Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water

[2010] QLC 71

LAND COURT OF QUEENSLAND

CITATION:	Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water [2010] QLC 0071
PARTIES:	Solon Theo Family Trust (appellant)
v.
Chief Executive, Department of Natural Resources and Water (respondent)
FILE NOS:	AV2008/0070, AV2008/0071, AV2008/0350, AV2008/0351, AV2008/0352, AV2008/1012
DIVISION:	Land Court of Queensland
PROCEEDING:	Appeals against annual valuations under Valuation of Land Act 1944
DELIVERED ON:	13 April 2010
DELIVERED AT:	Brisbane
HEARD AT:	Hervey Bay and Brisbane
MEMBER:	Mr PA Smith
ORDER:	The appeals are dismissed. The respondent granted until 4pm 14 May 2010 to consider its position with respect to costs and to file and serve any formal application supported by submissions.  Should the respondent seek costs against the appellant, including against Mr Theo personally, I grant the appellant until 4pm 11 June 2010 to file and serve submissions in response, and the respondent until 4pm 25 June 2010 to file and serve any submissions in reply.
CATCHWORDS:	Valuation – Factors in valuation – presumption in favour of correctness of valuation – credit of appellant’s representative – character of witnesses put in issue - previous decisions on same issues by same appellant relating to the same properties - costs - Valuation of Land Act 1944
APPEARANCES:	Mr S Theo for the appellant Mr Isdale of Counsel, Crown Law, for the respondent

Background

1. This is an appeal by the appellant against 6 valuations by the respondent, pursuant to the Valuation of Land Act 1944 (the VLA).  The details of each appeal are as follows:

Solon Theo Family Trust v Chief Executive, Department of Natural Resources and Water

Schedule of Appeals

Appeal number	Property Address	Real Property Description	Local Government Area (at date of valuation)	Date of Valuation	Issued Valuation	Appellant’s Valuation
AV2008/1012	Sandy Creek Rd, Downsfield	Lot 5 on RP 857417	Gympie Regional	01/10/2007	$160,000	$60,000
AV2008/0350	365 Redbank Rd, Tiaro	Lot 2 on SP 212875	Fraser Coast Regional	01/10/2007	$95,000	$55,000
AV2008/0071	4936 Bruce Highway, Bauple	Lot 1 on RP 185331	Fraser Coast Regional	01/10/2007	$119,000	$50,000
AV2008/0070	Main St Gundiah	Lot 4 on RP 23005	Fraser Coast Regional	01/10/2007	$28,000	$6,000
AV2008/0351	Paterson Rd, Paterson	Lot 10 on RP 187477	Fraser Coast Regional	01/10/2007	$121,000	$15,000
AV2008/0352	Paterson Rd, Paterson	Lot 9 on RP 187477	Fraser Coast Regional	01/10/2007	$121,000	$15,000

The hearing

1. The appellant was represented by Mr Theo, who gave evidence at the hearing. Mr Theo has no legal or valuation qualifications, although he has been involved in numerous appeals before this Court[1], including appeals relating to these properties for previous valuations.  The respondent was represented by Mr Isdale of Counsel, and relied on the evidence of two registered valuers, Mr P Mariner with respect to all appeals excepting AV2008/1012, and Mr P Haydon with respect to that appeal.

   [1] See [2005] QLC 0065; [2007 QLC 0060; [2008] QLAC 0227.

Relevant legislative provisions

1. Pursuant to s.13 of the VLA, the respondent is required to determine the unimproved value of the land.

2. Section 3(1) of the VLA says as follows:

   3    Meaning of unimproved value

   (1)        For the purposes of this Act―
                      unimproved value of land means―
   in relation to unimproved land -the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require; and
   in relation to improved land - the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist.

1. I note that the subject land in this matter is improved.  Accordingly, put simply, the task is to find the market value of the land on the assumption that none of the improvements are on the subject land.  An assessment is then undertaken as to the highest and best use of that land.

2. As then President Trickett said in Fairfax v Department of Natural Resources and Mines:[2]

   “The principles for determination of the 'market value' of land were established by the High Court in Spencer v The Commonwealth (1907) 5 CLR 418. In that case, the High Court found that the value of land is determined by the price that a willing but not over-anxious buyer would pay to a willing but not over-anxious seller, both of whom are aware of all the circumstances which might affect the value of the land, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding facilities, the then present demand for land and the likelihood of a rise or fall in the value of the property. (See Griffith CJ at 432 and Isaacs J at 441).

   It has been well established that the unimproved value of land is ascertained by reference to prices that have been paid for similar parcels of land. In Waterhouse v The Valuer-General (1927) 8 LGR (NSW) 137 at 139, Pike J said that:

   ‘Land in my opinion differs in no way from any other commodity. It certainly is more difficult to ascertain the market value of it but – as with other commodities – the best way to ascertain the market value is by finding what lands comparable to the subject land were bringing in the market on the relevant date – and that is evidenced by sales.’ ”

   I respectfully agree with these observations.

