NE Christie (NSW) Pty Limited v Department of Natural Resources, Mines and Energy

Case •

[2004] QLC 63

•

28 July 2004

LAND COURT OF QUEENSLAND

CITATION: NE Christie (NSW) Pty Limited v Department of Natural Resources, Mines and Energy  [2004] QLC 0063
PARTIES: NE Christie (NSW) Pty Limited
(applicant)
v.
Chief Executive, Department of Natural Resources, Mines and Energy
(respondent)
FILE NO: AV2002/0337
DIVISION: Land Court of Queensland
PROCEEDING: Hearing of an application
DELIVERED ON: 28 July 2004
DELIVERED AT: Brisbane
HEARD AT: Brisbane
MEMBER Dr NG Divett
ORDER: It is ordered in respect of the appeal against an annual valuation at 1 October 2001 of property at 300 Adelaide Street, Brisbane, and described as Lot 21 on RP 133092, that the name of the current owner Trust Company of Australia Limited be exchanged for the name of Christie (NSW) Pty Limited as the appellant in that matter.
CATCHWORDS: Practice – Appeals – Misdescription – Power to correct a mistake in the name the owner – Mistaken identity – Uniform Civil Procedures – Rule 376(2).
APPEARANCES: Mr K Rose for the appellant
Mr MJ Burns for the respondent
SOLICITORS: Gadens Lawyers for the appellant
Department of Natural Resources, Mines and Energy for the respondent

Background

  1. This matter relates to property located at 300 Adelaide Street, Brisbane, and described as Lot 21 on RP 133092, Parish of North Brisbane.  The matter before the Court relates to the preliminary question of whether the Court has jurisdiction to hear the merits of the matter in respect of an appeal against an annual valuation at 1 October 2001 under the Valuation of Land Act 1994 (the Act). 

  2. Mr K Rose of Gadens Lawyers appeared for the appellant.  Mr MJ Burns of Counsel, instructed by the Department of Natural Resources, Mines and Energy, appeared for the respondent.

The Application –

  1. The appellant seeks the permission of the Court to substitute the Trust Company of Australia Limited as the true appellant in respect of the Notice of Appeal, which was inadvertently incorrectly lodged in the name of the previous owner of the property as “Christie (NSW) Pty Limited”.  The appellant argues that:

    “At the commencement of the appeal and earlier lodgement of the objection notice in the name of the previous owner NE Christie (NSW) Pty Limited (the party to whom the notice of valuation had been issued) and the subsequent decision on the objection by the respondent in that name also, were genuine mistakes but it was clear to all parties that what was intended to be lodged and was being lodged was an objection against the original notice of valuation and that subsequent disallowance and an appeal in consequence thereof, and that this was intended to be lodged on behalf of the true owner of the property.”

  2. Mr Burns for the respondent resists such an approach, noting that the name of the owner was incorrectly noted at the time of objection, and has been continued incorrectly to the present time.  Mr Burns argues therefore that the owner never objected, and also never appealed against the valuation.

The Facts:

  1. The following chronology of events assists in understanding the circumstances of the appeal, as disclosed in affidavit by Luke Douglas Hinckfuss, a solicitor for the appellant. 

  2. The valuation date for the appeal was 1 October 2001, at which date the owner was “Christie (NSW) Pty Limited”.  The valuation notice issued from the Chief Executive on 26 February 2002 to the owner as notified on the departmental computer records.  The owner at that date continued to be “Christie (NSW) Pty Limited”. 

  3. Following a transfer agreement on 29 January 2002, on 14 March 2002 the subject land transferred from the previous owner “Christie (NSW) Pty Limited” to the current owner “Trust Company of Australia Limited”.  A search of the Titles Office records of the Department of Natural Resources, Mines and Energy confirms that date of transfer of ownership. 

  4. On 22 March 2002, Mr G Jackson, a director of m3properties, was directed to lodge an objection by the agent for the owner in this matter (Macquarie Bank Limited).  Mr Jackson lodged a formal notice of objection (Form 58) to the valuation on behalf of the “owner” of the property.  Mr Jackson apparently inadvertently referred to the owner in the name of the former owner.  There was evidence that Mr Jackson at that stage, had been advised of the change of ownership some 8 days prior to the lodging of the Notice of Objection.  The respondent’s departmental record of the Notice of Objection (Form 58) shows the owner’s name as the former owner.  Mr Jackson apparently incorrectly showed the name of the former owner rather than the recently changed new owner. 

