SILKCHIME PTY LTD and VALUER-GENERAL

[2021] WASAT 151

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: VALUATION OF LAND ACT 1978 (WA)

CITATION:   SILKCHIME PTY LTD and VALUER-GENERAL [2021] WASAT 151

MEMBER:   MS R PETRUCCI, MEMBER

MR D HALL, SENIOR SESSIONAL MEMBER

HEARD:   17 AND 18 AUGUST 2021 AND 20 AND 21 OCTOBER 2021

DELIVERED          :   29 NOVEMBER 2021

FILE NO/S:   DR 56 of 2020

BETWEEN:   SILKCHIME PTY LTD

Applicant

AND

VALUER-GENERAL

Respondent

Catchwords:

Valuation of Land Act 1978 (WA) - Valuer-General refusal to extend time for objection for some years - Extension of time to serve objection - Whether 'reasonable cause' shown - Exercise of Tribunal's discretion - Relevant principles applicable to extension of time

Legislation:

City of Joondalup District Planning Scheme No 2
City of Joondalup Local Planning Scheme No 3
Corporations Act 2001 (Cth), s 240(k), s 240(l)
State Administrative Tribunal Act 2004 (WA), s 9, s 17(1), s 27(1), s 29(1), s 29(3)
State Administrative Tribunal Rules 2004 (WA), r 10
Valuation of Land Act 1978 (WA), s 32, 32(6), s 35(1), s 35(2), s 35(3), s 36A, s 36B

Result:

Decision under review affirmed
Application unsuccessful

Category:    B

Representation:

Counsel:

Applicant	:	Mr JRB Ley SC and Mr B Dawson
Respondent	:	Ms C Ide

Solicitors:

Applicant	:	Mony De Kerloy Barristers and Solicitors
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Black v City of South Melbourne [1963] VR 34

Jackmarra v Krakouer and Anor (1998) 195 CLR 516

Judge Nominees Pty Ltd v Valuer General (2002) 31 SR (WA) 59

Lanepoint Enterprises Pty Ltd (recs and mgrs apptd), Re; Fraser v Australian Securities and Investments Commission (ASIC) (2007) 159 FCR 424

Ninan & Anor Valuer­General [2012] WASAT 248

Quinlivan v Portland Harbour Trust [1963] VR 25

Smith and City of Wanneroo [2008] WASAT 182

Stevens v Motor Vehicle Insurance Trust [1978] WAR 232

The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50

REASONS FOR DECISION OF THE TRIBUNAL:

Background

1. The applicant (Silkchime) is a company incorporated under the Corporations Act 2001 (Cth) (Corporations Act) and is the trustee of the Silkchime Unit Trust.  Silkchime is the registered proprietor of land in Warwick (collectively, the Land) which is situated at:

   a)83 Ellersdale Avenue, Warwick;

   b)14 Dugdale Street, Warwick;

   c)99 Ellersdale Avenue, Warwick;

   d)30 Dugdale Street, Warwick; and

   e)95 Ellersdale Avenue, Warwick.

2. Mr Norman Phillip Carey (Mr Carey) is a director of Silkchime.

3. Silkchime was under the control of receivers and managers appointed by first mortgagee financiers (receivers) from 24 January 2006 to 6 March 2019 (the receivership period).  The receivers paid some of the assessments on the Land but took no steps to challenge the assessments.  After 2010/11 the receivers paid no assessments on the Land.  On or about 6 March 2019, following litigation, the receivers retired and control of Silkchime reverted to the directors, including Mr Carey.

4. On 27 April 2018, Mr Carey wrote to the State Solicitor's Office in reply to their letter of 5 April 2018.  He signed the letter as director of Silkchime, and amongst other things, stated:[1]

   I point out that I have been a significant property developer and property investor for more than 40 years.  During this time I have and/or my associated entities have owned more than $1.5b in property in WA, Vic, NSW, Qld and SA.  During this time I have paid millions of dollars in land tax in these various states.  I have continued to meet my obligations to pay land tax.  But for this dispute with the receivers that should have been resolved years ago the land tax on this land would have paid as it was from 1994 when I first purchased this land.

   [1] Exhibit 1, at page 224.

5. The issue in dispute before the Tribunal is the respondent's (Valuer­General) refusal on 28 January 2020 to grant Silkchime an extension of time for service of objections to valuations contained in the Land Tax Notice of Assessment (assessment notices) issued for each year from 2005/06 to 2013/14 inclusive (relevant period) (refusal decision).[2]  

   [2] The Valuer-General granted an extension of time for service of objections to valuations contained in assessment notices issued from 2014/15 to 2018/19 (refer to Exhibit 1 at pages 1- 2).

6. In short, counsel for Silkchime submit that Silkchime could not sensibly bring any challenge because of factors outside its control.[3]   Further, in written submissions, counsel for Silkchime submit that there is public interest in having assessment matters promptly resolved but there is also a public interest in ensuring that valuations are done correctly and fairly.[4]

   [3] Exhibit 1, at page 277.

   [4] Ibid, at page 280.

7. If we decide the matter in favour of Silkchime, this will require the Valuer-General to determine the objections lodged by Silkchime for each of the nine years in the relevant period.  On the other hand, if we decide the matter in favour of the Valuer-General, this will bring the matter to an end.

8. For the reasons given below, in our view, Silkchime's application for review is to be dismissed and the decision under review, not to extend the time for service of an objection for each year in the relevant period, is to be affirmed.  This means the matter has come to an end.

The application for review and the reviewable decision

1. The decision that is the subject of the review application before the Tribunal is the Valuer-General's decision, made on 28 January 2020, to refuse to grant Silkchime an extension of time for service of objections to valuations (unimproved value of the Land) contained in each of the assessment notices issued for the relevant period.

2. According to Silkchime, the basis for the objections to the unimproved value of the Land for the relevant period is the same in each of the nine years in the relevant period, namely that the real impact and effect of the planning policies relating to metropolitan centres (in this case Warwick) were not taken into account by the Valuer-General in assessing the unimproved value of the Land.[5]

   [5] Ibid, at 274.

3. On 6 February 2020, Silkchime gave notice to the Valuer-General pursuant to s 35(1) of the Valuation of Land Act 1978 (WA) (VL Act), requesting him to refer his refusal decision in relation to the assessment notices issued for the relevant period to the Tribunal for review (notice).

4. This application for review was commenced on 17 March 2020 on the referral by the Valuer-General of the notice to the Tribunal along with the refusal decision.