   [2] [2005] QLC 0011 at paras [11] and [12].

Presumption of correctness of valuation

1. I now turn to section 33 of the VLA, which states as follows:

   Status of valuation
   Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered.

2. This section was considered by the High Court in the case of Brisbane City Council v The Valuer-General for the State of Queensland[3] where Justice Gibbs (as he then was) made the following observation at page 56:

   “In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by s. 13(7) is rebutted.”

It should be noted that s.33 of the VLA is in essentially the same terms as what was then s.13(7) of the Act.

[3] 1977-78 140 CLR 41.

The issues in the appeal

1. I have deliberately taken some time over giving this decision, having produced a number of drafts along the way.  The reason is that, in one way, it is very easy to deal with each appeal with respect to each property in the standard manner in which I, and the other Land Court members, have traditionally dealt with annual valuation appeals.  The other draft approach I have undertaken is to go through a forensic evaluation of all of the evidence and actions of Mr Theo, emphasising that Mr Theo, on behalf of the trust, has essentially run the same arguments on appeal despite the previous rulings of the Court.  It could well be said that Mr Theo’s actions amount to a contempt of this Court and the valuation appeal process.

2. Mr Theo’s grounds of appeal on behalf of the trust are fully set out in exhibits 1-6.  I have considered each ground of appeal fully.  I have also considered all of Mr Theo’s supporting evidence.  I have also considered the valuation reports of Mr Mariner and Mr Haydon and all of their evidence.

3. If real terms, I find nothing in the material advanced by Mr Theo that has not already been dealt with, from a valuation and the relevant legal principles perspective, in the matters involving Mr Theo already referred to in paragraph 1.  The only difference of course is that the respondent’s valuers have relied upon valuation date appropriate sales to support the valuations made.  I accept all of the valuation evidence presented by Mr Mariner and Mr Haydon to the Court, specifically including those instances where they corrected themselves, just as a professional, expert witness should.

4. In his closing submissions, Mr Isdale had this to say[4]:

   [4]        See transcript pages 151, line 23 to page 153, line 15.

   “You've heard that the appellant was interested in percentage increases of the value over the previous valuation, the vegetation management legislation and submissions that were made in these appeals those were dealt with in the Land Appeal Court in the decision of Solon Theo Family Trust v. Chief Executive, Department of Natural Resources and Water, LAC2007/821, the decision which was given on 19^th December last year.  In paragraph 11 and following the Land Appeal Court also dealt with the case of Waterhouse v. Valuer-General that the appellant has again referred to. The appellant in his Exhibit 7 referred to ss.133 and 134 of the Property Agents and Motor Dealers Act.  Those sections are not relevant at all.

   You will remember that in his evidence Mr Mariner explained the relevance of the Vegetation Management Act to the appeals and Mr Haydon has done that again today.  In the decision of the Land Appeal Court in paragraph 14 and following, that's the decision last December, there is a discussion of the relevance of increases compared to earlier valuations or to a general increase in valuations and in paragraph 16 the Land Appeal Court referred to the Vegetation Management Act and as there, it has occurred again here, the appellant has failed to show that the respondent didn't properly take these things into account.  You will remember that in his cross-examination this afternoon Mr Haydon said that the Vegetation Management Act would have no effect on this property.  When he was cross-examined the witness for the appellant was precious about me pointing to him, including when I was gesturing towards the ceiling, he was evasive and at times he flatly refused to answer questions when he was offered plenty of opportunity to do so.  He made a gratuitous attack on the officers of the department and on my character as well.  Once he chose to put character in issue as the advocate for the appellant his own character didn't present at all well and you will recollect in Exhibit 9 the findings of Justice Cooper that the appellant's advocate had executed transfers with intent to defraud creditors.  In my submission where his evidence differs from that of Mr Mariner and Mr Haydon you should accept their evidence in relation to that matter instead of his as he doesn't have any credibility.  Mr Theo was evasive about how the appellant's figures for valuations were arrived at.  Despite being given ample opportunity to explain them he asked the court to believe that he cannot remember who was involved in making decisions about the appellant's value figures in the Notices of Appeal.  When these decisions were made according to the Notices of Appeal they coalesced into Notices of Appeal in June and July last year and as recently as October last year.  He doesn't claim any illness that might explain his loss of memory and I submit that his version is simply not believable.  He claimed not to have read the Land Appeal Court's decision of 19^th December last year, an appeal by the same appellant.  He appeared in those matters and he later qualified this by saying he's read it selectively.  Now that decision is relevant to these appeals also.  Mr Theo doesn't feel restricted by it and he's reapplying the points that failed as recently as last December for reasons that the Land Appeal Court explained.  Early in his evidence he claimed the status of an accountant, a claim that didn't stand scrutiny.  It was just another example of his credibility being insufficient.

