Laresu Pty Limited v Valuer-General
[2012] NSWLEC 213
•29 August 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Laresu Pty Limited v Valuer-General [2012] NSWLEC 213 Hearing dates: 29 August 2012 Decision date: 29 August 2012 Jurisdiction: Class 3 Before: Pain J Decision: The Court grants leave for an extension of time for the Applicant to commence this appeal.
Catchwords: PROCEDURE - grant of extension of time to file appeal against land valuation Legislation Cited: Valuation of Land Act 1916 s 6A, s 7B, s 14(2), s 37 Cases Cited: Jassls Pty Limited v Valuer General [2006] NSWLEC 59 Category: Procedural and other rulings Parties: Laresu Pty Limited (Applicant)
Valuer-General (Respondent)Representation: Mr D Miller SC (Applicant)
No appearance (Respondent)
Gadens Lawyers (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 30784 of 2012
EX TEMPORE Judgment
I have before me a Notice of Motion filed on 2 August 2012 in which the Applicant in these Class 3 proceedings, an appeal under s 37 of the Valuation of Land Act 1916 (the VL Act), is seeking leave for an extension of time to commence this appeal.
Under s 38(1) such an appeal must be commenced within 60 days after the date of issue of the notice of the Valuer-General's determination of the objection. Under s 38(2) the Court may allow a person to appeal after the 60 day period. It is clear the Court does have discretion to grant an extension of time in appropriate circumstances. The Valuer-General has not appeared today and neither consents nor objects to this application. I note that the 60 days expired on 15 July 2012.
In relation to relevant principles to consider in relation to such applications I have been provided with Jassls Pty Limited v Valuer General [2006] NSWLEC 59, a decision of the Chief Judge where he considered this exact issue. His Honour helpfully sets out at [21] - [29] relevant principles. He surveys at [21] - [23] a number of principles considered in the High Court and the New South Wales Court of Appeal. His Honour then considers how these principles have been applied specifically in decisions in this Court.
His Honour helpfully summarises the relevant principles at [29] as the Applicant's counsel referred to. The matters to which I should have regard are the length of delay in seeking to commence the appeal, the reason for the delay, the extent of prejudice if any, and whether there is an arguable case.
In support of the application I have been provided with an affidavit of Mr Grimble dated 2 August 2012. Mr Grimble is the solicitor on the record for the Applicant in these proceedings. He identifies the length of delay is 16 days. He identifies at par 8 the reasons for delay which relate to the absence of a director of the Applicant at a crucial time during June, July and August 2012 making the obtaining of instructions about a complicated matter difficult.
The difficulties in understanding the precise terms of the stratum lot which is the subject of this appeal and the complexity in obtaining relevant information in order to enable an appeal to be commenced are identified. Mr Grimble also addressed the issue of the extent of prejudice and there does not appear to be any. The approach of the Valuer-General to this Notice of Motion suggests prejudice is not an issue.
I have also been provided with an affidavit of Ms Wauchope, a solicitor employed by Mr Grimble, sworn 28 August 2012 in which she identifies relevant sections of the VL Act to which I will return. The affidavit has two exhibits being relevant plans identifying the nature of the stratum of the land. It is essentially a two storey structure constructed above Bankstown railway station supported outside the lot by numerous stanchions. In particular I was referred to plan 9 in the exhibit to Ms Wauchope's affidavit as indicative of the stratum lot.
In relation to the substance of the appeal, it appears there is an issue based on the valuation report prepared for the Applicant attached to Mr Grimble's affidavit as to whether the valuation assessment should be under s 7B of the VL Act which refers to land value of strata. I note the Valuer-General's report refers to s 6A which is one error the Applicant wishes to raise in these proceedings.
Section 7B sets out the valuation basis for strata land. One issue that does need to be raised in this appeal is the operation, in the context of strata land, of s 14L(2) of the VL Act. That section provides that the Valuer-General is to ascertain a reasonable allowance for profitable expenditure by the owner or occupier of any visible and effective improvements which although not in the stratum have been constructed exclusively for the benefit of the stratum. Supports for the Applicant's stratum lot which are outside the lot would appear to be referrable under s 14L.
This precise issue is raised in the report prepared as an objection on behalf of the Applicant in relation to the Valuer-General's assessment of $1.8 million in land value. I note that s 14L is not discussed at all in the Valuer-General's consultant's report in reply to that objection. It does appear to be a live issue in the proceedings and a matter which does appear arguable.
Turning therefore, in light of that supporting evidence, to the issues that I need to consider, the length of delay of 16 days is not substantial in the context of these proceedings. The reason for delay is more than adequately identified in the affidavit of Mr Grimble at par 8 given the complexity of the stratum lot which is being dealt with and the difficulty in obtaining information relating to that.
As already noted the Valuer-General has not appeared to identify any prejudice. In Jassls at [35] the Chief Judge identifies the role of the Valuer-General in appeals of this nature and says that:
It is difficult to conceive of what prejudice could ever be suffered by the Valuer-General as a respondent to an appeal under s 37(1) of the Valuation Act.
That observation applies to this matter also. I have also concluded above that there is an arguable case.
I consider that the order seeking an extension of time to lodge an appeal in the Applicant's Notice of Motion should be made. I will grant leave for an extension of time for the Applicant to commence this appeal.
Order
The Court grants leave for an extension of time for the Applicant to commence this appeal.
Decision last updated: 24 September 2012