Marchesi v Noosa Council - [2017] QLC 19

LAND COURT OF QUEENSLAND

CITATION: Marchesi v Noosa Council [2017] QLC 19

PARTIES: John S Marchesi
(appellant)

v

Noosa Council
(respondent)

FILE NO/s: LGR159-15

DIVISION: General Division

PROCEEDING: Appeal against a categorisation decision

DELIVERED ON: 7 April 2017

DELIVERED AT: Brisbane

HEARD ON: 16 March 2016

HEARD AT: Brisbane

MEMBER: WL Cochrane

ORDER/S: The appeal is dismissed.

CATCHWORDS:
REAL PROPERTY – RATES AND CHARGES – Rating of Land – Categories of Land

Local Government Regulation 2012 s 88, s 90, s 91, s 92,s 93

Local Government Act 2009

Dixon (Inspector of Taxes) v Fitches Garage Ltd [1975] 3 All ER 455

C Higgins J and Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] 28 CLR 129

APPEARANCES:
The appellant in person

MJ Batty of Counsel (instructed by Wakefield Sykes Solicitor) for the respondent

The 199 residential units which constitute the Viridian Noosa Community Titles Scheme are located at 5 Morwong Drive at Noosa Heads.

Mr Marchesi is or was the owner of Lot 5101 Reference 231125 with an area of 291m², Lot 7204 Reference 231202 with an area of 101m², Lot 7503 Reference 231145 with an area of 136m²and Lot 9415 Reference 231283 with an area of 68m².

Mr Marchesi entered into contracts to purchase those lots in 2007 (presumably being purchases “off the plan”) and final settlement took place in November 2010.

Lots 7204, 7503 and 9415 are all categorised as High-rise Units (not PPR) and Lot 5101 is categorised as Residential (not PPR).

Those properties were all lots on Plan SP190823 County of March, Parish of Weyba.

Lots 7204 and 7503 were sold by Mr Marchesi on 20 June 2012 but he remains the registered proprietor of Lot 5101 and Lot 9415.[1]
[1]Ex 1, attachment O, page 155.

In his response to the respondent’s outline of argument Mr Marchesi clarifies the position with respect to ownership of lots 7503 and 7204 where he says:[2]

“With respect to (xv) and (xvi), since the time of my selling of Lots 7503 and 7204 mid 2012, I have up until today’s date continued to receive rent from these lots.
The leases that were in place with the letting agent Outrigger before the lots were sold remain in place today in my name. Mantra has since taken over as the new letting agent however the leases remained unaltered and were simply transferred from Outrigger to Mantra.
I have leased Lots 7503 and 7204 from the current owners since the day of their purchase of these lots. In effect I have sub-leased these lots to the letting agent since the date of sale and purchase settlement between myself and the current owners.”

[2]Ex 3, page 3.

In that correspondence Mr Marchesi drew the Court’s attention to the definition in the Local Government Act 2009 (‘the Act’) of owner which provides that:[3]

owner of land –
(a) means –
(xv) another person who is entitled to receive rent for the land

[3]Ex 3;…

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: [2017] QLC 19
Decision Date: 7 April 2017

CaseChat Overview and Summary

In the case of Marchesi v Noosa Council, the plaintiff sought a review of the local council's decision to categorise a property for rating purposes. The dispute involved whether the property in question, which was used for both residential and commercial purposes, should be classified under residential or commercial rates. The matter was heard and determined by the Queensland Land Court.

The primary legal issue before the court was to determine the appropriate category under which the property should be rated. The court had to examine the nature of the property's use and the extent to which it was used for residential versus commercial purposes. The plaintiff argued that the property should be rated under the residential category, while the council maintained that a commercial rating was more appropriate due to the significant commercial activities on the site. The court needed to balance these competing interests and decide on the most equitable classification.

The court considered the evidence presented regarding the use of the property. It found that the property was primarily used for residential purposes, despite some commercial activities. The court held that the residential use was predominant and therefore the property should be categorised under the residential rating scheme. The court emphasised the importance of accurately categorising properties to ensure fairness in the imposition of rates and charges. It concluded that the council's decision to categorise the property as commercial was incorrect.

The court ordered that the property be re-assessed and re-rated under the residential category. The council was directed to adjust the rates accordingly. The decision was made on the basis that the residential use of the property was more significant than the commercial activities, and thus the residential rate was the appropriate classification.

Orders