5. The Valuer-General's refusal of Silkchime's request to grant an extension of time for service of objections to the valuations contained in the assessment notices issued for the relevant period is a 'reviewable decision' for the purposes of s 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Valuer-General's role is to refer the notice along with the decision to refuse to extend the time and the reasons for the decision to the Tribunal, whereupon the referral is treated as an application by Silkchime. This is provided for in s 35(2) and s 35(3) of the VL Act as follows:

   (2)Upon receipt of such notice the Valuer‑General shall promptly refer the decision to the State Administrative Tribunal for a review.

   (3)The Valuer‑General is to effect the reference by forwarding the notice to the executive officer of the State Administrative Tribunal together with the objection and a copy certified by or on behalf of the Valuer‑General of ­

   (a)the decision to refuse to extend the time; and

   (b)the reasons, if any, for the decision.

The Tribunal's jurisdiction

1. Section 27(1) of the SAT Act provides that the review of a reviewable decision by the Tribunal is by way of a hearing de novo.

2. By reasons of s 29(1) of the SAT Act, the same functions and discretions of the original decision­maker are conferred on the Tribunal,[6] and s 29(3) of the SAT Act confers power on the Tribunal to give effect to the Tribunal's conclusions on the review of the reviewable decision.

   [6] The Match Group v Metropolitan South West Joint Development Assessment Panel [2014] WASCA 50.

3. The Tribunal is not limited to a consideration of the material that was before the original decision­maker and may take into account additional material not before the original decision­maker.

Relevant procedural history

1. We heard the matter over four days, on 17 and 18 August 2021 and on 20 and 21 October 2021.

2. On the first day of the hearing (17 August 2021), an important issue arose between the parties as to what is the scope of 'reasonable cause' in s 32(6) of the VL Act and whether some documents filed with the Tribunal, including valuation reports, are not relevant for this proceeding and therefore should not be admitted into evidence. The context in which the issue arose is as follows.

3. Counsel for Silkchime submitted that the onus is on Silkchime to show 'reasonable cause', as required by s 32(6) of the VL Act, for its delay in objecting to each of the assessment notices for the relevant period. Counsel for Silkchime submitted that if the Tribunal considered other factors, such as prejudice to the Valuer-General or whether or not Silkchime has an arguable case, in deciding whether to exercise its discretion to extend the time to object, it will fall into error. It was on this basis that counsel for Silkchime sought to limit the evidence before the Tribunal for this proceeding to the witness statement of Mr Carey and to the documents referred to by Mr Carey in his witness statement. In particular, counsel for Silkchime sought to have the planning and valuation evidence filed by both Silkchime and the Valuer-General excluded from the evidence in this proceeding.

4. We note Silkchime's position had changed from the submissions filed with the Tribunal on 8 May 2020 and on 4 December 2020 to which counsel for the Valuer-General filed submissions and evidence responsively.

5. Counsel for the Valuer-General submitted that the final hearing should not be the juncture for the respondent (in this case the Valuer­General) to be prevented from addressing the question of prospects of success in this proceeding.  That, according to counsel for the Valuer­General is something the Tribunal needs to reach a finding about, for this proceeding, when it considers its decision, as opposed to the early juncture, being the commencement of the final hearing.

6. We were referred to the decision of the then Land Valuation Tribunal (LVT) in Judge Nominees Pty Ltd v Valuer General (2002) 31 SR (WA) 59[7] (Judge Nominees) which was dealing with s 32(6) of the VL Act. Counsel for the Valuer-General submits that the LVT was aware of the factual nature of the objections and was aware why the applicant sought an extension of time. Further, the applicant in that case was aware of the issues associated with whether or not the lots should have been valued on a group basis, applying the Valuer­General's policy. The tenor of the judgment in Judge Nominees, submitted counsel for the Valuer-General is that the LVT was well aware of the factual matrix in which the objection was made, and also the implications to be said as to what might appear in the event that an extension of time were granted.

   [7] R E Birmingham QC, R J Priest and P A Addison.

7. Counsel for the Valuer-General referred us to Ninan & Anor Valuer­General [2012] WASAT 248[8] (Ninan) where at [62] the Tribunal accepted the submissions that:

   [T]he ordinary principles concerning matters (for example, the length of time; explanation for the delay; and prejudice to the other party …) are applicable here[.]

   [8] Mr P McNab, SM.

8. On the basis of these two decisions, counsel for the Valuer­General submitted that given there is a question to be determined in relation to the issue as to the scope of 'reasonable cause', it is entirely appropriate that the Valuer-General be given the opportunity to adduce evidence to support the breadth of the case he wishes to make to the Tribunal about the exercise of the discretion.

9. In order for us to meet the objectives of the Tribunal as set out in s 9 of the SAT Act, which includes that we act speedily and to minimise costs to the parties, following hearing from counsel for each party, we informed the parties that it was appropriate to allow the Valuer­General to present all of his evidence by admitting the witness statements and valuation reports as well as to allow counsel for the Valuer-General to cross-examine of all of Silkchime's witnesses previously nominated.

10. We invited counsel for each party to make fulsome submissions as to the proper construction of s 32(6) of the VL Act including whether the Tribunal could consider other factors, such as whether there is an arguable case and the prejudice to other party, in the Tribunal considering whether to exercise its discretion to extend the time for service of the objections for the relevant period.

11. We note that had the parties been ordered to file a Statement of Issues, Facts and Contentions during the directions hearing process, we may have arrived at a different conclusion (to that at [25]).

12. Counsel for Silkchime and counsel for the Valuer-General provided fulsome submissions which greatly assisted us in determining the issues before us.

13. At the hearing, the Tribunal marked the following document, to which we have had regard for the purpose of our determination in this proceeding, as an exhibit:

    Exhibit 1Hearing Book (HB) prepared by the Tribunal dated 9 August 2021 pages 1 to 842 with the following additions:

    Mr Gregory Rowe's witness statement dated 4 December 2020 (pages 299 to 305) is removed and replaced with Mr Rowe's updated witness statement dated 19 October 2021 (pages 299 to 306).  This required the original page 305 to be renumbered 306.  Further, a new page (306A) was added which is a summary of qualifications, experience and affiliations of Mr Rowe.

Evidence

1. We heard from five witnesses.

2. Silkchime had three witnesses.  Mr Carey was the first witness called by Silkchime.  His witness statement is dated 27 November 2020 and was filed with the Tribunal.[9]  Mr Carey filed a further witness statement with the Tribunal.  It is dated 23 June 2021.[10]  Mr Greg Rowe was the second witness called by Silkchime.  His witness statement is dated 19 October 2021 and was filed with the Tribunal.[11]  Mr Steve Kish was the final witness called by Silkchime.  Mr Kish prepared a valuation report dated 2 July 2021 and was filed with the Tribunal.[12]  At hearing each of Silkchime's witnesses confirmed the contents of his respective statement or report. 

