Suncare v Department of Natural Resources, Mines and Water
[2006] QLC 43
•31 July 2006
LAND COURT OF QUEENSLAND
CITATION: Suncare & Anor v Department of Natural Resources, Mines and Water [2006] QLC 43 PARTIES: Suncare (Brassall) Pty Ltd
(appellant)v. Chief Executive, Department of Natural Resources, Mines and Water
(respondent)Body Corporate for Suncare Lakes Community Titles CMS 33822
(appellant)v. Chief Executive, Department of Natural Resources, Mines and Water
(respondent)FILE NOS.:
DIVISION:
AV2005/1237; AV2005/1300
Land Court of Queensland
PROCEEDINGS: Jurisdiction – Appeals against Unimproved Valuations DELIVERED ON: 31 July 2006 DELIVERED AT: Brisbane HEARD AT: Ipswich MEMBER: Mr PA Smith ORDERS: In AV2005/1300: The Notice of Appeal filed 5 October 2005 be struck out.
In AV2005/1237: The Notice of Appeal filed 30 September 2005 be dismissed for lack of jurisdiction.
CATCHWORDS: Jurisdiction – No standing – Initial procedural step of first objecting – Ownership and entitlement to appeal – Factual issues in dispute – Appeal rights – Procedural issue – Community Titles Scheme – Valuation on the undivided whole – Not the relevant owner – Reasonable excuse – Appellant lodged a notice of appeal with the respondent within the appeal period but did not file the notice of appeal in the land court until after the appeal period expired – Clear intent to institute an appeal - Valuation of Land Act 1944 Uniform Civil Procedure Rules
Department of Natural Resources and Mines v. NE Christie (NSW) Pty Limited [2004] QLAC 0091, applied
Moran v. Chief Executive, Department of Natural Resources and Mines 31 May 2001, not followed
Lebeter & Anor v. Department of Natural Resources and Mines [2002] QLC 92, applied
Stevens v. Motor Vehicle Insurance Trust (1978) WAR 232 @ 235, referred to
Aldi Foods Pty Ltd v Department of Natural Resources and Mines -2005- QLC 0062, referred to
Eden v. Department of Natural Resources and Mines, 12 October 2001, referred to
Douglas v Department of Natural Resources and Mines [2006] QLC 0028, referred to
Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000, referred to
Romano v. Department of Natural Resources and Mines [2005] QLC 0042, referred to
Kallinicos & Ors v. Department of Natural Resources and Mines [2005] QLC 0030, referred to
Grace v. Department of Natural Resources and Mines [2005] QLC 0045, referred toAPPEARANCES: Mr Patterson and Ms A Murtha (Macrossans Lawyers) for the appellants
Mr Rabaa, Senior Lawyer, Crown Law, for the respondent
Proceedings
These matters come before the Court in unusual circumstances. The appellants in each matter are different legal entities, although clearly both associated with the subject land, which is the same in both cases. Firstly, in the matter of AV 2005/1237, the Appellant is Suncare (Brassall) Pty Ltd (“Brassall”). The appellant in AV 2005/1300 is Body Corporate for Suncare Lakes Community Titles CMS 33822 (“Lakes”).
The Lakes matter was listed for a Court Supervised Preliminary Conference in Ipswich at 10am on 6 December 2005. At the commencement of the Preliminary Conference, Counsel for the Respondent made an oral application that the matter should be struck out. The appellant was not legally represented.
The Brassall matter was listed for Jurisdiction Hearing in Ipswich at 11.30am on 6 December 2005. The respondent was legally represented, while the appellant was not legally represented. As is evident from the transcript from 6 December 2005 in both the Brassall and Lakes matters, the representative of appellant in each matter became quite confused.
The appellants in both matters were represented by Mr Patterson, who I understand to be a Director of both appellants. Both matters were adjourned, and the appellants in each matter subsequently obtained legal representation. After further delays, I have received from each party documentary evidence and submissions with respect to both matters, which for convenience are being dealt with together.