  5. On 30 June 2002 the respondent department wrote to NE Christie (NSW) Pty Limited at PO Box 7097, Brisbane, advising of the decision on the objection, and reducing the valuation from $4,000,000 to $3,800,000.  That letter was addressed to “Dear Owner” which would suggest that at that date, at least three months after the date of transfer, the departmental valuation record showed the owner to continue in the name of the former owner. 

  6. On 26 July 2002 Mr Jackson, acting for the “owner”, lodged a formal Notice of Appeal with this Court in the name of “NE Christie (NSW) Pty Limited”.  The postal address for the service of notice on the Notice of Appeal (Form 59) was changed to the agent’s address at Level 17, 200 Queen Street, Melbourne, 3000.  That appeal was received by the Court on 29 July 2002.  On 29 July 2002 a search of the departmental valuation records shows the owner as Trust Company of Australia Ltd.  Communications between the Court and Mr Jackson continued in respect of this matter in the name of “NE Christie (NSW) Pty Limited” through several directions hearings on 25 July 2003 and 28 November 2003.  It became clear that a change of ownership had occurred which might affect the legality of the Notice of Appeal.  The respondent department had written to the owners’ legal advisers (Gadens Solicitors) on 24 September 2003 seeking information about certain disclosure matters, noting in particular details about the sale contract itself.

  7. On 21 August 2003 the legal advisers (Gadens Lawyers) for the new owners (Trust Company of Australia) advised this Court of the change of ownership of the subject land, and requested the Court to amend the appeal to have effect in the name of the new owners.  A copy of that advice to the Land Court was not sent to the respondent on 21 August 2003, but has since been provided to the respondent.  At a directions hearing for this and other Central City matters the matter of jurisdiction was heard on 29 June 2004.

The Legislation –

  1. Before considering the circumstances of this matter, I refer to the directions of the legislation.  It is noted that in respect of an annual valuation, a notice to an owner about a valuation is exercised under s.41A, which states that the Chief Executive must give to an owner of land a notice about the valuation of the owner’s land.  (Section 41A(1)).  In the current matter that occurred as the former owner (Christie (NSW) Pty Limited) was the owner at the date of issue of the valuation at 26 February 2002.  That notice must state, among others, that the owner may object to the valuation within 42 days after the notice of issue (s.41A(2)(b)).  That information must have been passed from Christie (NSW) Pty Limited to the new owner’s agent (Macquarie Bank Limited), as he then directed Mr Jackson to lodge an objection, which subsequently occurred on 22 March 2002, albeit in the wrong name of the former owner.

  2. Section 42 of the Act then provides the rights of an owner to object within 42 days, and s.43 directs that the Chief Executive, after considering the objection, shall issue to the “objector” written notice of his decision on the objection.  In the current matter the respondent wrote to the former owner conveying that advice on 30 June 2002.  It will be reasonable to conclude that the Chief Executive’s delegates at 30 June 2002 understood that the owner was still the former owner.

  3. Such a scenario raises the question as to how could that occur within the computerised records of the Chief Executive, when the Titles Office computerised titling system showed that a transfer of ownership had occurred on 14 March 2002.  It is possible that there had been some breakdown in communication between the titles and the valuation systems, within the one organisation.  Whatever the reason, until 30 June 2002 both parties apparently continued upon the mistaken belief of an objection and appeal in the name of the former owner.

  4. In respect of the Notice of Appeal which was lodged by Mr Jackson in the name of the former owner, I note that resulted in response to a notice on the decision by the Chief Executive on the objection.  But that decision on objection was issued in the name of the former owner on 30 June 2002, which would appear to be in conflict with s.45(2) of the Act. 

  5. That raises the question as to whether the decision on objection was correctly issued;  and in effect whether there has in fact been any decision issued at all.  It is noted that under s.45(1) an appeal can only be made by an owner who has objected pursuant to s.42, and an appeal under s.45(2) must be made within 42 days after the date of an issue to the owner concerned.  If I was to take that approach then the matter of whether the appeal was correctly lodged would become a non-issue.  However the unimproved value of the subject land as determined by the Chief Executive would continue to take effect on 30 June 2002 under s.38(1) of the Act.  The objection process would then remain open until the Chief Executive correctly advised the owner, which it is agreed would be Trust Company of Australia Limited, but that entity had not objected to the valuation issued under s.41A.  In any case the matter of whether an objection was completed correctly is a matter for the Chief Executive, and is not a matter for correction by this Court.