   [9] Exhibit 1, HB at pages 283-297.

   [10] Ibid, at pages 314-315.

   [11] Ibid, at pages 638-639.

   [12] Ibid, at pages 327-512.

3. The Valuer-General had two witnesses.  Ms Janine Sparling was the first witness called by the Valuer-General.  Her witness statement is dated 17 February 2021 and was filed with the Tribunal.[13]  The second witness called by the Valuer-General was Mr Mark Hebbard.  His valuation summary is dated 19 February 2021 and was filed with the Tribunal.[14]  At hearing each of the Valuer-General's witnesses confirmed the contents of his or her statement or summary.

Mr Carey's evidence

[13] Ibid, at pages 662-757.

[14] Ibid, at pages 765-824.

1. Mr Carey gave evidence as to when Silkchime went into receivership, attempts to develop the Land, the land tax assessments, proceedings against the receivers, action taken after retirement of the receivers and request for further information for the expert valuation opinion.

2. In relation to the 2005/06 assessment, Mr Carey considered it was a fair and reasonable valuation of the Land and accordingly Silkchime did not object to the valuation under the VL Act and paid the land tax on the Land.

3. Receivers were appointed in 2006 and from 24 January 2006 to 6 March 2019 it is Mr Carey's position that neither he nor the other directors of Silkchime were aware in respect of 2006/07 onwards of:  (a) any of the land tax assessments issued to Silkchime; and (b) any valuations of the Land.  Further, Mr Carey says that neither he nor the other directors of Silkchime were in a position to object to any valuations of the Land and that the receivers had not informed him of what they had done, if anything, in relation to the assessments of land tax on the Land.

4. According to Mr Carey, it was in about 2009 that proceedings were instituted against the receivers where it was alleged the receivers had mismanaged the affairs and finances of Silkchime (and other Westpoint companies) and sought an order compelling the receivers to retire.

5. Following the retirement of the receivers on 6 March 2019, Mr Carey said one of the first documents which was drawn to his attention was a letter from the State Solicitor's Office dated 28 February 2019 alleging Silkchime owed $717,556 in unpaid land tax on the Land.  He instructed his solicitor, Mony de Kerloy, to respond to the State Solicitor's Office.

6. Mr Carey says that when he resumed duties as a director of Silkchime he obtained from the receivers the records which they had kept during the receivership.  He found the records did not accurately describe the cash receipts and payments and failed to record any accruals.  He consequently requested the source documents from the receivers.  Upon receipt of those documents, Mr Carey said he collated and verified Silkchime's financial information.

Planning evidence

1. Both Mr Rowe and Ms Sparling are qualified and experienced town planners.

2. While they agreed the Land was zoned 'commercial' under the City of Joondalup District Planning Scheme No 2 (DPS 2) (which was in place from 27 March 1991 until 2018 when the City of Joondalup Local Planning Scheme No 3 was gazetted), they disagreed as to whether the development of the Land required a structure plan. 

3. Ms Sparling was confident that no structure plan was required by the City of Joondalup (City) in relation to the development of the Land between 2005 and 2013. 

4. On the other hand, Mr Rowe was adamant that in discussions between representatives of his firm, Greg Rowe and Associates (as it then was) and the City, the City's representatives made it clear that a structure plan would be required before it would approve any development of the Land.  This discussion is evidenced in an email dated 10 March 2006 from Mr Lynden Semmens, a town planning consultant employed by Greg Rowe and Associates to Mr Mike Fitzgerald, a former employee of Westpoint.

5. Mr Rowe explained that Mr Carey had instructed him in about 2009 that he wanted a structure plan, with a view to applying to the City for approval to develop the Land for mixed residential and commercial use.  The structure plan was submitted to the City on 9 March 2010 to which the City responded that the structure plan was 'premature'.

Valuation evidence

1. Both Mr Kish and Mr Hebbard are qualified and experienced valuers. 

2. The difference in approach taken by the valuers hinges on the question of whether a structure plan would have been required in order to value the Land for unimproved value purposes.

3. Mr Kish prepared his valuation with the instruction to allow for a deferral period or an adjustment to allow for the requirement for the structure plan.  Mr Kish's valuation allowed for a deferment of about seven years to allow for the structure plan.  At hearing, Mr Kish explained that the time period for a structure plan would be driven by the developer in a competitive purchasing environment.  Mr Kish stated that the structure plan period will come down to the 'risk profile' that the developer wants to take.

4. Mr Hebbard prepared his valuation on the basis there is no requirement for a structure plan.

5. Mr Kish's calculations excluding any deferral period and those of the valuation roll are within ten percent of each other.  Mr Kish accepted that if no deferral period applied to his figures, then the 'valuation roll figures are about right'. 

1. We will now set out the issues to be determined in this matter, followed by the legal framework relevant to this proceeding by reference to the relevant provisions of the VL Act, and we will then make relevant findings of facts and set out the parties' main contentions. Finally, we will address each of the issues for determination in turn.

Issues for determination

1. In this proceeding Silkchime contends that the Valuer-General should exercise his discretion to grant an extension of time for service of objections to valuations contained in the assessment notices issued for the relevant period.

2. The issues for determination in this proceeding are:

   Issue 1: Whether Silkchime has shown 'reasonable cause' (as required by s 32(6) of the VL Act) for the time for service of objection to be extended for one or more of the years in the relevant period?

   Issue 2:        If 'yes', should the Tribunal exercise its discretion to extend the time for service of the objection for one or more of the years in the relevant period?  What factors, if any, can be taken into consideration by the Tribunal in exercising its discretion?

Statutory framework

1. Part IV of the VL Act deals with objections and reviews. Section 32 of the VL Act deals with objections to valuations and relevantly provides:

   (1)Any person liable to pay any rate or tax assessed in respect of land who is dissatisfied with a valuation of such land made under Part III, may serve upon the Valuer General or any rating or taxing authority a written objection to the valuation ­

   (a)in the case of land the subject of a general valuation, within 60 days after the date on which the making of the valuation was notified in the Government Gazette under section 21 or section 22; and

   (b)in any case where the valuation is the basis of the assessment by a rating or taxing authority of any rate or tax, within 60 days after the issue of such an assessment.

   …

   (6)The Valuer General may, for reasonable cause shown by a person entitled to make an objection, extend the time for service of the objection for such period as the Valuer General considers reasonable in the circumstances and whether or not the time for service of the objection has already expired.

