The Proprietors v Chief Executive, Department of Natural Resources
[1997] QLC 131
•5 September 1997
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BRISBANE
5 September 1997
Re: Appeal against Annual Valuation -
Valuation of Land Act 1944 -
Valuation Roll No: 11226
Local Government: GCCC-Albert
(AV97-107).
The Proprietors "The Lodge Beenleigh"
v.
Chief Executive, Department of Natural Resources
(Hearing at Coolangatta)
D E C I S I O N O N C O S T S
Background:
This matter relates to a property at Jacobs Well Road, Stapylton, and described as Lots 1 to 19 on GTP 1793, Lots 21 to 35 and 37 on GTP 1881, Lots 38 to 50 on GTP 1937, Lots 52 to 63 on GTP 2021, Lots 65 to 84 on GTP 2022, Lots 86 to 165 on GTP 2132, and Permit to Occupy 06/6130 over Lot 1 on Plan PO/6130, Parish of Albert. The property is developed with 160 Group Title sites improved with relocatable homes. The land is located about 4 kms south-east of the Beenleigh Post Office, and is zoned as "Special Facilities (Relocatable Home Park)" under the Town Planning Scheme of the Albert Shire Council of 24 February 1995, and effective at the date of valuation of 1 October 1996.
The Chief Executive, Department of Natural Resources, issued a valuation at $1,100,000 on 10 March 1997. The appellants objected to that valuation claiming the value should be properly $400,000. The Chief Executive confirmed the valuation at $1,100,000 on 26 May 1997, following which the appellants appealed to the Court claiming the valuation should more properly be $610,000, down from the previous valuation of $810,000. The grounds of appeal included the percentage increase in the valuation, the valuation is out of line with the property market, the impact of surrounding land zoned for industrial purposes, and the impact of traffic. Mr B O'Connor, Counsel, appeared for the respondent, and had evidence prepared by Mr AJ Dalgarno, a registered valuer employed by the Department. There was no appearance by the proprietors of the Lodge.
The Facts:
The notice of the hearing was forwarded to the parties on 2 July 1997, noting the time of the hearing to be heard at the Court House, corner MacLean and Musgrave Streets, Coolangatta, at 2p.m. Wednesday, 27 August 1997. There being no appearance by the appellant at the due time, inquiries by telephone were made on two occasions to contact the representative of the proprietors of "The Lodge Beenleigh", Mr Corrae, in order to inquire whether there had been some delay in arriving at the hearing.
On the second occasion Mrs Corrae informed the Court Registrar that the proprietors had sought legal advice, and determined that the costs of pursuing the matter were more than the parties were prepared to pay. They had therefore decided not to pursue the matter and did not realise that they should have sought to inform either the Court or the respondent.
In the end, neither the Court nor the respondent had any prior notice of the decision of the appellants not to appear, and both the Court and the respondent were prepared to proceed.
The Court was convened at 2.40p.m. on Wednesday, 1997, and the information supplied by telephone to the Registrar was conveyed to the respondent. As the matter was therefore struck out by the failure to appear by the appellant, the valuation of the Chief Executive is confirmed at $1,100,000.
Subsequent to this decision, the respondent sought costs as a consequence of the late decision by the appellant to withdraw, and the lack of notice to the respondent. Mr O'Connor advised that the respondent's costs of unnecessarily preparing his case and appearing at the Court totalled $500. This represented the wage costs of Mr O'Connor and Mr Dalgarno each for one day plus costs of travelling.
In considering the matter of costs, I am aware that precedent has often been established in this jurisdiction for each party to bear their own costs under normal circumstances. In this regard I note for instance in WH Bowden v. The Valuer-General (1980-81) 7 QLCR 138, where the Land Appeal Court found at page 147:
"Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed, most desirable in revenue cases, and such access should be available without fear of costs being awarded to either party except in special cases. "
That principle was also followed in Seganfreddo Nominees Pty Ltd, JA Brazier and others, and P and A Morellini v. The Valuer-General (1980-81) 7 QLCR 10, where the learned Member found at page 14:
"I am unaware of any occasion in recent times where the Land Court or Land Appeal Court has made an order for costs in favour of a successful appellant. It is my view that a landowner who feels aggrieved at a valuation of the Valuer-General is best served if he can approach the Court with reasonable expectations that, if his appeal fails, he will not be burdened with an order for costs against him. "
In that case the Court followed the principles espoused in Scott Properties Pty Ltd v. Valuer-General (1977) 4 QLCR 18, at p.185:
"Mr Scott asked for costs of $157, made up of out-of-pocket expenses and the value of his time, should the decision be favourable to him, but Mr Trickett opposed the application as being not the Court's normal practice, and he referred to the deterrent effect on many intending appellants if the practice of awarding costs to the successful party (often the Valuer-General), subject to the limitations imposed by section 22, is adopted. I believe costs should not be awarded either way in other than exceptional circumstances, and such circumstances, in my opinion, do not exist here."