Background
The appellant in Brassall has appealed against a valuation pursuant to the Valuation of Land Act 1944 (VLA) which determined the value of certain land situated at Workshops Street, Brassall,[1] in the sum of $3,400,000 as at 1 October 2004. The appellant’s estimate of the value of the land is $1,000,000. The subject land is described in the Notice of Appeal as Lot 13 on Plan No SP124705, Parish of Brassall, with an area of 4.5163 ha.
[1] Property ID: 40142910
The appellant in Lakes has appealed against a valuation pursuant to the VLA which determined the value of what is in effect the same land situated at Workshops Street, Brassall,[2] in the sum of $3,400,000 as at 1 October 2004. The appellant’s estimate of the value of the land in this case however is $100,000. The land is described in the Notice of Appeal as Lots 1-4 and 9-12 and 200 on Plan No SP174099, Parish of Brassall, with an area of 4.5163 ha.
[2] Property ID: 40641640
There is no doubt from the material that the two matters are intertwined. Unfortunately, to some extent, the nature of the difficulties each matter presents has not been made easier by the submissions and material presented by the respective parties. For instance, there is not even common ground on the issue of ownership of the land. I will deal with this issue in more detail later in this decision.
Chronology
Taking into account all the material before me, including Mr Patterson’s evidence in the Brassall jurisdiction hearing, exhibits in both cases, and material supplied with submissions, I find the events relevant to both matters as follows:
(a) 29 March 2005. Annual Valuation Notice provided to Brassall for Lot 13 on SP124705.
(b) 1 April 2005. SP174099, in the name of Brassall, creating Lots 1-4, 9-12, 200 and Common Property from Lot 13 on SP124705, lodged in the Land Registry.
(c) 4 April 2005. SP174099 registered.
(d) 4 April 2005. Brassall shown as Registered Owner of Lot 1 on SP174099 and Lot 200 on SP181377.
(e) 4 April 2005. Lakes shown as Registered Owner of Common Property of Suncare Lakes Community Titles Scheme 33822, Community Management Statement 33822.
(f) 22 April 2005. Brassall lodges its Objection.
(g) 19 July 2005. Respondent makes and provides decision on Objection, Property ID 40142910, Lot 13 on SP124705, to Brassall.
(h) 17 August 2005. Brassall, by its Director Mr Patterson, delivers a notice of Appeal, dated 11 August, 2005, to the respondent relating to lot 13 on SP124705.
(i) 30 August 2005. Appeal period expires.
(j) 13 September 2005. Notice of Valuation (other than annual) issued to Lakes for Lots 1-4, 9-12, and 200 on SP174099.
(k) 30 September 2005. Brassall faxes its Notice of Appeal relating to Lot 13 on SP124705 dated 11 August 2005 to the Land Court.
(l) 3 October 2005. Department of Natural Resources IVASE Property Details Report shows Lakes as the owner of Lots 1-4, and 9-12 on SP174099 and Lots 5-8 and 200 on SP181357.
(m) 5 October 2005. Lakes lodges a Notice of Appeal regarding Lots 1-4, 9-12, and 200 on SP174099 in the Land Court.
Submissions - Lakes
The respondent submits that, as Lakes has not lodged a Notice of Objection (VLA s.42) its appeal has no standing and must fail. Lakes concedes that its appeal of 5 October 2005 must fail because it did not take the initial procedural step of first objecting to the valuation, but says further that pursuant to s.42(2) of the VLA, “is to deem the appeal by Suncare Brassall to be an appeal of the valuations issued to both Suncare Brassall and Suncare Lakes”. Other submissions are made by both parties relating, amongst other matters, to the operation of s.26A of the VLA and the appropriate appellant for the notice of Appeal filed in the Land Court on 30 September 2005.
Conclusion - Lakes
For the purposes of dealing with the Lakes appeal of 5 October, 2005, it is unnecessary to consider issues relating to s.26A (VLA) or the appropriate appellant in the Brassall matter. The operation of ss.42 and 45 of the VLA is clear. The appeal of 5 October 2005 is not supported by an objection. It follows that the Notice of Appeal filed 5 October 2005 must be struck out. To the extent that it is necessary, issues relating to s.26A (VLA) or the appropriate appellant in the Brassall matter are dealt with later in this decision with respect to the Brassall matter only.