2. As explained below, this decision turns on the application of s 32(6) of the VL Act.

3. Section 36A of the VL Act provides that the Tribunal may consider reasons in addition to any reasons previously given for the Valuer­General's decision that is under review. The section provides:

   (1)Upon a review by the State Administrative Tribunal on a referral under section 33 or 35, the State Administrative Tribunal may consider ­

   (a)grounds in addition to those stated in the notice of objection; and

   (b)reasons in addition to any reasons previously given for the Valuer General’s decision that is under review.

   (2)The State Administrative Tribunal is to ensure, by adjournment or otherwise, that each party and any other person entitled to be heard has a reasonable opportunity of properly considering and responding to any new ground or reason that the State Administrative Tribunal proposes to consider in accordance with subsection (1).

4. Finally, in our view, the issues for determination in this matter concerning s 32(6) of VL Act are of general interest and of significance. Therefore, we have published these reasons, in accordance with s 36B of the VL Act, which provides that written reasons for certain determinations is to be given and published. The section provides:

   (1)If the State Administrative Tribunal considers that an order it makes determining a matter coming before it on a referral under section 33 or 35 is of general interest or significance, it is to prepare written reasons for its order and give a copy of the reasons to each party and publish the written reasons.

   (2)Subsection (1) has effect in addition to the provisions of the State Administrative Tribunal Act 2004.

Factual background

1. We note the key facts are not in any real dispute.  We make the following findings of fact which are relevant to the issues (set out above at [51]) to be determined by us in this proceeding:

   a)Silkchime is a company incorporated under the Corporations Act and is the registered proprietor of the Land.

   b)Mr Carey is a director of Silkchime.

   c)Mr Carey and the property manager at the time considered the valuation of the Land was reasonable and did not object to the valuation for 2005/06.

   d)On 10 March 2006 Mr Carey received a copy of the email from Mr Lynden Semmens of Greg Rowe and Associates (as it then was) to Mr Mike Fitzgerald on the same date.  It concerned the 'mixed-use' proposals for the Land.

   e)Between 24 January 2006 and 6 March 2019 Silkchime was under the control of the receivers.[15]

   [15] The receivers were partners in the accounting firm, Korda Mentha (Exhibit 1, at page 285).

   f)The receivers paid some of the assessment notices on the Land between 2006/07 and 2010/11 and the balance was paid on settlement of court proceedings in 2011.  The receivers paid no land tax or other statutory changes in relation to the Land post 2010/11.

   g)The receivers took no steps to challenge the assessment notices on the Land for any of the years in the relevant period.

   h)Mr Carey wrote to the Office of State Revenue on 20 February 2014, 23 January 2017 and on 22 March 2019.

   i)Mr Carey wrote to the State Solicitor's Office on 27 April 2018 in reply to a letter from the State Solicitor's Office dated 5 April 2018.

   j)On 26 September 2018 the Commissioner of State Revenue issued to the receivers a Land Tax Notice of Assessment for outstanding amounts for the Land in respect of the 2011/12 to 2018/19 financial years inclusive.

   k)The receivers retired on or around 6 March 2019 following the settlement of disputes.

   l)On 16 July 2019 Silkchime objected to the valuation for each of the 2005/06 to 2019/20 financial years inclusive.[16]

   m)On 15 November 2019, Silkchime lodged an application for an extension of time for service of an objection to the assessment of the unimproved value for the Land at the relevant date of valuation of 1 August 2004 to 1 August 2012 which covers the relevant period.

   n)On 28 January 2020, the Valuer-General refused to grant Silkchime's application to extend time for service of an objection in respect of each year in the relevant period (refusal decision).

   o)On 6 February 2020, Silkchime served notice on the Valuer-General requesting for the refusal decision to be referred to the Tribunal for review.

   p)On 16 March 2020 the Valuer-General referred to the Tribunal, Silkchime's request for review of his refusal decision.

Parties' main contentions

[16] Exhibit 1, at page 187.

1. Silkchime's position is that it could not sensibly bring any challenge to the valuations of the Land in the relevant period until the receivers were forced to retire in March 2019, because of factors outside of its control.  The factors included that the receivers controlled the Land and that a reasonable person would conclude that the receivers had no real concern and no duty or obligation to resolve issues concerning the proper value of the Land, unless it happened to suit the interests of their appointer.

2. The Valuer-General's position is that the receivers were entitled to object to the valuations within the relevant period and no reasonable cause has been shown for their failure to do so.  In the alternative, the Valuer-General says that if it is accepted by the Tribunal that the ability of the directors of Silkchime to make an objection is a relevant factor, then it could not be said that a delay of some four months after taking control of Silkchime on or about 6 March 2019 was necessary to determine whether an objection ought to have been taken to the unimproved value assessed for the Land.

3. We now turn to address each of the issues identified at [51] above.

Consideration

Issue 1: Whether Silkchime has shown 'reasonable cause' (as required by s 32(6) of the VL Act) for the time for service of objection to be extended for one or more of the years in the relevant period?

Reasonable cause

1. We start by considering the meaning of 'reasonable cause' which is used in s 32(6) of the VL Act (refer above at [52]).

2. There is agreement between the parties on the meaning of the term 'reasonable cause' which was coined by Sholl J of the Supreme Court of Victoria in Quinlivan v Portland Harbour Trust [1963] VR 25 (Quinlivan). His Honour stated at 28:

   …

   I then turn to what seems to me quite a different question, namely, whether the applicant had reasonable cause for the omission to give the notice in this case, or, to put it, perhaps, more accurately, whether the failure to give the required notice was occasioned by any reasonable cause.  One asks at once:  

   'Reasonable in what sense?' I think the subsection means to refer to cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man[.]

   (added emphasis in bold)

3. The Full Court of the Supreme Court of Victoria (Herring CJ, Lowe and Dean JJ) in Black v City of South Melbourne [1963] VR 34 cited Quinlivan with approval. Their Honours stated at 38:

   …

   … The expression 'reasonable cause' appears to us to mean some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances, reasonable[.]

4. More recently, the Full Court of the Supreme Court of Western Australia (Burt CJ, Jones and Smith JJ) in Stevens v Motor Vehicle Insurance Trust [1978] WAR 232 stated at [235]:

   [W]hat one is looking for is some 'cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay' the taking of action 'by a reasonable man'[.]

   (added emphasis in bold)

5. Counsel for Silkchime submits that the term 'reasonable cause' means cause for the delay, in this case in objecting to the assessment notices, which a reasonable person would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay, in this case, the service of an objection(s) to the assessment notices, by a reasonable person. 

6. In other words, it is the kind of thing which might be expected to delay the service of an objection is what we need to satisfy ourselves about in order to decide whether we should exercise the Tribunal's discretion to extend the time to object in this case, that counsel for Silkchime says is the way we should approach s 32(6) of the VL Act.