In seeking guidance in this matter I look to the Valuation of Land Act, 1944, and note that costs are covered in respect of an adjournment (Section 62) and also in respect of the final determination of an appeal (Section 70):
"Costs of appeal against valuation
70.(1)Where the value of land as finally determined upon an appeal against the valuation is the value stated by the owner in the owner's notice of appeal against the valuation, or is nearer to that value than to the valuation appealed against, costs shall not be awarded against the owner.
(2)Otherwise costs shall not be awarded against the chief executive."
In considering whether costs should be awarded, I note that the Act specifies when costs shall not be awarded, but makes no direction as to when costs shall be awarded. That discretion is left entirely to the Court, and was noted in WH Bowden v. The Valuer-General (1980-81) 7 QLCR 138, at page 144 to 149, where the Land Appeal Court found at page 145:
"It is true, as submitted by the appellants' counsel, that the legislature has not prohibited the courts from awarded costs but we do not agree that if the legislature intended that no costs should be awarded it would necessarily have so stipulated. It appears to us that the legislature intended to leave all questions of costs in the Court's unfettered discretion subject to the prohibition against granting costs to the party whose valuation is nearer the valuation determined. "
The Land Appeal Court went on to further clarify the matter at page 145:
"The power of the Land Court and the Land Appeal Court to grant costs originates respectively in sections 41(9) and 44(16) of the Land Act. The power so granted is discretionary and is in no way circumscribed. "
In understanding the matter of discretion, I note also the finding of the Land Appeal Court in Townsville City Council v. Moyses and Morris etc (1979) 6 QLCR 271, which said at page 273:
"The general rule, then, is that costs are in the discretion of the Court, but of course the discretion must be exercised judicially, that is, by reference to relevant considerations. "
The Land Appeal Court also considered the matter of whether the Court should lay down rules or principles on how the Court's discretion should be exercised, and followed the guidance outlined in Middleton v. Freier and Others (1958) Qd.R. 351, where Phillip J., speaking for the Full Court, said at page 357:
"Where an unfettered discretion is given by statute or a rule no court can by its decision impose conditions upon the free exercise of that discretion by another court....".
In respect of costs, matters which the Court needs to consider include whether the appeal has been undertaken in an arbitrary, frivolous, or vexatious manner (Hymix Industries Pty Ltd v. The Valuer-General (V89-415)(LAC)(1990-1991) 13 QLCR 173, at p. 186), or in a manner which could be considered as arbitrary or capricious (WH Bowden v. The Valuer-General supra) which said at page 149:
"We are satisfied that the Valuer-General did not arbitrarily or capriciously adopt the interpretation of section 11(1)(vii) upon which he based his valuation. There seems to have been an enquiry and a supply of information from the appellant. "
In the current matter, I note that the appellants have appeared to adopt a somewhat cavalier approach to the hearing, and find it difficult not to conclude that they have neglected to exercise the normal courtesies extended to parties engaged in litigation before the Courts. While it may have been a reasonable decision to decide not to proceed with the matter, for whatever reasons, it displays little courtesy to the respondent who had prepared himself to defend the matter. This is all the more surprising in view of the wording of the notice of hearing from the Court to the parties of 2 July 1997, which stated:
"If you do not wish to proceed with the matter, the Court requires written advice of any withdrawal. "
In exercising my discretion in this matter I have sought guidance in previous similar cases, and note that costs have been awarded where special circumstances have occurred. For example, costs were awarded in the matter of EFS (Holdings) Pty Ltd v. The Valuer-General (1980-81) 7 QLCR 14. In that case the appellant failed to appear and the matter was struck out for want of prosecution. The learned Member found at page 15:
"In this matter, the appellant company has not seen fit to advise the Court nor the Valuer-General of any intention not to proceed. There has been adequate time for this action to have been taken between the date of the notice of hearing and the date set down for such hearing. The Valuer-General has been put to expenditure in the matter and I propose to exercise my discretion and make an order for costs as sought."
The events of that case and the current matter are similar, in that the appellant has failed to consider the costs incurred by the respondent in preparing for the hearing.
Decision:
In considering the circumstances of the current matter, I can see no extenuating circumstances where the appellant has sought to advise the respondent that they no longer propose to continue with the appeal. The approach taken by the appellant demonstrated that they had little concern for the impact upon the respondent, who has had to prepare to support his valuation. Mr O'Connor had travelled specifically from Brisbane for the hearing. In the end I find that the Chief Executive has been put to incurring unnecessary costs associated with his defending his valuation. It is ordered that the appellant pay to the respondent the sum of Five hundred dollars ($500) costs in the matter.
(NG Divett)
Member of the Land Court
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