  6. However while such a scenario by the respondent might explain how confusion continued in the matter, it does not relieve the appellant of the legal responsibility of lodging an objection and a subsequent appeal in the incorrect name.  It is noted that had the owner realised the mistake in the objection notice within one year of the date of issue on 26 February 2002 (i.e. 25 February 2003), then the true owner could have reactivated the objection under s.44(1)(b), subject to the condition that the true owner did not receive the notice of valuation.  But the evidence discloses that had not occurred.  In fact the notice on the decision on objection to the previous owner on 30 June 2002 may have inadvertently contributed to misleading the appellant in that regard.  However ignorance is no excuse in the law.

  7. There is no opportunity for the new owner (Trust Company of Australia) to carry on an objection or appeal in the name of the former owner under s.46(2), as the change of ownership occurred on 14 March 2002, some 8 days before Mr Jackson objected to the valuation on 26 March 2002.  Had such an objection or appeal been available, that would have been restricted to the same grounds as the former objection or appeal.  Clearly the objection and appeal are in breach of the legislation.  The only question to be addressed is whether an apparent mistake by an agent for the owner, or a subagent in contradiction to the agent’s instructions, should preclude the owner from his legal rights to appeal.

  8. In the current matter Mr Rose argues that it would be just and equitable for both parties if the Court was to use its discretion to allow the appeal to proceed in the name of the new owner (Trust Company of Australia).  He argues that at all times the Chief Executive had not been mislead as to the ownership of the subject land, and throughout the objection and appeal proceedings, had also believed that the owner was still Christie (NSW) Pty Limited.

  9. Mr Rose argues that under r.4 of the Land Court Rules 2000, the guidance of the Uniform Civil Procedure Rules 1991 are taken to provide directions to the court where discretion should apply.  It is also noted that under r.6 of the Land Court Rules, the Court can exercise non-compliance with the rule if the Court considers that injustice could be caused. 

  10. Mr Rose seeks support in r.376 of the Uniform Civil Procedure Rules (the Uniform Rules);  and partly also in respect of r.69(2).  In respect of r.69(2) I note that a Court may at any stage order that a substitution of a party may be made;  but if at the end of any limitation period, only if one of the conditions under s.66(2) applied.  In the current matter possible conditions include that the new party is necessary to the proceedings, because it is now the true owner of the land (s.69(2)(a)(i));  and the proceedings was started in the name of the wrong party (s.69(2)(a)(iii)). 

  11. I turn then to r.376(2), which states in respect of an application for leave to make an amendment after the end of a relevant period of limitation which was required when the appeal was started:

    “376(2)  The Court may give leave to make an amendment correcting the name of a party, even if it is alleged that the effect of the amendment will be to substitute a new party, if –

    (a)the Court considers it appropriate;  and

    (b)the Court is satisfied that the mistake sought to be correct -

    (i)was a genuine mistake;  and

    (ii)was not misleading or such to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sue.”

  12. I note also that r.376(4) provides that an amendment may be made at the discretion of the Court even if a new course of action is proposed, if the new course of action arises out of substantially the same facts as were originally claimed. However I also note that s.46(4) of the Valuation of Land Act would preclude such amendment in the current matter. 

  13. I turn first as to what discretion, if any, lies with this Court where a provision of the legislation has not been correctly complied with.  Mr Burns directs me to two matters which may have some bearing in the matter.  In the matter of Doolan Properties Pty Ltd v Council of the Shire of Pine Rivers (1999) 20 QLCR 210, the Land Appeal Court was asked to allow discretion in respect of a change of name of an appellant in a resumption matter under the Acquisition of Land Act 1967 and the Land Act 1962.  The appeal had been lodged in the name of William Doolan, while the land was in fact owned by Doolan Properties Pty Ltd.  The Land Appeal Court exercised its discretion to allow the change of name under s.44(11)(d)(ii) of the Land Act 1962;  as the appeal had not been commenced by an incorrect party.  That matter could be distinguished as any support for the application in the current matter, as the former owner (Christie (NSW) Pty Limited) was an entirely separate owner to the correct owner Trust Company of Australia Limited.