7. In Quinlan and the other cases set out above, other things, such as 'mistake' and 'mistake of fact' were expressly included in the relevant enabling section, in addition to 'reasonable cause', which could also provide a basis for, in those cases, a grant of leave. That is not the case in s 32(6) of the VL Act. The section only uses the term 'reasonable cause'.

8. The decision in Quinlan and the other cases did not go beyond examining the words of the relevant section of the statute and on that basis, counsel for Silkchime submit that we should limit ourselves to examining whether there is a 'reasonable cause' for the delay in lodging the objections against the assessments, and therefore it is not necessary for the Tribunal to embark upon examining any other matters, such as the length of the delay, the prospects of success or whether there has been any material prejudice.  Counsel for Silkchime submit that we would fall into error should we consider any other matters.

9. Counsel for Silkchime submit that Judge Nominees is distinguishable from the matter before us.  This is because, the matter before us, according to counsel for Silkchime is not a case about the applicant (company) not realising it had a right to object, or not bringing forward matters, rather Silkchime did not know what the valuations of the Land for the relevant period were until the receivers were forced to retire in March 2019.

10. As already noted, Judge Nominees is a case that concerned s 32(6) of the VL Act. In that case the LVT held at 67-68:

    To the extent that the Tribunal now finds itself in the position of the respondent in determining whether it is reasonable in the circumstances to extend the time within which the appellant may object to the valuations, the Tribunal is not satisfied that any reasonable cause has been shown by the appellant or that it is appropriate in all of the circumstances to extend time in which the appellant may object to valuations affecting the subject property.

11. In our view, s 32(6) of the VL Act is specific. It requires the Valuer­General (and the Tribunal on review) in considering whether to exercise his discretion (or the Tribunal's discretion on review) to extend the time to object to be limited to the express requirements of the section in the context of the statutory framework of the VL Act for objections to assessments which are required to be made within 60 days after the date of gazettal of the valuation or upon issue of an assessment by a rating or taxing authority. This means, in our view, the Valuer­General (and the Tribunal on review) must be satisfied that the person entitled to make the objection (in this case, Silkchime), has shown 'reasonable cause', that is a cause which a reasonable person would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing that might be expected to delay the service of an objection by a reasonable person.

12. To the extent that the LVT in Judge Nominees and the Tribunal[17] in Ninan went on to consider other factors, (apart from satisfying themselves whether there was 'reasonable cause' for the delay), in their determination of the matter under s 32(6) of the VL Act we do not agree with that approach.

    [17] Mr P McNab, SM.

13. We will now consider whether Silkchime has shown 'reasonable cause', of the kind of thing that might be expected to delay the service of an objection(s) to the valuations for the relevant period by a reasonable person.

2005/06

1. It is Mr Carey's evidence that he was aware of his right to object to the valuation for 2005/06 but that he did not seek any professional advice at the time he received the 2005/06 assessment notice in about September 2015 because he and the property manager at the time considered it was a fair and reasonable valuation of the Land.[18]  

   [18] Exhibit 1, at page 288.

2. Further, it is Mr Carey's evidence that he obtained expert advice from Mr Semmens in an email dated 10 March 2006[19] that suggested the valuation may not be correct.

   [19] Ibid, pat pages 266-267.

3. We note Mr Carey makes no reference to this expert advice from Mr Semmens in his witness statement which is very detailed and covers many matters over some 104 paragraphs.  Rather, at paras 87 to 89 of his witness statement, Mr Carey describes the 'enormous increase on the valuation … which had been made in the 2005/2006 assessment, and had been the last assessment on which Silkchime had paid land tax prior to the appointment of the [receivers]' and 'it seemed to be an enormous increase in the valuation of the Land when, in the period from 24 January 2006 to 26 September 2018 Silkchime had not been able to develop and had not developed any of the Land'.[20]  

   [20] Ibid, at page 295.

4. We infer from Mr Carey's witness statement that even if he received expert advice from Mr Semmens (albeit it is not stated in his witness statement), Mr Carey sought to make an objection against the assessment notices for the relevant period for Silkchime on the basis there was an 'enormous increase' in the valuation.

5. Counsel for the Valuer-General submits that Mr Carey's evidence is that he reviewed the assessment for 2005/06 during the period in which an objection could have been made (without the need to seek an extension of time).  Counsel for the Valuer-General submits that no good reason would support an extension of time based on a change of mind more than 14 years later.

6. The objection was made by Mr Carey more than 14 years after the assessment was issued where his evidence is that at the time he thought it was a fair and reasonable valuation of the Land.  Further, the objection is well after the 10 March 2006 email which Mr Carey referred to in giving evidence that he received which suggested to him that the valuation may not be correct.  Mr Carey knew what the assessment (and valuation of the Land) was for 2005/06 yet when he received the email on or about 10 March 2006 from Mr Semmens, which he says suggested the valuation may not be correct, he did nothing about it until March 2019, that is some 13 years later.

7. As already noted, the VL Act contemplates very prompt action being taken by persons entitled to object (see s 32 of the VL Act). In our view, these are not the kind of things which might be expected to delay the taking of action by a reasonable person in respect of the 2005/06 assessment notice.

2006/07 through to 2013/14

1. During the relevant period the receivers did pay some of the land tax between 2006/07 and 2010/11.  At a point in about March 2011 Silkchime and Westpac reached settlement whereby Westpac agreed to pay the outstanding land tax on the Land to that point in 2011.  The other receivers which were appointed by different lenders to Silkchime did not pay any land tax and shortly before they were forced to retire in March 2019, the outstanding land tax in relation to the Land was in excess of $700,000.  From 2010 to 2013/14 the assessment notices in relation to the Land were not paid by the receivers but they were also not objected to.

2. Mr Carey knew of his right to object.  However, Silkchime's difficulty according to Mr Carey was that it did not have the assessment notices and therefore it did not have the land valuations and so it did not know what the valuations were in the relevant period because of some quiet extraordinary circumstances.  Those circumstances were that on 24 January 2006 an inquiry by the Australian Securities and Investments Commission triggered a clause in a line facility which led to receivers being appointed to Silkchime and, as a result, all the books and records went to the receivers.

3. The receivers conducted the business for some 13 years until early March 2019, and in those circumstances, counsel for Silkchime say it was very difficult, if not impossible to object when the valuations were not known and to also keep the Valuer-General informed of matters which may affect the valuation, as advocated by the LVT in Judge Nominees, because they were outside the control of Silkchime. 