The key difference between the parties is that the appellant could produce no evidence at all to support the valuation figures that he claimed.  He was evasive as to how the figures were arrived at and who was involved in arriving at the figures.  He was offered a fair opportunity and was bereft of evidence.  The professional valuers for the respondent produced detailed reports disclosing how their valuations were arrived at.  Their reports were subjected to vigorous but ineffective scrutiny which gained nothing from the volume of the delivery.  The respondent's valuers critically used direct comparison of sales that are set out in their reports, the best possible basis.  There is contrived criticism that is being attempted to be made by the appellant of the witness statements not being signed till the witness was in the witness box or whether someone's continuing professional education status was or wasn't stated in the report.  That is a very, very clear example of what has previously been seen by the courts as an inadequate and inappropriate attack on a valuation.  It's a textual criticism of the valuation report and the authority for that is A Hudson Pty Ltd v. Legal & General Life of Australia Ltd [1986] 61 Australian Law Journal Reports 280 where Lord Goff of Chieveley said at p.281, "In general Their Lordships consider that it would be a disservice to the law and to litigants to encourage forensic attacks on valuations by experts where those attacks are based on textual criticism more appropriate to the measured analysis of fiscal legislation."  That was followed by this court by Dr Divett in his decision in the Australian Postal Corporation v. Department of Natural Resources and Mines [2003] QLC 0011 at paragraphs 60 and following.

That's been the appellant's case, an attempt to criticise the respondent's case while not having a case based on evidence, in fact no sales evidence at all.  You will recollect that in Exhibit 13 Mr Mariner didn't refer to a house on the subject block and he explained that and gave his evidence that it made no difference as the land is valued as unimproved.  That was another example in my submission of a textual attack on a valuation, raising a point that doesn't go to the substance of the valuation itself.  The duty that the appellant has is to show some relevant serious error on the part of the Chief Executive or to have a case of his own.  In my submission he's failed on both and this court applying the authorities which are summarised in Hans and Else Grahn v. City of Redcliffe, 14 QLCR 327 where the principles are set out, the court wouldn't be satisfied, and not be able to be satisfied, that the appellant has discharged the onus of proof that's on him and in any case the valuation evidence from the professional valuers called by the respondent in my submission remains unassailed in relation to any effective and relevant matter. In my submission the court on the evidence ought to dismiss the appeals and those are my submissions sir.”

1. I cannot find any aspect in which I disagree with Mr Isdale’s submissions.  The transcript speaks for itself.  Mr Theo was, in my view, deliberately evasive in answering questions.  On each occasion where Mr Theo claimed a loss of memory, it is my view that he was being deliberately untruthful. Mr Theo sought to put the credibility of the respondent’s valuers, and indeed Mr Isdale, into question.  What resulted was the respondent leading evidence which clearly destroyed Mr Theo’s credit.  A forensic evaluation of the transcript and evidence will do nothing more that reinforce this and take up unnecessary time for any reader of this decision.

2. It is appropriate, in my view, that I should make comment on the conduct of the respondent.  In the many appeals that I have dealt with over the years, the respondent has, in the vast majority of cases, conducted itself as the model litigant.  This has, at times, included cases involving difficult appellants well known to the valuation appeal process.  The appellant chose to put character in issue.  In response, the respondent has effectively ‘taken the gloves off’[5].  In doing so, rather than being critical, I commend the respondent for continuing to uphold the principle of the model litigant.  In my view, Mr Theo cannot complain.  He chose to cast the first stone, and he has been found out.

   [5]         See The Oxford Dictionary of Phrase and Fable, Oxford University Press, 2000, page 419.

3. I have not the slightest hesitation in ordering that each of the appeals be dismissed.

4. I grant the respondent until 4pm 14 May 2010 to consider its position with respect to costs and to file and serve any formal application supported by submissions.  Should the respondent seek costs against the appellant[6], I grant the appellant until 4pm 11 June 2010 to file and serve submissions in response, and the respondent until 4pm 25 June 2010 to file and serve any submissions in reply.

   [6]        Including against Mr Theo personally.

Orders

1.   The appeals are dismissed.

2.   The respondent granted until 4pm 14 May 2010 to consider its position with respect to costs and to file and serve any formal application supported by submissions.  Should the respondent seek costs against the appellant, including against Mr Theo personally, I grant the appellant until 4pm 11 June 2010 to file and serve submissions in response, and the respondent until 4pm 25 June 2010 to file and serve any submissions in reply.

PA SMITH

MEMBER OF THE LAND COURT