  14. Support for that conclusion was found in the decision of the Court of Appeal in Evans Construction Co Ltd v Charrington & Co Ltd & Another [1983] 1QB 810 where Donaldson LJ said at 821:

    “In applying Ord.20,r.5(3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B.  The rule is designed to correct the latter and not the former category of mistake.  Which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances. 

    However in the current matter there was no apparent mistaken belief that Christie (NSW) Pty Limited was the true owner for the objection and appeal stages, but rather that the true owner was mistakenly named on the forms. 

  15. I turn then to the second matter of Director-General, Department of Transport v Congress Community Development and Education Unit Limited (1988) 19 QLCR 168. In that matter an appeal had been lodged in the correct name of the appellant owner, but had been lodged after the statutory period within which to lodge an appeal to the Land Appeal Court. The appeal was lodged one working day after the statutory period. In that matter the Court considered whether there was a reasonable cause or explanation for the lateness of this service and lodgement under s.44(11)(d) of the Land Act 1962.  The Land Appeal Court found that there was a reasonable explanation for the lateness of the service;  and further noted that as to whether an applicant is necessarily fixed with an agent’s conduct to the extent that the agent’s conduct in all respect is to be treated as that of the appellant, requires a more flexible approach considering the circumstances of the particular matter. 

  16. However I again feel that Congress Community can be distinguished in the current matter as that dealt again with s.44(11)(d)(i) of the Land Act 1962, as it then was, which is seen as remedial in nature, and was involved with considerations of the consequences of a slight delay in lodging a correct appeal. The current matter deals with an incorrect objection and notice of appeal. Sections 427 to 431 of the new Land Act 1994 make no specific provision in respect of the discretion of the Court.  However the matter of whether a subagent’s activities must be seen as “the alter ego’ of the appellant provides some guidance.

  17. Mr Rose directs me to the findings of the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA & Anor [1991] 173 CLR 231, where the Court considered the matter of whether the name of a party may be corrected under r.36.01 of the Rules of the Supreme Court of Victoria, which states:

    “Rule 36.01: 

    (1)For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding. 

    (4)A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another parson as a party;  and 

    (6)The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment and award of costs or otherwise.”

  18. That matter dealt with a claim for damaged goods by an owner (Philip Morris) against a company (Bridge Shipping) who they had engaged to carry the goods from Brazil to Melbourne.  The defendant company initially registered a third party claim against the owner of the vessel (Grand Shipping), but later found that the vessel was under charter to another company (Rainbow Lines).  The High Court considered whether to change the counter claim by the defendant (Bridge Shipping) from the owner’s name to the name of the charterer of the vessel under r.36.01. 

  19. McHugh J noted that several recent cases in Queensland and Victoria had concluded that r.36.01 applied only to cases applying to misnomer, clerical error and misdescription following the decision of the Privy Council in Davies v Ellesbury Brothers Limited [1960] 3 All ER 672. McHugh J concluded that those decisions in Queensland and Victoria “were wrongly decided and should be overruled”. (p.259).

  20. In that decision McHugh J, with whom the majority concurred, examined subrule 4 of r.36.01 and found at 261:

    “To give the rule the meaning for which Bridge contends does not mean that a person can sue any person and then at a later time substitute another person for the original defendant.  The rule imposes three limitations on a person’s right to amend.  First, there must be a mistake.  Secondly, the mistake must be ‘in the name of a party’.  Thirdly, the Court may only make the order where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his or her claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise:  r.36.01(6).”

  1. McHugh J also noted at p.260:

    “Rule 36.01(4) is a remedial rule and should be given a beneficial interpretation.  It is proper to give it the widest interpretation which its language will permit.  (Homes v Permanent Trustee Co of New South Wales Limited (1932) , 47 CLR 113, at 119.) It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description.”

  2. Mr Rose also directs me to the application of the Bridge Shipping decision in Jiminez v J Form Contracting Pty Ltd [1993] 1 QdR 610. That decision of the Queensland Court of Appeal involved the refusal by the District Court to allow the name of a defendant in a personal injuries case to be amended from J Form Contracting Pty Ltd to J Form Pty Ltd.  The Full Court of Appeal approved that leave be granted for that application in view of “an important question of justice here”.  (p.612).  The Court went on to say “Because we think that the applicant seems so far to have been the victim of other people’s errors, in consequence of which there has already been substantial delay, we think it would be most unjust to compel him to take that course, with a possible risk of failure, when the interests of justice require that his cause of action be brought to trial as early as possible”.  (612).

