Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400 Hearing dates: 11 November 2015 Decision date: 16 December 2015 Before: Bathurst CJ at [1];
Macfarlan JA at [2];
Leeming JA at [10]Decision: Appeal dismissed, with costs.
Catchwords: PRACTICE – late application to adduce further evidence – no error of law disclosed in refusal of application by primary judge
PRECEDENTS – precedential authority of decision on construction of identical words in different statute – precedential authority of Australian appeals to Privy Council
VALUATION – methods of valuation – hypothetical fee simple of mine – minerals in fact reserved to Crown – whether land value to be determined on assumption that minerals privately owned – distinction between laws of general application and qualifications upon the particular grant – Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610 and Gollan v Randwick Municipal Council [1961] AC 82 considered – Crown reservation of minerals to be ignored in valuation of hypothetical fee simpleLegislation Cited: Civil Procedure Act 2005 (NSW), s 56
Constitution (Cth), s 114
Crown Lands Act 1884 (NSW), s 7
Crown Lands Act 1989 (NSW), s 171
Crown Lands Alienation Act 1861 (NSW), ss 18, 19
Crown Lands Consolidation Act 1913 (NSW), s 235
Evidence Act 1995 (NSW), s 144
Interpretation Act 1987 (NSW), s 21
Land and Environment Court Act 1979 (NSW), ss 38, 57
Land and Income Tax Assessment Act 1895 (NSW)
Land Tax Assessment Act 1910 (Cth), ss 3, 13, 25, 26, 27, 28, 29, 31, 33
Mining Act 1992 (NSW), ss 63, 98, 284; Pts 13, 14
Valuation of Land Act 1916 (NSW), ss 6A, 37
Western Lands Act 1901 (NSW)Cases Cited: Barclay v Penberthy [2012] HCA 40; 246 CLR 258
Bone v Commissioner of Stamp Duties (1974) 132 CLR 38
Broken Hill Proprietary Co Ltd v Valuer-General [1970] AC 627; (1969) 16 LGRA 334
Cadia Holdings Pty Ltd v State of New South Wales [2010] HCA 27; 242 CLR 195
Coleman v Power [2004] HCA 39; 220 CLR 1
Commissioner of Stamp Duties v Bone [1977] AC 511
Commonwealth v State of New South Wales (1923) 33 CLR 1
Cook v Cook (1986) 162 CLR 376
Esposito v Commonwealth [2015] FCAFC 160
Fejo v Northern Territory of Australia [1998] HCA 58; 195 CLR 96
Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; 209 CLR 478
Gollan v Randwick Municipal Council [1961] AC 82; (1960) 6 LGRA 275
Hawkins v Clayton trading as Clayton Utz & Co (1986) 5 NSWLR 109
Imbree v McNeilly [2008] HCA 40; 236 CLR 510
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Perilya Broken Hill Ltd v Valuer-General (No 3) [2013] NSWLEC 215
Perilya Broken Hill Ltd v Valuer-General (No 5) [2015] NSWLEC 20
Keep reading for free
Create a free CaseChat account to read Perilya Broken Hill Ltd v Valuer-General and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2015] NSWCA 400
- Decision Date
CaseChat Overview and Summary
Perilya Broken Hill Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the valuation of certain land for the purposes of land tax. The dispute centred on how the value of the land, which included mining tenements, should be assessed, particularly in light of the Crown's reservation of minerals.
The Court of Appeal was required to determine two principal legal issues. Firstly, whether the primary judge erred in refusing the appellant's late application to adduce further evidence. Secondly, and more significantly, the Court had to decide whether, in valuing the hypothetical fee simple of the land, the valuation should proceed on the assumption that the minerals were privately owned, notwithstanding the Crown's reservation. This involved considering the precedential authority of decisions concerning the construction of identical words in different statutes and the weight to be given to decisions of the Privy Council.
The Court of Appeal held that the primary judge had not erred in refusing the late application to adduce evidence, finding no error of law. Regarding the valuation issue, the Court applied the principles established in *Royal Sydney Golf Club v Federal Commissioner of Taxation* and *Gollan v Randwick Municipal Council*. It reasoned that when valuing a hypothetical fee simple, any reservations of minerals to the Crown should be ignored. The Court distinguished between laws of general application and qualifications upon a particular grant, concluding that for the purpose of determining the value of the hypothetical fee simple, the land should be valued as if the minerals were privately owned.
The appeal was dismissed, and Perilya Broken Hill Ltd was ordered to pay the costs of the appeal.
The Court of Appeal was required to determine two principal legal issues. Firstly, whether the primary judge erred in refusing the appellant's late application to adduce further evidence. Secondly, and more significantly, the Court had to decide whether, in valuing the hypothetical fee simple of the land, the valuation should proceed on the assumption that the minerals were privately owned, notwithstanding the Crown's reservation. This involved considering the precedential authority of decisions concerning the construction of identical words in different statutes and the weight to be given to decisions of the Privy Council.
The Court of Appeal held that the primary judge had not erred in refusing the late application to adduce evidence, finding no error of law. Regarding the valuation issue, the Court applied the principles established in *Royal Sydney Golf Club v Federal Commissioner of Taxation* and *Gollan v Randwick Municipal Council*. It reasoned that when valuing a hypothetical fee simple, any reservations of minerals to the Crown should be ignored. The Court distinguished between laws of general application and qualifications upon a particular grant, concluding that for the purpose of determining the value of the hypothetical fee simple, the land should be valued as if the minerals were privately owned.
The appeal was dismissed, and Perilya Broken Hill Ltd was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed, with costs.
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.