Order - Lakes
Having considered all relevant aspects of the Lakes matter, I order that the Notice of Appeal filed 5 October 2005 be struck out.
Submissions – Brassall – ownership and entitlement to appeal
There a number of submissions from each party with respect to Brassall. Some go to the heart of factual issues in dispute. By way of observation, I find it rather unusual that issues such as chain of ownership can be in dispute in a matter such as this, particularly where both parties have had ample time to provide material and submissions to the Court.
In particular, the respondent submits that the Land Court has no jurisdiction to deal with the Brassall appeal. There are a number of stated reasons for this submission. The respondent submits that the subject land ceased to be in the ownership of Brassall on 1 April 2005 and says that “the position of the Land Court is that it cannot deal with an appeal where the Appellant is not the registered proprietor of the land at the time this matter is before the Court. Put strongly, the Court is therefore without jurisdiction to deal with this matter”[3]. The appellant submits that Brassall has remained “a registered owner of the subject land”[4] and retains appeal rights, which it has exercised. The appellant further submits that “even if the original applicant no longer owned any lots on the subject land, the appeal would not fail, due to the operation of section 46 of the Act. It is submitted that it would merely be a procedural matter of changing the name of the applicant in the proceedings from Suncare (Brassall) Pty Ltd to the appropriate current owner of the subject land”.[5] The appellant goes on in those submissions to submit, even if it is determined that an alternate owner is the appropriate applicant, the name of the applicant is a procedural issue which can be rectified.
[3] Respondent’s submissions dated 23 May 2006
[4] Appellant’s submissions dated 24 May 2006.
[5] Appellant’s submissions dated 13 February 2006
Conclusion – Brassall – ownership and entitlement to appeal
In making their submissions on this point, although both parties have referred to relevant parts of the VLA, no relevant precedents have been cited. In 2004, the Land Appeal Court considered similar issues in the case of Department of Natural Resources and Mines v. NE Christie (NSW) Pty Limited[6]. In that case, land as at the date of the issue of the valuation notice was owned by Christie. Before an objection was lodged, the land was transferred to Trust Company. Subsequently, Christie lodged an objection, followed by an appeal. The Land Appeal Court said, at paragraph 12, that:
“It was therefore upon the new owner, Trust Company, that the entitlement to object against the valuation was conferred by s 46(1), although the valuation notice had been issued to the former owner. Likewise, since no objection or appeal was lodged by Christie prior to the change of ownership, there could be no question of the new owner having an entitlement, pursuant to s 46(2), to carry on an objection or appeal in the name of the former owner. Thus, the objection and the appeal were required to be made in the name of Trust Company as the relevant owner.”
[6] [2004] QLAC 0091.
The Land Appeal Court further determined in Christie that rules 69(2) and 376 of the Uniform Civil Procedure Rules could not be used to cure the lack of underlying jurisdiction arising from the failure of the relevant owner to lodge an objection.[7]
[7] @ paragraph 15
Applying Christie, it follows that if the land ceased to be in the ownership of Brassall at the time that the objection was made, Brassall’s appeal would lack underlying jurisdiction and must fail.
Unfortunately, the facts of this matter are not as simple as those in Christie. There is a sparsity of evidence as to what actually transpired regarding ownership of the subject land on 1 April 2005. It would seem that a Community Titles Scheme came into existence for the land, with various individuals becoming the registered owners of various lots within the scheme, Brassall remaining a registered owner of some lots, and Lakes the owner of the Common Property.
The respondent in submissions originally referred rather extensively to s 26A of the VLA, but then in later submissions argued that s 26A does not apply in the circumstances of this matter. Brassall of course contends that, as it remained the owner of some of the land, its objection and appeal rights remained.
In my view, applying Christie, s 26A is clearly relevant in this matter. Section 26A (1) and (2) of the VLA provides as follows:
“(1) The chief executive is not required to value lots included in a community titles scheme separately but may value the scheme land for the scheme as an undivided whole and as if it were owned by a single owner. (2) For the valuation, and objection and appeal against the valuation, the body corporate for the community titles scheme is taken to be the owner of scheme land and must be shown in the valuation as the owner.”
