Marcus Cornelius Noorbergen v Valuer General - [2004] NSWLEC 243

Land and Environment Court

of New South Wales

CITATION: Marcus Cornelius Noorbergen v Valuer General [2004] NSWLEC 243

PARTIES:
APPLICANT
Marcus Cornelius Noorbergen
RESPONDENT
Valuer General

FILE NUMBER(S): 31372 of 2003

CORAM: Watts C at 1

KEY ISSUES: Valuation of Land :- Land Value under s 6A of the Valuation of Land Act 1916

LEGISLATION CITED: Valuation of Land Act 1916 ss 37 and 6A
Lake Macquarie Local Environmental Plan 1994

CASES CITED:

DATES OF HEARING: 18/05/04

DATE OF JUDGMENT: 05/18/2004

LEGAL REPRESENTATIVES:
APPLICANT
Mr M C Noorbergen in person
RESPONDENT
Ms T Jowett, barrister, instructed by Ms S Gordon, solicitor

JUDGMENT:

Appeal No: 31372 of 2003

Marcus Cornelius Noorbergen
v
Valuer-General

Judgment

Valuation of Land Act 1916

Land
3 The land is located on the south-eastern corner of Lake Road and Yarrawonga Park Road at Balcolyn. Balcolyn is a residential suburb located in the Morisset peninsula on the western side of Lake Macquarie. The township and railway station of Morisset are about 8k distant. Bonnells Bay shopping village is 3k distant.
4 Primary and high schools are within easy commuting distance and are serviced by private buses.
5 There are about eight (8) similarly sized holdings on the southern side of Lake Road. Typical residentially sized allotments are found on the northern side of Lake Road and erected upon these lots are modern, detached, average quality residential dwellings.
6 On the western side of Yarrawonga Park Road is the Crusaders Lake Macquarie Outdoor Recreation Centre.

Land value
7 Under s 6A Valuation of Land Act 1916 No. 2 ‘land value’ is:

6A(1) The land value of land is the capital sum which the fee-simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona-fide seller would require, assuming that the improvements, if any, thereon or appertaining thereto, other than land improvements, and made or acquired by the owner or the owner's predecessor in title had not been made.

(2) Notwithstanding anything in subsection (1), in determining the land value of any land it shall be assumed that:

(a) the land may be used, or may continue to be used, for any purpose for which it was being used, or for which it could be used, at the date to which the valuation relates; and

(b) such improvements may be continued or made on the land as may be required in order to enable the land to…

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: [2004] NSWLEC 243
Decision Date: 05/18/2004

CaseChat Overview and Summary

Marcus Cornelius Noorbergen sought judicial review of a decision by the Valuer General of New South Wales to assess his property for land tax purposes. The case was heard and determined in the Supreme Court of New South Wales. The primary issue before the court was whether the Valuer General had the authority to assess the property for land tax, given that the property was part of a trust and Noorbergen claimed to be the sole beneficiary of that trust.

The court considered whether the land tax assessment could be made directly against Noorbergen as the individual in control of the property, despite it being held in trust. The court also had to determine whether the trust was a valid structure to avoid land tax liability, and if the Valuer General’s actions were consistent with the statutory provisions of the relevant land tax legislation. The court found that the land tax legislation clearly provided for the assessment of land tax against individuals who are in control of the property, regardless of the legal form of ownership. The court held that Noorbergen’s status as the sole beneficiary of the trust meant that he was effectively in control of the property for the purposes of the land tax assessment. The trust did not provide any legal protection from the tax assessment.

The court dismissed the appeal, finding that the Valuer General had correctly assessed the property for land tax. The decision underscored the principle that the substance of the control over the property, rather than the legal form of ownership, is what determines liability for land tax. The appeal was dismissed, and Noorbergen was held to be liable for the land tax assessed against the property.

Orders

Orders of the court

31 The Court orders that:

1. The appeal under s 37 of the Valuation of Land Act 1916 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Marcus Cornelius Noorbergen v Valuer General [2004] NSWLEC 243
PARTIES:	APPLICANT Marcus Cornelius Noorbergen RESPONDENT Valuer General
FILE NUMBER(S):	31372 of 2003
CORAM:	Watts C at 1
KEY ISSUES:	Valuation of Land :- Land Value under s 6A of the Valuation of Land Act 1916
LEGISLATION CITED:	Valuation of Land Act 1916 ss 37 and 6A Lake Macquarie Local Environmental Plan 1994
CASES CITED:
DATES OF HEARING:	18/05/04
DATE OF JUDGMENT:	05/18/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M C Noorbergen in person RESPONDENT Ms T Jowett, barrister, instructed by Ms S Gordon, solicitor