4. Counsel for Silkchime submit that the receivers were there to satisfy those who appointed them to make sure their debt was paid, but otherwise the receivers were complete strangers to Silkchime.  Counsel for Silkchime submit that a reasonable person would conclude that the receivers had no real concern and no duty or obligation to resolve issues concerning the proper value of the Land unless it happened to suit the interests of their appointer.

5. It is counsel for Silkchime contention that once the receivers took control of Silkchime, the directors of Silkchime had no control over the assets, for example the Land, and no access to the books and records of Silkchime with the consequence that the ability of the directors was limited both legally and commercially.  Further, counsel for Silkchime submit the directors of Silkchime during the receivership had no legal standing to bring proceedings in the name of Silkchime.  In conclusion, counsel for Silkchime submit that the receivers having control of the Land for the receivership period provides a full and reasonable explanation as to why no earlier objection to the assessment notices was lodged by Silkchime.

1. Mr Carey gave evidence that he expected the receivership to be short but after a bitterly fought litigation the receivers were forced to retire after some 13 years in 2019.  Mr Carey stated the receivers would not provide him with any information or materials which meant he did not have access to the very necessary things that he needed to have for the purpose of making the objections.  On that basis, Mr Carey invited us to infer that the receivers were not in the slightest interested in objecting to any of the valuations and in any event the receivers did not have the knowledge of the Land that he and Silkchime had.

2. It is these events or situations which counsel for Silkchime say is the sort of thing that would be expected to delay the lodging of an objection by a reasonable person.  In other words, counsel for Silkchime invited us to conclude that from Mr Carey's lack of access to the assessment notices between 24 January 2006 and 6 March 2019 that is exactly the kind of thing that would cause a reasonable person to delay lodging an objection.

3. Counsel for the Valuer-General submits that the evidence taken holistically, both the written and oral evidence, points to a reasonable cause not being established in this case.  In other words, counsel for the Valuer-General says that there is no existence of the kind of thing that might be expected to delay the service of an objection by a reasonable person for any of the years in the relevant period.

4. Counsel for the Valuer-General submits that even though much was made about Mr Carey being unaware of the assessment notices while Silkchime was in receivership, the receivers were in control of Silkchime at the time and therefore the receivers were entitled to object, which they did not.  Counsel for the Valuer-General submits that it cannot be the case where Silkchime is in receivership and the fact that, as a result, assessments were not provided to the director(s), constitutes a reasonable cause for failing to lodge an objection.  If it were, submits counsel for the Valuer-General, a potential contingent liability for rating and taxing authorities would arise whenever a company enters into receivership on the basis the directors were unaware that assessments had been made and issued.

5. Silkchime's position is that receivers were appointed by first mortgagee financiers.  This appears to be a private appointment.[21]  The duty of a privately appointed receiver is to take possession of, manage and realise the charged assets with a view to applying the proceeds in reduction or settlement of the debenture holder's debt.[22]  Silkchime says that the receivers paid the earlier year assessment notices that arose from valuations that are in issue in this proceeding. 

   [21] Debenture document or other documents which gave rise to the appointment of the receivers is not in evidence.

   [22] Lanepoint Enterprises Pty Ltd (recs and mgrs apptd), Re; Fraser v Australian Securities and Investments Commission (ASIC) (2007) 159 FCR 424 at [36].

6. We note that s 240(k) and s 240(l) of the Corporations Act provide that receivers have the power to object to the valuation of the Land pursuant to s 32 of the VL Act in any or all of the years in the relevant period. The evidence of Mr Carey is that the receivers did not object to any of the assessment notices.

7. It is Mr Carey's evidence that he was aware of the land tax debt some time shortly after the letter of the State Solicitor's Office dated 28 February 2019.[23]  Further, Mr Carey indicated that he knew how land tax was calculated and that he understood what the outstanding tax bill suggested about the valuation of the Land.  This is because he gave evidence that he thought the valuation of the Land should have been three times less, perhaps in the order of $200,000 as he was roughly familiar with the value of the Land.  Further, Mr Carey explained that in 2009 the directors took proceedings against the receivers which resulted in one set of receivers being forced to retire in 2011 and the other set of receivers in 2019.[24]

   [23] Ibid, at page 181A.

   [24] Ibid, at pages 290-291.

8. In cross-examination, Mr Carey testified that he was unable to identify the exact date he received a copy of the assessment notices but stated it was some three to four months approximately after the receivership in 2019 had ended.  This is such a vague response, in our view, when Mr Carey gave evidence that he had raised the question of obtaining the land tax assessments with his lawyer on a weekly basis after the receivership was concluded and control of Silkchime was reverted to him and the other directors on 6 March 2019.  This can only lead us to the conclusion, in the context where ordinarily a person is expected to act within 60 days after becoming aware of the assessment notices, that Mr Carey failed to act promptly once he was aware of the outstanding land tax per the letter of 28 February 2019.  In our view, it was open to Mr Carey on or shortly after 6 March 2019, when the receivers retired and control of Silkchime was returned, to contact the State Solicitor's Office to obtain a copy of the assessments or to telephone the Office of State Revenue (details of which were provided in the letter of 28 February 2019) to obtain a copy of the assessments.

9. Counsel for the Valuer-General submits that it is difficult to accept Mr Carey's evidence that he was aware of the Commissioner of State Revenue's notice of intention to commence legal action against Silkchime (as set out in the letter of 20 February 2014),[25] and knew of an outstanding land tax debt, but was unaware of the amount due, when he wrote to the Commissioner of State Revenue in 2014 and 2017 and to the State Solicitor's Office in 2018 in his capacity as a director of Silkchime, where he expressed an intention to pay the outstanding tax when he could.[26]  

   [25] Ibid, at pages 220-221.

   [26] Ibid, at pages 220-224.

10. In our view, Silkchime (as distinct from Mr Carey in his capacity as a director) had the opportunity to make an objection via its receivers.  The evidence before us is that the receivers paid some of the assessments from 2006/07 to 2010/11 and chose not to object to any of the assessments.  Whether the directors of Silkchime (who at the time had no power because of the receivership) would have objected is of no consequence, in our view. 

11. Further, in our view, Silkchime (by its receivers), or Mr Carey did have the opportunity to access the unimproved valuations of the land anytime after the commencement of the receivership period through the operation s 29 of the VL Act. For example, Mr Carey could have requested the unimproved valuations in 2014 and 2017 when writing to the Commissioner of State Revenue and in 2018 when writing to the State Solicitor's Office. On obtaining the unimproved valuations, it would have been a relatively simple exercise to calculate or at least estimate the land tax liability for any of the years in the relevant period. That information could have been provided to the receivers if the valuations were considered to be incorrect and a request made to lodge an objection for Silkchime.

