Jensen v Valuer-General

Case [2024] QLAC 3

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Jensen & Anor v Valuer-General [2024] QLAC 3

PARTIES:

Stewart Christian Jensen and Matthew Ronald Jensen as trustees

(appellants)

v

Valuer-General

(respondent)

FILE NOs:

LAC004-23 and LAC005-23
Land Court No LVA198-21

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Appeal

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

12 December 2024

DELIVERED AT:

Cairns

HEARD ON:

29 August 2024 at Cairns

THE COURT:

Henry J

WA Isdale, Member of the Land Court

JR McNamara, Member of the Land Court

ORDERS:

1.   In respect of appeal, LAC004-23:

(a)     the appeal is allowed;

(b)     the order of the Land Court of 29 September 2023, that the site value was $615,000 as at the date of valuation 1 October 2020, is revoked and, in substitution thereof, it is ordered the unimproved value was $600,000 as at the date of valuation, 1 October 2020;

(c)     the respondent will pay the appellants’ costs of and incidental to the appeal, to be assessed, if not agreed, on the standard basis.

2.   In respect of appeal, LAC005-23:

(a)   the appeal is dismissed;

(b)  the appellants will pay the respondent’s costs of and incidental to the appeal, to be assessed, if not agreed on the standard basis.

CATCHWORDS:

REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – EVIDENCE – where the appellants contend their 2020 unimproved valuation of $640,000 was excessive and lodged an objection to the Land Court – where the Land Court allowed the appeal and reduced the valuation to $615,000 – where the appellants do not agree with that decision and appeal both that decision and the ensuing costs decision to the Land Appeal Court – where the appellants’ primary relief sought is that the valuation be $400,000 – whether the court erred in its reliance upon the evidence of the expert valuer – whether the court erred in the weight it placed upon comparison sale numbered 1 – whether the court erred regarding the requirement of ss 45 and 46 Land Valuation Act – whether the court erred in determining the highest and best use of the Jensens’ property – whether the court’s decision was affected by apprehended bias

Land Court Act 2000 (Qld) s 56, s 57A
Land Valuation Act (Qld) s 45, s 46, s 57, s 147, s 151, s 155, s 157, s 169, s 170, s 171, s 214
Judiciary Act 1903 (Cth) s 78B

Allesch v Maunz (2000) 203 CLR 172, cited
BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2009] QLAC 5, cited
BWP Management limited v Valuer-General [2019] QLAC 4, cited
Coe v The Commonwealth (1979) 24 ALR 118, 129, cited
Mabo v Queensland (No 2) (1992) 175 CLR 1, cited
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, cited
Department of Transport and Main Roads v Mahoney [2014] QLAC 1, cited

DL v The Queen (2018) 266 CLR 1, cited

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Details
AGLC
Jensen v Valuer-General [2024] QLAC 3
Case
[2024] QLAC 3
Decision Date

CaseChat Overview and Summary

The Jensens appealed the valuation of their property against the Valuer-General, contesting the valuation of $640,000 set in 2020, which they deemed excessive. Their objection to the Land Court resulted in a reduced valuation of $615,000, yet they remained unsatisfied with this outcome. Consequently, they escalated their appeal to the Land Appeal Court, seeking a valuation of $400,000. The legal issues at hand were whether the court erred in its reliance on the expert valuer’s evidence, the weight assigned to comparison sale number 1, the interpretation of sections 45 and 46 of the Land Valuation Act, the determination of the highest and best use of the Jensens’ property, and whether the court’s decision was influenced by any perceived bias.

The Land Appeal Court examined the evidence and the reasoning applied by the Land Court. It was noted that the Land Court had a duty to assess the valuation using the best available evidence, even when such evidence was imprecise. However, the court identified an error in the Land Court's decision to account for a rise in property value between 2018 and 2020, as the expert valuer had opined that the market was steady during this period. This error meant the reduction made in the valuation was insufficient. The Land Appeal Court also assessed the weight given to comparison sale number 1, the interpretation of the relevant sections of the Land Valuation Act, and the determination of the highest and best use of the Jensens’ property. The court found no evidence of bias influencing the Land Court’s decision.

The Land Appeal Court found that the Land Court erred in several respects, leading to the reduction in valuation being inadequate. Consequently, the court allowed the appeal regarding the valuation amount, reducing the valuation to $600,000, and ordered the Valuer-General to pay the Jensens’ costs for the appeal. The court dismissed the appeal regarding the costs decision, and ordered the Jensens to pay the Valuer-General’s costs for that part of the appeal.

Orders

Orders of the court

1. In respect of appeal, LAC004-23:

(a) the appeal is allowed;

(b) the order of the Land Court of 29 September 2023, that the site value was $615,000 as at the date of valuation 1 October 2020, is revoked and, in substitution thereof, it is ordered the unimproved value was $600,000 as at the date of valuation, 1 October 2020;

(c) the respondent will pay the appellants’ costs of and incidental to the appeal, to be assessed, if not agreed, on the standard basis.

2. In respect of appeal, LAC005-23:

(a) the appeal is dismissed;

(b) the appellants will pay the respondent’s costs of and incidental to the appeal, to be assessed, if not agreed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is not to the point that the available evidence, including sale 1, was imprecise in the assistance it gave. The learned Member was obliged to determine the reduction she considered necessary, doing her best with such evidence as was available. Her Honour’s obligation in making that assessment was akin to the obligation on a judge assessing damages, as explained in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 83:The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J went so far as to say that the “assessment of damages … does sometimes, of necessity, involve what is guesswork rather than estimation”. Where precise evidence is not available the court must do the best it can do. (emphasis added) Unfortunately, in proceeding to make her determination, using sale 1 as the closest comparable guide, the learned Member made an error of fact, observing: [59] The sale which has the closest value to the subject land is Sale 1. That sale was in 2018, so there must be some allowance for a rise in value from 2018 to the valuation date of 2020. Sale 1 is superior in all ways except for the land area and location. The land area is 42% of the land area of the subject land. The usable area of the subject land is greater than the entire area of Sale 1. I agree with Mr Moroney that the value of the subject land is a little less than the value of Sale 1.[60] Given my findings about Mr Moroney’s errors, although minor, the value of the subject land must be less than $640,000. The Jensens are not valuers, so their evidence of valuation has not assisted me. Doing the best I can, I assess the value of the Jensens’ land at $615,000. (emphasis added) The above underlined passage indicating there must be some allowance for a rise in value was likely incorrect for the following reasons. After summarising the comparable advantages and disadvantages of the properties, the subject of the comparable sales, Mr Moroney opined:In my expert opinion, the market was steady from the period 2018 to 2020 and the unimproved value of the subject property should be slightly less than $680,000 (sale 1). (emphasis added) The ‘steady’ market referred to in the above passage does not suggest, for the purpose of the comparable sale exercise, that there would have been any material rise in value between the sale year and valuation year. Indeed, Mr Moroney’s use of sale 1 as a comparable sale, when it was so removed in time, would have been of limited utility if there had been a material rise in value. It follows that in deploying sale 1 as a comparable sale no allowance should be made for a rise in value between the time of that sale and the valuation era. The learned Member therefore erred in making ‘some allowance’ for a rise. That was not the only variable in the mix of variables influencing the use of sale 1 in quantifying the extent of the reduction of the valuation. But the making of such an allowance, however modest it may have been, must logically mean the reduction necessary to make the correct valuation should have been greater than the reduction made by the learned Member.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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