knows of on the oceanfront at Hillarys Boat Harbour has a GRV of around $20,000. In this application for review, the Tribunal has before it the Regional Valuer's assessment of GRV completed on behalf of the Valuer General, which is an expert opinion. While Dr Hafez has challenged the methodology and some assumptions in the valuer's opinion, he has chosen not to produce any independent expert evidence to rebut the Valuer General's expert opinion. The Tribunal notes that there is no evidence before the Tribunal that Dr Hafez has 'qualifications and experience appropriate to the exercise of the powers' under the VL Act: see s 6(2)(a).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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