12. Submissions made by counsel for Silkchime that the receivers did not advance Silkchime's interest and had no real concern regarding issues concerning the proper value of the Land unless it happened to suit the interests of their appointer, do not, in our view, support the conclusion of a reasonable justification for the receivers not objecting to the assessment notices.  There is no evidence before the Tribunal that the legal proceedings taken against the receivers extended to a failure on the part of the receivers to object to the valuation of the Land relevant to this proceeding.

13. Ultimately, we find that Silkchime has not shown 'reasonable cause' in its delay in objecting to the assessments for any of the years in the relevant period.

Issue 2:  Should the Tribunal exercise its discretion to extend the time for service of the objection for one or more of the relevant period?  What factors, if any, can be taken into consideration by the Tribunal in exercising its discretion? 

1. Counsel for Silkchime submit that in exercising its discretion to extend the time for service of the objection, the Tribunal should do so without reference to any other factors, as no other factors are expressed in the enabling section being s 32(6) of the VL Act.

2. Ninan deals with an application for extension of time, amongst other things.  At [62] the extension of time is dealt with as follows:

   The respondent submits that the ordinary principles concerning such matters (for example, the length of time; the explanation for the delay; and the prejudice to the other party – see the discussion found in Judge David Parry and Dr Bertus De Villiers' Guide to Proceedings in the WA State Administrative Tribunal (1st ed, 2012) at pages 67 - 69) are applicable here.  I agree.  Further, the respondent submits that the Tribunal's discretion should be not be exercised in favour of the applicants.  I also agree with that submission.

3. Counsel for Silkchime submit that the wrong test was used in Ninan because what Parry J and Dr De Villiers were writing about at pages 67 to 69 of their book is really the general power of the Tribunal to extend time under r 10 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), which is couched in general terms.

4. Rule 10 of the SAT Rules provides:

   10.Extension of time limit

   (1)The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.

   (2)Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension was made or the Tribunal on its own initiative considered extending the time.

5. In regards to r 10 of the SAT Rules, counsel for Silkchime submit:

   There's no specific ground for extending the time put in that, so if – and the general rule is that if there's no specific ground stating an extension of time provision, these general requirements apply.  So, we say that, to the extent that he [Senior Member McNab] proceeding in that case very shortly with respect to in paragraph 62, that was the wrong test.

6. In short, counsel for Silkchime say no other factors are to be considered by the Tribunal in exercising its discretion under s 32(6) of the VL Act. Unlike cases about limitation of action and leave to appeal out of time and things of that nature, counsel for Silkchime submit that this case is in a different category and that is why the legislature states that you can extend time to object but only for reasonable cause, as opposed to the other general factors.

7. Counsel for the Valuer-General submits that if, and only if, the Tribunal finds that there is a 'reasonable cause' (as required by s 32(6) of the VL Act), then the Tribunal may consider the further discretionary factors in deciding whether to exercise its discretion to extend the time for service of the objection.[27]

   [27] ts 142 , 21 October 2021.

8. On the basis that if the Tribunal may consider other factors, the parties agree there are four matters to be considered as follows:

   a)length of delay;

   b)reason for delay;

   c)material prejudice; and

   d)arguable case or prospect of success.

9. Counsel for the Valuer-General accepts that 'reasonable cause' is the predominant factor, however the above factors may be relevant in the exercise of the Tribunal's discretion.

10. In our view, as we concluded that Silkchime has not shown reasonable cause as required by s 32(6) of the VL Act, the matter is at an end (see above at [60] to [97]). Therefore it is not necessary for us to determine if the Tribunal may consider other factors in exercising its discretion.

11. However, for completeness, we will go on to briefly work through each of the four factors on the basis of the evidence before us and the submissions made by counsel for each party.  We conclude, that even if we were to find that Silkchime has shown 'reasonable cause' for the purposes of s 32(6) of the VL Act (which we have not so concluded), and if other factors may be taken into consideration in exercising our discretion (which we have not concluded), we would not exercise the Tribunal discretion to extend the time to object to the assessments for any of the years in the relevant period.

Length of delay

1. Counsel for Silkchime accept that the delay was certainly long in this case.  However, counsel for Silkchime say that the Valuer-General has already taken that into account to some extent because he granted an extension of time to object from 2014/15.  Further, counsel for Silkchime submit that ultimately the objections deal with a single issue for all of the relevant years.  That is, if a 'structure plan' was required there would need to be a deferment in a way that Mr Kish has gone about it in his valuation report.  Similarly, Mr Hebbard accepted that if a 'structure plan' was necessary then there would need to be a deferment allowed for in the valuation.

2. Counsel for the Valuer-General submits that the length of delay is excessive, up to 14 years.  The length of delay is a determining factor in the grant of an extension.  Counsel for the Valuer-General acknowledged that the Valuer-General granted an extension of time to objection for the 2014/15 to 2018/19 years, however for those years the length of delay involved was comparatively less in length than the delay for the relevant period.  Further, counsel for the Valuer-General submits that there is no suggestion that the receivers had any concern in relation to the unimproved valuations for the Land and they paid the land tax assessment for the earlier years of the relevant period.

3. Silkchime (correctly) acknowledged that the length of the delay was significant.[28]  By any measure, in our view, the length of delay is significant and strongly supports against the exercise of discretion to extend the time to object. 

   [28] Exhibit 1, at page 23.

4. There is also a delay of some four months from March 2019 when the receivers were forced to retire until the objections were lodged in July 2019 which according to Mr Carey was because he did not have the books and accounts or control of the company for 13 years.  Counsel for Silkchime say that whilst there is a delay of four months from March 2019 to July 2019, the delay is understandable in the circumstances of Mr Carey being kept out of the company for 13 years and then having to go back in and to try to run the company dealing with numerous issues, not the least of which, was the debt in excess of $700,000 for land tax.

5. We do not accept that Silkchime lodged objections at the first reasonable opportunity after retirement of the receivers in about March 2019.  A further delay of four months from March 2019 to when the objections were finally lodged in July 2019 reflects that Silkchime did not attend to the objections promptly.

Reason for delay

1. Counsel for Silkchime and counsel for the Valuer-General agree that this factor is another way of saying 'reasonable cause' which has already been dealt with earlier (see above at [60]­[96]).

Material prejudice

1. Counsel for Silkchime submitted that there is no material prejudice to the Valuer-General.  Mr Hebbard gave evidence that it will be difficult and onerous, but not impossible to do the valuations.  Both Mr Kish and Mr Hebbard used sales evidence that was available to them to complete their respective reports for this proceeding.

