Kent Street Pty Ltd v Department of Natural Resources and Mines

[2004] QLC 76

LAND COURT OF QUEENSLAND

CITATION:

Kent Street Pty Ltd & Ors v Department of Natural Resources and Mines  [2004] QLC 0076

PARTIES:

Kent Street Pty Ltd and Ors
(appellants)

v.

Chief Executive, Department of Natural Resources and Mines
(respondent)

FILE NOS:

AV2003/0803, AV2003/0795 and AV2003/0905

DIVISION:

Land Court of Queensland

PROCEEDING:

Hearing of an application in the matter of appeals against Shopping Centre Valuations of the Chief Executive, Department of Natural Resources and Mines

DELIVERED ON:

15 September 2004

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

JUDICIAL REGISTRAR:

Mr BR O'Connor

ORDERS:

     1.        1.    Within seven (7) days of this order, the appellants disclose any documents used to brief WP Partnership or MPN relating to ground conditions at the Chermside Shopping Centre  site obtained by the appellants in the course of carrying out improvements on the site.

2.    Within seven (7) days of this order, the appellants disclose advice from MPN (if in documentary form) provided to WP Partnership in assessing likely ground conditions and site preparation required, for any hypothetical development of the Chermside Shopping Centre site.  This order is subject to any contractual restrictions on the appellants obtaining, as of right, access to such.

APPEARANCES:

Mr R Traves SC with him Mr J Horton, for the appellants
Mr D Frazer QC with him Mr T Quinn, for the respondent (applicant)

SOLICITORS:

Minter Ellison for the appellants
Legal Counsel, Legal Services, Department of Natural Resources and Mines, for the respondent

1. The appellants have lodged appeals under the Valuation of Land Act 1944  against determinations by the Chief Executive of the unimproved value of various parcels of land throughout the State.  All properties have situated on them major shopping complexes.  The relevant date of valuation in all appeals is 1 October 2002.

2. As a further interlocutory step in the proceedings, the respondent, by application dated 7 September 2004, seeks disclosure of various material referred to in a letter of 2 September delivered to the appellants' solicitors.  At the hearing of this application (and matters relating to an early application for further particulars) on 9 September 2004, all matters the subject of the applications, except one, were either withdrawn or agreed to be subject of consent orders.

3. The outstanding matter on which the parties seek a Court order is within the heading "Other Matters" of the Department of Natural Resources and Mines' letter to Minter Ellison of 6 September 2004.  The material sought to be disclosed relates to ground works on the Chermside Shopping Centre site. 

4. My perusal of the material before the Court on this issue suggests the parties are perhaps at cross-purposes as to what is sought to be disclosed.  (See NRM letter of 6 September 2004 under the heading "Other Matters", reply of Minter Ellison of 8 September under the same head, p.8 of the outline of address by the appellants' counsel and transcript pp.16-27 and pp.94-96.)

5. In an affidavit of Amanda Jane McDonnell of 27 January 2004 relating to the Chermside appeal there is exhibited, as part of a s.35A application, a report of WT Partnership which, inter alia, makes reference to obtaining advice on the likely ground conditions (presumably at the Chermside site) from consulting engineers MPN Group Pty Ltd (see p.137 of affidavit).  The respondent suggests that the document used by the appellants to brief consultants, including data obtained by it in the course of carrying out improvements on the site, has not been disclosed.  It is suggested that a contractor, performing extensive redevelopment works, would have addressed the cost of dealing with such aspects as acid sulphate soils. 

6. The appellants state, through Mr Bowie, that the MPN written advice relates to the Telstra site adjacent to the shopping centre which was acquired by Westfield and is one of the sales.  Westfield did not carry out improvements to the Telstra site.

7. The appellants also indicate that development work on Chermside took place at various times and stages over a 30 to 40-year period and the current owners were not responsible for such.  Records of site works would be unlikely to be available.  The appellants further state that the advice relating to ground works provided by MPN to WT Partnership on the Chermside s.35A application related to hypothetical site development works, if the site were to be developed from scratch; it does not relate to any actual works performed in various stages over many years (Transcript p.18).

8. I consider what should now be disclosed - if it has not already been done so - is material in the appellants' possession or control which may have been produced to WT Partnership, or directly to MPN, relevant to site works at the Chermside Shopping Centre.  (It may be some was produced for more recent developments.)  If such material is with either WT Partnership or MPN it would seem the appellants should be able to have it returned to them under the consulting engagement contract.  Further, the MPN advice on the hypothetical development (if such is in documentary form) should also be disclosed, unless there is a provision in the contractual arrangements that would prevent such being able to be disclosed by the appellants.

9. As counsel for the respondent stated in submissions on the 9 September hearing, the current circumstances appear to be distinguishable from those applying when a order was sought for the appellants to produce material in the possession of PWC.  In that case an order was refused.

Orders

1.Within seven (7) days of this order, the appellants disclose any documents used to brief WP Partnership or MPN relating to ground conditions at the Chermside Shopping Centre  site obtained by the appellants in the course of carrying out improvements on the site.

2.Within seven (7) days of this order, the appellants disclose advice from MPN (if in documentary form) provided to WP Partnership in assessing likely ground conditions and site preparation required, for any hypothetical development of the Chermside Shopping Centre site.  This order is subject to any contractual restrictions on the appellants obtaining, as of right, access to such.

BR O'CONNOR

JUDICIAL REGISTRAR