  3. Davies and McPhersons JJA concluded at p.614: 

    “In Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231, the High Court considered the construction of a rule of the Victorian Supreme Court which, though in terms different from 0.32 r.(1)(3), was considered by the Court to have the same effect. The Court concluded that, under that rule, a plaintiff may make a mistake in the name of a party, not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name, but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name: See at 260, 234. Clearly the applicant’s mistake in the present case falls into one or other of those categories and consequently the appeal should be allowed.”

  4. A similar interpretation was applied in the matter of Evans Construction Company Ltd v Charrington & Co Ltd (supra).  In that matter a solicitor for Evans had, within the statutory period required, entered an originating application with an erroneous name of the previous landlord as the current landlord of premises in which Evans ran its business. In its decision granting approval to add the name of the current landlord to the application, with which Waller LJ dissented, Donaldson LJ found at 824:

    “In the instant case all the criteria of Ord.20.r.5(3) are met.  The mistake was genuine.  Charringtons, as the managing agent of Bass could not have been mislead and either they informed Bass of the originating application or they should have done so.  Bass could not have been mislead.  Neither Charringtons nor Bass could have had any doubt that Evans was intended to name the landlord, i.e. Bass, as respondent.  There can be no injustice in requiring Bass to make good its claim to possession on its merits.”

  5. In his decision supporting Donaldson LJ, Griffiths LJ said at 825:

    “Is the rule to be limited to mere misspelling or some other slip such as leaving out one word in the long title of a company so that looking at the name on the proceeding the nature of the mistake can readily be seen;  or is it to be more liberally construed so that it will cover the case when entirely the wrong name has been used?  I see no reason why it should not include a case when entirely the wrong name has been used, provided it is not misleading, or such as to cause any reasonable doubt as to the identity of a person intended to be sued.  The identity of the person intended to be sued is of course vital.  But in this case I have no doubt that the identity of the person intended to be sued was the current landlord, Bass.”.

  6. If I turn then to the current matter, I seek to determine the following matters:

    (1)Was there a genuine mistake in placing the name of the previous owner on the notice of appeal?

    (2)Was the name used a party connected to the subject property?

    (3)Could the respondent department be prejudiced by the mistaken name?

  7. The evidence is clearly that Mr Jackson had made a genuine mistake in executing the Notice of Appeal, contradictory to the instructions of the agent (Macquarie Bank Limited) for the current owner (Trust Company of Australia).  However it is also clear that in completing the Notice of Objection (Form 58) and the Notice of Appeal (Form 59), Mr Jackson had intended his actions to represent the interests of the “owner” of the land.  The receipt and subsequent dealing with the Notice of Objection indicated that the respondent department had no misunderstanding of the intentions of the objection.  It would also appear that at that time the respondent’s officers also believed that the owner continued to be Christie (NSW) Pty Limited.  In fact the Chief Executive wrote to “Christie” as the owner on 30 June 2002.

  8. Was the name used as “Christie” the name of a party connected with the subject land?  The answer there is Yes, as “Christie” had been the previous owner up to 26 February 2002, when the notice issued, just 16 days prior to the change of ownership.  The respondent had therefore intended the valuation notice to be issued to the “owner”, and had done so correctly.  Because of an inconsistency in its own records, the respondent had incorrectly addressed the decision on objection under s.43 on 30 June 2002 to the former owner.  I note that the letter was not addressed to Mr Jackson as the objector.  The Notice of Appeal continued that mistaken description of the owner. 

  9. In respect of whether the respondent could have been prejudiced by the mistaken name, I believe that has not occurred.  The evidence is that until the change of ownership was brought to the respondent’s attention some time about the lodgement of the Notice of Appeal, which was lodged on 29 July 2002, the respondent saw the objection as a normal objection process dealing with who they perceived as the “owner”. 

  10. In summarising this matter I believe that there is adequate grounds for this Court to exercise its discretion in allowing the name of the current owner (Trust Company of Australia Limited) to be exchanged for the previous owner (Christie (NSW) Pty Limited.

  11. It is ordered in respect of the appeal against an annual valuation at 1 October 2001 of property at 300 Adelaide Street, Brisbane, and described as Lot 21 on RP 133092, that the name of the current owner Trust Company of Australia Limited be exchanged for the name of Christie (NSW) Pty Limited as the appellant in that matter.

NG DIVETT

MEMBER OF THE LAND COURT

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