In effect, what occurred on 1 April 2005 was that Lakes became the owner of the subject land as it is the body corporate for the community titles scheme. Although Brassall retained ownership of some of the lots making up the subject land, it was no longer the owner of all of the land, or even a part owner of all of the land. Brassall’s position can best be understood by comparing it to another owner of a lot in the subject land.
The material shows that on 4 April 2005, Rodney Wayne Foster and Jeanette Elaine Foster were registered as the owners of Lot 2 on SP174009, Community Management Statement 33822. Lot 2 is part of the land subject to the Brassall appeal. After 4 April 2005, could the Foster’s have objected to and subsequently appealed the valuation of the subject land given their ownership of Lot 2? In my view, the answer must be no. No single valuation had issued at that time for Lot 2 to which the Fosters could object. If it had chosen to, Lakes as the body corporate, applying Christie, could have taken on the rights of the previous owner of all of the land (Brassall) and objected at that time to protect the interests of all those in the community management scheme, including the Foster’s, but it did not do so.
Clearly, s 26A(1) gives the respondent the discretion to issue valuations in a community titles scheme either separately or as an undivided whole. On 13 September 2005, the respondent issued a valuation on the undivided whole. Lakes, as the body corporate, could have subsequently objected to that valuation, but not the Foster’s in their own right. Of course, had the respondent issued separate valuations on 13 September, 2005, the Foster’s could have objected to the valuation for lot 2.
As the owner of only some lots within a community management scheme, the position of Brassall in April 2005 must be the same as that of the Fosters. It follows that as at 22 April 2005 Brassall was not the relevant owner of the land subject to the valuation notice of 29 March 2005 and accordingly had no right to lodge an objection under s 42 of the VLA. The appeal must be dismissed for lack of jurisdiction.
Submissions – Brassall – Reasonable Excuse
In addition to the question of ownership and right to appeal, a further issue before me for resolution was whether or not Brassall had established a reasonable excuse for its failure to file the notice of appeal in the Land Court before the appeal period ended. Although my views on the right to appeal issue are sufficient to dispose of the matter, for completeness it is appropriate that I consider the reasonable excuse aspect as well. Section 57 of the VLA allows for "reasonable excuse" as a cause for such delay in filing a notice of appeal:
"57.(1) If a notice of appeal is filed in the Land Court registry after the time stated in s.55(2), the registrar of the court must notify the owner that the appeal may not be heard unless the owner satisfies the court that the owner has a reasonable excuse for filing the notice after the time stated.
Example of 'reasonable excuse' -
The notice of the chief executive's decision or the notice of appeal was lost or delayed in the ordinary course of post."
The question then is whether the explanation for the late lodgement advanced by Brassall falls within the term "reasonable excuse" as interpreted by the cases, particularly those since the introduction of s.57 as amended in 2000.
Mr Patterson for Brassall gave evidence[8] that on 17 August 2005, he went to the respondent’s office in Ipswich and asked counter staff where he was to lodge the appeal and was directed to the other end of the counter where another officer took the notice of appeal and returned a stamped copy[9] to him. After hearing nothing further about the matter for some time, Mr Patterson contacted the Land Court and was advised that his notice of appeal had not been received, resulting in his faxing the notice of appeal to the land Court on 30 September 2005, one month after the appeal period had expired.
[8] See transcript, Brassall, 6 December 2005 page 4
[9] Exhibit 1 in Brassall.
Brassall submits that the facts in this matter are virtually identical to those in the Land Court decision of Moran v. Chief Executive, Department of Natural Resources and Mines 31 May 2001. In Moran, a reasonable excuse was established.
The respondent referred to Anthony v. Chief Executive, Department of Natural Resources, 10 November 2000, Romano v. Department of Natural Resources and Mines [2005] QLC 0042, Kallinicos & Ors v. Department of Natural Resources and Mines [2005] QLC 0030, and Grace v. Department of Natural Resources and Mines [2005] QLC 0045 in support of the contention that a reasonable excuse had not been made out. As regards Moran, the respondent urges the Court not to follow that decision on the basis that it misconstrues s 56 of the VLA. Brassall contends that each of the respondents authorities are distinguishable.