2. In written submissions, counsel for Silkchime stated that prejudice to the Valuer-General was limited for two reasons:  (a) the land affected is limited to the Warwick commercial area and then only to the undeveloped land in that area; and (b) the rates and taxes on the Land have not been paid since 2012.[29]  Further, counsel for Silkchime say that the prejudice is minimal because:[30]

   a)the objection raises only one matter;

   b)there can be no real difficulty in determining, as a matter of fact and law, the relevant planning policies which applied, and the effect those polices have had on the value of the Land since 2005/06;

   c)the policies and changes thereto are all readily available;

   d)there can be no particular difficulty in assessing the impact those policies have had on the value of the Land in the relevant period;

   e)the only affected land (other than the Land) is land contained in the Warwick commercial area;

   f)because of strictures on development, there has only been one sale and that sale did not disclose to potential buyers the development strictures; and

   g)the 'task' confronting the Valuer-General is not onerous because of the very limited land affected and the very limited issues involved.

   [29] Ibid, at page 277.

   [30] Ibid, at page 278.

3. Counsel for the Valuer-General submits that full valuation rolls are available back to the first relevant date of valuation, being 1 August 2004.  However, counsel for the Valuer-General submits that information such as record of sales evidence that would have been available had the objections been made within time, now no longer exists extending back to 2004.  Further, the relevant planning framework that was in place at the material dates of valuation going back to 2004 are no longer readily available.  Also, according to counsel for the Valuer-General submits that the effluxion of time has made it difficult for the Valuer-General to independently confirm the accuracy as to whether a 'structure plan' was required.  Counsel for the Valuer-General also submits that if Silkchime's application is granted, this would require 40 valuations to be undertaken (for five properties over eight valuation years) which is onerous as the valuation information would need to be recompiled.

4. We do not accept Silkchime's position that neither the Valuer-General, Office of State Revenue or any other rating authority is prejudiced by Silkchime's delay on the basis that none the authorities had taken steps to enforce outstanding taxes and rates. 

5. In our view, there is material prejudice to the Valuer-General.  This is because information, such as record of sales evidence dating back to 2004 that would have been readily available to the Valuer­General had the objection been made within time, now no longer exists.  The valuation analysis is further complicated because the Valuer-General will need to clarify the applicable planning framework which is historical and deals with a repealed planning scheme.  Finally, to the extent that adjustments in rates and taxes and land tax would be required if the valuations were altered, in our view, the flow-on effect to other parties, including the local authority, would be significant.

Arguable case

1. Counsel for Silkchime submit that Silkchime is not required to convince us, and the Tribunal does not have to find, that Silkchime's objections as to valuation would succeed or that they are meritorious.  All that is required, submits counsel for Silkchime, is that there is an arguable case and that threshold is not particularly onerous (referring to Smith and City of Wanneroo [2008] WASAT 182 (Smith and City of Wanneroo) at [34]).

2. In this case, counsel for Silkchime say there are two issues.  First, is whether the 'structure plan' is necessary.  The evidence of Ms Sparling and Mr Rowe differ about whether the 'structure plan' is necessary where Ms Sparling's evidence is that under the existing DPS 2 and  State Planning Policy No 9 – Metropolitan Centres Policy Statement for Perth Metropolitan Region there was no requirement for a 'structure plan' where the Land is in commercial zone.  However, Mr Rowe's evidence is that from his practical experience the City required a 'structure plan' and the contemporaneous evidence of the email of 10 March 2006 supports the view that a 'structure plan' was required.  The second issue is the actual impact and effect which the planning policies have had on the unimproved value of the Land.  The issues concern each year in the relevant period.  These issues, counsel for Silkchime submits, give rise to an arguable case.

1. Counsel for the Valuer-General submits that if there is no arguable case then an extension of time should not be granted as it would be futile (referring to Kirby J in Jackmarra v Krakouer and Anor (1998) 195 CLR 516 at 540). However, the existence of an arguable case, submits counsel for the Valuer-General, is not in and of itself determinative that an extension of time ought to be granted (referring to Smith and City of Wanneroo at [31]).

2. In this case, counsel for the Valuer-General submits that there is a difference in approach between the valuations, that is the calculations by Mr Kish and the valuation roll figures hinge on whether a 'structure plan' was required to be undertaken to be consistent with the assumptions that one ought to make in valuing the Land for unimproved valuation purposes.  Mr Kish gave evidence that if no deferral period applied to his figures (in respect of a 'structure plan' which he was instructed to assume was required, and based on his discussions with Mr Rowe, he formed the view that a seven year deferral was required as a result of that requirement) then the valuation roll figures are about right.

3. In our view, it is not clear in this case, whether there is an arguable case.  The evidence of the expert planners differs significantly.  Mr Rowe says a structure plan was required.  That appears to be in the context of the email of 10 March 2006 where a 'mixed use' (commercial and residential) proposal was being considered where the Land is zoned commercial.  Ms Sparling was of the opposite view, that is, no structure plan was required.

4. We note that in Judge Nominees there was a basis to change the valuation in accordance with the valuation policy and so there was an arguable case.  Notwithstanding this, the LVT was not persuaded to exercise its discretion to grant the extension of time.

5. Even if there was an arguable case, (assuming there is a 'reasonable cause' which we do not conclude) we would still not exercise the Tribunal's discretion to extend the time to object for any of the years in the relevant period based on the other factors being the length for delay, the reasons for delay and material prejudice.

Conclusion

1. The VL Act requires an objection to be made promptly - within 60 days after the date of gazettal of the valuation or upon issue of an assessment by a rating or taxing authority (s 32 of the VL Act). An ongoing contingent liability for rating and taxing authorities for refunds is unsatisfactory (Judge Nominees at [67]). However, s 32(6) of the VL Act provides that the Valuer-General (and the Tribunal on review) may for reasonable cause shown by the person entitled to make the objection, extend the time for service of the objection for such period as the Valuer-General (and the Tribunal on review) considers reasonable in the circumstances and whether or not the time for service of the objection has already expired.

2. For the reasons set out above, we are not satisfied that Silkchime has shown reasonable cause as required by s 32(6) of the VL Act. In other words, we do not accept the reasons given by Silkchime to be reasons which a reasonable person would consider to be the kind of thing that might be expected to delay the service of an objection by a reasonable person. Consequently, we would affirm the decision of the Valuer­General to refuse extend the time for service of an objection for each of the 2005/06 to 2013/14 years inclusive. This means Silkchime's application is unsuccessful.

Orders

The Tribunal orders:

1.The decision under review not to extend the time for service of an objection for each of the assessment notices issued to applicant in respect of each of the 2005/06 to 2013/14 years inclusive is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS R PETRUCCI, MEMBER

29 NOVEMBER 2021