The Trust Company (Australia) Limited v Valuer-General
[2013] QLC 62
•8 November 2013
LAND COURT OF QUEENSLAND
CITATION: The Trust Company (Australia) Limited v Valuer-General [2013] QLC 62 PARTIES: The Trust Company (Australia) Limited
(appellant)v. Valuer-General
(respondent)FILE NO: LVA617-13 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction – Appeal against Unimproved Valuation DELIVERED ON: 8 November 2013 DELIVERED AT: Brisbane JUDICIAL REGISTRAR: Mr BR O'Connor ORDER: The Court has jurisdiction to decide this appeal. CATCHWORDS: Jurisdiction – Late filing of appeal – Whether reasonable excuse APPEARANCES: Heard on the papers.
The issue for determination in this matter is whether the Court has jurisdiction to hear the appeal which was lodged 3 days after the due date. Section 158 of the Land Valuation Act 2010 (LVA) allows for "reasonable excuse" as a cause for such delay. Subsection (2) states:
"(2) The Land Court can hear the appeal only if—
(a)the valuation appeal notice was filed 1 year or less after the objection decision notice was issued; and
(b)the appellant satisfies the court there was a reasonable excuse for not filing the notice within the appeal period.
Example of reasonable excuse—
The notice of the valuer-general’s decision or the valuation appeal notice was lost or delayed in the ordinary course of post."
The question then is whether the explanation for the late lodgement advanced by the appellant falls within the term "reasonable excuse" as interpreted by the relevant authorities, particularly those since the introduction of s.57 of the Valuation of Land Act 1944 as amended in 2000.
Section 57 was, in essence, the predecessor to s.158 (LVA) and was cast in similar terms. The authorities on the term "reasonable excuse" or similar expressions are usefully collected in the decision of the Land Court in Anthony v Chief Executive, Department of Natural Resources, 10 November 2000. 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 one might have expected to delay the taking of action by a reasonable man".
Background
Two affidavits supplied by the appellant outline the relevant factual background in this matter. The first is an affidavit by Matthew Gillett from m3property, an assistant valuer employed by that firm. Relevant parts of his affidavit are quoted:
"3.I had the conduct of the m3 file for lodging the objection against the valuation as at 1 October 2012 (the 2012 valuation) and for lodging the appeal against the decision on objection relating to 26 Commercial Road, Newstead, Queensland (the Land) for the Appellant under the Land Valuation Act 2010 (Qld) (LVA) from 15 May 2013. I continue to have the conduct of the matter for the Appellant.
4.Heathley Ltd ACN 001 477 505 is the Responsible Entity relating to the Land. The Appellant is the Custodian Trustee for the Land. The Responsible Entity is responsible for the day to day management of the Land and provides instructions to m3 in relation to the 2012 valuation.
5.The instructions that Daniel Thompson of Heathley Ltd gave to m3property on 15 May 2013 for the conduct of the 2012 objection were broad in scope and included:
(a)lodging and pursuing objections to the 2012 valuation on behalf of the Appellant; and
(b)taking all steps necessary to protect the interests of the Appellant including but not limited to:
(i)communicating with the Department;
(ii)acting as agent and the address for service for decisions on objection;
(iii)advising on when the relevant decisions on objections were or were likely to be made;
(iv)preparing an appeal if the Valuer-General disallowed the objection; and
(v)lodging the appeal if the valuation amount remained unaltered in the decision on objection.
6.On 17 May 2013 a notice of objection was lodged with the Valuer-General against the 2012 valuation of the Land (the objection).
7.On 20 July 2013, the Valuer-General acknowledged that the objection had been properly made.
8.On 14 August 2013 the Valuer-General issued a decision on objection relating to the objection. The decision on objection was that the valuation for the Land would remain unaltered.
9.On 19 August 2013 the decision on objection was received by post by m3property and was date stamped "received 19 August 2013". The decision on objection was entered into the diary system of m3property. Unfortunately, due to human error, the date entered in the m3proeprty diary system, for the commencement of the usual appeal period of 60 days, was the date of receipt of the decision on objection, 19 August 2013, rather than the date of issue of the decision on objection which was 14 August 2013.