Conclusion – Brassall – Reasonable Excuse
The authorities on the term "reasonable excuse" or similar expressions are usefully collected in Anthony. In essence, the authorities establish that the excuse must be "substantial" and "what 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".[10]
[10] Per Burt CJ in Stevens v Motor Vehicle Insurance Trust (1978) WAR 232 @ 235.
The question then is, do the circumstances surrounding Brassall instituting its appeal and ultimately appealing out of time, amount to a "reasonable excuse" pursuant to s.57 of the VLA?
I agree with the submissions by Brassall that the facts in the cases referred to by the respondent are distinguishable to those at hand, and that the case of Moran is very similar to the present case. However, that is not the end of the matter. There are other Land Court authorities which need to be taken into account.
The first case to consider is that of Lebeter & Anor v. Department of Natural Resources and Mines [2002] QLC 92. In that case, like Brassall, the appellant lodged a notice of appeal with the respondent within the appeal period, but because of a misunderstanding of the role of the respondent, did not file the notice of appeal in the Land Court until 9 days after the appeal period expired. In finding that a reasonable excuse had not been made out, Member Divett had this to say[11]:
“In the circumstances of the current matter the appellants would appear to have seriously jeopardised their appeal, through the simple mistake of not fully reading the directions for lodging the Form 59. The separation of powers defining the separate roles of the judicial system from that of the role of Government, is a fundamental pillar of our free democratic system. Any confusion that those separate roles may be entwined, is unfortunately not grounds for usurping the directions of the Parliament as espoused in the Acts of Parliament. That legislation not only defines the legal rights of appellants, but also protects the rights of respondents. Where the legislation directs that the “Notice of Appeal” shall be lodged within 42 days, that is not discretionary, unless “reasonable grounds” can be demonstrated.”
[11] @ paragraph 17
I note that the decision on objection provided to Brassall on 19 July 2005 states in part as follows:
"The Valuation of Land Act 1944 provides that unless you appeal to the Land Court within 42 days after the Date of Issue of this notice, such valuation amount shall be deemed to be determined.
An Appeal Form may be obtained electronically from the Department's Web site at The Appeal Form may also be obtained from your local NR&M office by phone as listed below."
I also note the contents of the respondents website; and the details provided on the Form 59.
Another case to consider is that of Aldi Foods Pty Ltd v. Department of Natural Resources and Mines [2005] QLC 0062. In that case, like Brassall, the appellant lodged a notice of appeal with the respondent within the appeal period but did not file the notice of appeal in the Land Court until after the appeal period expired. Aldi does differ from the present case in that it was aware of the correct procedure to follow, it believed that it had provided its notice of appeal to the Land Court within time, and could not explain why the appeal was not received. Thus, like the case at hand, Aldi was able to establish a clear intent to institute an appeal within time but the Court, relying on Lebeter and Eden v. Department of Natural Resources and Mines, 12 October 2001, found that a reasonable excuse had not been established. In many respects, the reasoning and decision in Aldi is quite similar to that in Grace.
Recently, Judicial Registrar O’Connor also considered circumstances where a notice of appeal was only filed with the respondent. In that case, Douglas v Department of Natural Resources and Mines [2006] QLC 0028 he found that a reasonable excuse had not been established.
Having considered the tests outlined in the authorities and the facts in those cases, I am not persuaded that Brassall has established a reasonable excuse for the late filing in the Land Court of its notice to appeal. I prefer the reasoning in Lebeter and subsequent Land Court decisions which have applied Lebeter to that in Moran. Accordingly, because of the failure of Brassall to file the notice of appeal within the stipulated time, the court has no jurisdiction to hear the appeal.
In light of my decisions with respect to ‘ownership and entitlement to appeal’ and ‘reasonable excuse’, it is not necessary for me to consider other submissions made by the parties.
Order - Brassall
Having considered all relevant aspects of the Brassall matter, I order that the Notice of Appeal filed 30 September 2005 be dismissed for lack of jurisdiction.
P A SMITH
MEMBER OF THE LAND COURT
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