Pollak v Valuer General - [1999] NSWLEC 37

Land and Environment Court

of New South Wales

CITATION:

Pollak -V- Valuer General [1999] NSWLEC 37

PARTIES

APPLICANT:
Aana Pollak

RESPONDENT:
Valuer General

NUMBER:

30123 of 1998

CORAM:

Bignold J

KEY ISSUES:

:- Application to appeal out of time.
Principles for exercise of discretion.

LEGISLATION CITED:

Application to appeal out of time.
Principles for exercise of discretion.

DATES OF HEARING:

01/18/1999

DATE OF JUDGMENT DELIVERY:

02/26/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J. Pollak, Barrister
RESPONDENT:
Mr. Robertson, Solicitor

JUDGMENT:

1. By its amended Notice of Motion pursuant to leave granted by the Court on 18 January 1999, the Owners - Strata Plan 1842 seek the Court’s leave to bring an appeal pursuant to s.38(1) of the Valuation of Land Act 1916 out of time.

2. The Owners - Strata Plan 1842 own land known as No. 1 Wentworth Street, Point Piper which was the subject of a “land value” valuation (Valuation No. 13800) made by the Valuer-General pursuant to s.19 of the Valuation of Land Act as at the valuation base date of 1 July 1997. The objection against that valuation (in the sum of $2.68 million) was made by the owner, and by letter dated 20 May 1998, the Valuer-General notified the owner that its objection had been allowed and the land value was altered to $2.25 million.

3. On 7 July 1998 the present proceedings were commenced by application filed in the Court by “Aana Pollak Strata Plan 1842” (Mrs Pollak is the owner of three of the four lots comprised in Strata Plan 1842).

4. On 27 October 1998, when the proceedings came on for hearing before Assessor Watts, the Valuer-General, apparently without any prior notice to the Applicant (who was represented at the hearing by her husband Dr Joseph Pollak, a medical practitioner and an associate member of the New South Wales Bar), raised objection to the competency of the proceedings on the ground that the applicant was not the owner of the land, the subject of the Valuer General’s valuation and determination of the objection thereto, and was not a person to whom notice of valuation had been given pursuant to s.29(1) of the Valuation Act and was not a person entitled to object to such valuation and hence, was not an objector within the meaning of s.38(1) of that Act.

5. Some debate ensued during which the Assessor indicated that he regarded the objection to the competency of the proceedings as being soundly based and that the Applicant had two options—either for the Owners Strata Plan 1842 to seek leave to commence proceedings out of time or to discontinue them. The Assessor expressed the opinion that he did not have the power to grant any amendment to the originating process so as to substitute the Owners Strata Plan 1842 as the applicant.

6. After some discussion, the Applicant elected to discontinue the proceedings and thereafter filed a Notice of Discontinuance.

7. It is against the foregoing background facts that the Applicant on…

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: [1999] NSWLEC 37
Decision Date: 02/26/1999

CaseChat Overview and Summary

The Land and Environment Court of New South Wales considered an application to appeal out of time in the case of Pollak v Valuer General. The applicant, Aana Pollak, sought leave to amend the originating process by substituting the Owners Strata Plan 1842 as the applicant and to extend the time for appealing against the Valuer General's determination of an objection to a land value. The legal issues involved the principles for exercising the discretion to extend time under Part 1 Rule 8 of the Court's Rules.

The Court determined that the discretion to extend time should be exercised based on the small delay in seeking the relief, the absence of evidence that the appeal is hopeless, and the lack of demonstrated prejudice to the Valuer General if leave is granted. The Court held that the applicant, who had mistakenly discontinued the proceedings due to a misapprehension, should be granted leave to appeal out of time. The Court extended the time for appealing the Valuer General's determination to 5 March 1999 and reserved the question of costs.

In summary, the Court granted the applicant's request to appeal out of time and to amend the originating process, finding that the delay in seeking relief was small, the appeal was not hopeless, and no relevant prejudice would result from granting the extension.

Orders