10.On or about 19 August 2013 m3property received instructions from Daniel Thompson of Heathley Ltd to lodge an appeal against the decision on objection.
11.On Wednesday 16 October 2013:
(a)I reviewed the m3 file for the land as part of the preparation of the appeal and it came to my attention that the calculation of the due date was incorrect and that the usual appeal period of 60 days from the date of issue lapsed on Monday 14 October 2013; and
(b)I then caused the appeal against the decision on objection to be lodged with the Land Court of Queensland.
12.On Thursday 17 October 2013 I phoned the Valuer-General and spoke to Michael McGarry who informed me that the Valuer-General does not have a position on the issue and that if asked by the court they would not oppose the appeal being accepted."
The second affidavit is by Daniel Thompson c/- Heathley Ltd, the Responsible Entity for the conduct of the matter on behalf of the Trust Company (Australia) Limited. The relevant parts of Mr Thompson's affidavit are extracted:
"7.On or about 19 August 2013 I instructed m3 Property Strategists to lodge an appeal against the decision on objection in accordance with relevant legislation. Heathley Ltd relied upon the expertise of m3 Property Strategists to lodge an appeal within any applicable time periods.
8.On 17 October 2013 I received a telephone call from Matthew Gillett who advised me that the appeal of the decision on objection had not been lodged within the usual appeal under the Land Valuation Act 2010."
Issue
The specific issue in this case is whether the action of Heathley Ltd, in placing the appeal in the hands of the m3property valuers organisation and instructing them on 17 August 2013 to lodge the appeal, amounts to "reasonable excuse" in all the circumstances.
Authorities
Cases where the appellant has relied on an agent to lodge an appeal (and such being subsequently lodged out of time) were recently reviewed by the then Land Court President in Trust Company of Australia Limited v Department of Natural Resources and Water [2007] QLC 0045. The Court stated:
"… it is clear that essentially the issue in this case is whether this Court should apply the relatively strict approach adopted by the Land Appeal Court in the Union Fidelity Trustee Company case or the more flexible approach adopted by a later Land Appeal Court in the Congress Community Development case."
After considering these two cases in some detail, it further stated:
"Having regard to the circumstances of the present case and the authorities referred to above, I am of the view that the more flexible approach taken by the Land Appeal Court in the Congress Community Development case should be followed in the present case. Muir J found that there was reasonable excuse for the 'slip' of the solicitor in that case. In my view, the same could be said for the 'slip' of the solicitor in this case." (first limb)
"However, if that was not sufficient to constitute a reasonable excuse, I would adopt the reasoning of Mr Wenck and Dr Divett. As in that case, in the present case the fault lies with the solicitors, but the applicant has done everything that could be expected of a 'reasonable man' in entrusting the institution of the appeal to its solicitors." (second limb)
Consideration
The current case is distinguishable from the Trust Company authority discussed above in that the appeal there was placed in the hands of solicitors, as opposed to valuers and property agents as here. Solicitors could generally be expected to have greater knowledge of Court filing requirements and related procedural issues than valuers and the like. However m3property is known to this Court and to the wider property industry as a body with extensive experience in Court matters in various jurisdictions throughout Australia, including Queensland.
The appellant took a responsible course in engaging m3property not only to provide valuation advice but to also follow matters through on any appeal aspects.
Indeed Mr Thompson deposes that he specifically instructed m3property to appeal after an unsuccessful objection.
The appellant could reasonably assume m3property would follow through with time limits for such a concern.
The fact that the appeal was not lodged until after the time required (if only by a short time due to a wrong recording of the cut off date) was no fault of the appellant.
In current circumstances I find that reasonable excuse has been established by the application of the second limb of the Trust Company case (2007).
Order
The Court has jurisdiction to decide this appeal.
BR O'CONNOR
JUDICIAL REGISTRAR
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