Tenstat Chullora No. 2 Trust v Valuer General - [2000] NSWLEC 212

Reported Decision: 110 LGERA 227

Land and Environment Court

of New South Wales

CITATION: Tenstat Chullora No. 2 Trust v Valuer General and Anor. [2000] NSWLEC 212

PARTIES:
APPLICANT:
Tenstat Chullora No. 2 Trust
RESPONDENTS:
Valuer General & Anor.

FILE NUMBER(S): 30208 of 1999

CORAM: Bignold J

KEY ISSUES: Costs :- Costs in class 3 proceedings—Valuation appeal. Court’s Practice Direction that costs be not ordered save in exceptional cases

LEGISLATION CITED: Valuation of Land Act 1916, s 33, s 34, s,35 s 38
Land and Environment Court Act 1979, s 69

CASES CITED: Berk v Woollahra Municipal Council (1992) 78LGERA 180;
Dobrel Pty Ltd v Valuer General No (2) (1993) 80 LGERA 26;
MacDonald v Mosman Municipal Council (No 2) (2000) 107LGERA 211 13;
Murray Publishers Pty Ltd v Valuer General (1994) 84LGERA

DATES OF HEARING: 4 October 2000

DATE OF JUDGMENT:
10/09/2000

LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Galasso
SOLICITORS
Aleco Vrisakis
RESPONDENT:
Mr P McEwen SC
SOLICITORS
Bruce and Stewart

JUDGMENT:

IN THE LAND AND Matter No . 30208 of 1999

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 9 October 2000

TENSTAT CHULLORA NO. 2 TRUST

Applicant

THE VALUER GENERAL

First Respondent

MCWILLIAM'S WINES PTY LIMITED

Second Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its Notice of Motion filed 13 September 2000, the Second Respondent seeks an order that the Applicant pay its costs of the proceedings in which it was the successful party.

2. The proceedings which involved an appeal by the Applicant pursuant to the Valuation of Land Act 1916 s 38 were heard and disposed of by Commissioner Nott who, in his reserved judgment delivered on 25 August 2000, dismissed the Applicant’s objection under the Valuation of Land Act that the statutory valuation was too low, but upheld the Second Respondent’s objection that the statutory valuation was too high with the result that the Commissioner determined the land value of the relevant property in the sum of $5 million as had been contended for by the Second Respondent and accordingly altered the statutory valuation that had been made by the Valuer General in the sum of $5.25 million by reducing it to $5 million.

3. In seeking an order for costs, the Second Respondent acknowledges the existence since 1996 of the Court’s practice not to award costs in valuation appeals “unless the circumstances are exceptional”: vide par 10A of the Court’s current Practice Direction, and seeks to bring its claim within the ambit of “exceptional circumstances”.

4. The Applicant resists the costs claim by contending that no exceptional circumstances have been established.

5. The First Respondent has not participated in the hearing of the Motion.

B. THE BASES FOR THE SECOND RESPONDENT’S CLAIM FOR COSTS

6. The Second Respondent relies upon the following factors as demonstrating “exceptional circumstances” within the Court’s Practice Direction—
(i.) It was unusual for the Applicant, as the relevant land owner, to appeal a statutory valuation for rating and taxing purposes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWLEC 212
Decision Date: 10/09/2000

CaseChat Overview and Summary

In the case of Tenstat Chullora No. 2 Trust v Valuer General, the applicant, Tenstat Chullora No. 2 Trust, challenged a statutory valuation made by the Valuer General under the Valuation of Land Act 1916. The second respondent, McWilliam's Wines Pty Limited, joined the proceedings as a party and contested the valuation, arguing that it was too high. The Land and Environment Court of New South Wales was tasked with determining whether the second respondent was entitled to costs for the proceedings.

The primary legal issue before the court was whether the second respondent had demonstrated "exceptional circumstances" that would warrant an order for costs against the applicant, despite the court's established practice of not awarding costs in valuation appeals unless such circumstances were present. The second respondent argued that the applicant's appeal was unusual, commercially motivated, and ultimately unsuccessful, which should justify an award of costs. The applicant, on the other hand, contended that its actions were within its statutory rights and did not constitute exceptional circumstances.

Bignold J, in delivering the judgment, found that the second respondent had not established any exceptional circumstances that would support an award of costs against the applicant. The court highlighted that the applicant had exercised its statutory rights to object to and appeal the valuation, which was in line with the court's practice direction. Moreover, the court found that the second respondent's participation in the proceedings was improper, as it had not objected to the valuation under the Act but was joined as a party through a motion. This mischaracterisation of the second respondent's role invalidated the commissioner's decision to alter the valuation. Consequently, the second respondent's claim for costs was dismissed.

The court ordered that the second respondent pay the applicant's costs of the motion, as the applicant was entitled to its costs for resisting the costs motion. The court emphasised that the costs of the motion were separate from the valuation appeal and were governed by the established principle that costs follow the event.

Orders