The Trust Company (Australia) Ltd v Valuer-General of New South Wales

[2015] NSWLEC 169

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trust Company (Australia) Ltd v Valuer-General of New South Wales [2015] NSWLEC 169

Hearing dates:

23 October 2015

Date of orders:

23 October 2015

Decision date:

23 October 2015

Jurisdiction:

Class 3

Before:

Craig J

Decision:

1  Woolworths Limited be joined as the Second Respondent in the proceedings

2  By consent I make orders in accordance with the Short Minutes of Order initialled by me and filed with the papers

3  Note that a s 34 conference has been fixed for hearing on Friday 11 December 2015 at 9.15am

4  Note that if the matter has not sooner resolved a second directions hearing will be listed for Friday 18 December 2015

Catchwords:

PRACTICE AND PROCEDURE – application for joinder – r 6.24 Uniform Civil Procedure Rules 2005 – appeal against determination by Valuer-General – whether rights of party seeking joinder will be affected – order for joinder

Legislation Cited:

Uniform Civil Procedure Rules 2005
Valuation of Land Act 1916 (NSW)

Cases Cited:

John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Ross v Lane Cove Council [2014] NSWCA 50; 86 NSWLR 34
State of Victoria v Sutton [1998] HCA 56; 195 CLR 291

Category:

Procedural and other rulings

Parties:

The Trust Company (Australia) Limited (Applicant)
Valuer-General of New South Wales (Respondent)
Intervenor: Woolworths Limited

Representation:

Counsel:
A Beattie, solicitor (Applicant)
B Row, solicitor (Respondent)
A Hemmings (Intervenor)

  Solicitors:
Beatty Legal Pty Limited (Applicant)
Crown Solicitor for NSW (Respondent)
Corrs Chambers Westgarth (Intervenor)

File Number(s):

30807 of 2015

Ex Tempore Judgment

1. The Trust Company (Australia) Limited (the Trust Company) has appealed to this Court pursuant to s 37(1) of the Valuation of Land Act 1916 (NSW) (the Valuation Act). That appeal has been brought following the disallowance by the Valuer-General of its objection to the land value determined for land at 2 Dursley Road, Yenorra (the Land). The Land is a substantial parcel, the land value of which was determined by the Valuer-General at the base date 1 July 2014 to be $24,400,000. The Trust Company objected to that land value on the basis that it was too low, contending that the land value should be $37,800,000.

2. The Land is the subject of a long-term lease granted to Woolworths Limited (Woolworths) on 28 January 1981. The term of that lease is a period of 42 years, expiring in 2023.

3. By Notice of Motion dated 19 October 2015, Woolworths seeks to be joined as a Second Respondent to the proceedings. Its application for joinder is made pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005. That rule enables the Court to order the joinder of a person to proceedings as a party if that person is one who ought to have been joined or whose joinder as a party is necessary for determination of all matters in dispute in any proceedings. The Valuer-General, who is the First Respondent, has indicated that it consents to the joinder of Woolworths as a party to the proceedings while the Trust Company has indicated that it neither opposes nor consents to the Motion for joinder.

4. Under the lease entered into by Woolworths in January 1981, it is required to pay rent calculated at a nominated percentage of the “land value” of the demised land. That “land value” is the land value determined in accordance with the Valuation Act. In addition, Woolworths is required by the lease to pay rates and land tax levied on the Land.

5. It will immediately be apparent that if the land value for which the Trust Company contends is sustained by the Court in this appeal, the rent payable by Woolworths will be substantially above that which it would be required to pay if the rent was otherwise calculated in accordance with the land value determined by the Valuer-General. So also the quantum of rates and land tax payable will differ according to the land value determined by the Court in this appeal.

6. The principles to be applied when determining an application for joinder under r 6.24 are not in dispute. The principle that informs recent decisions upon joinder are founded upon the speech of Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 where, after criticising the dichotomy referred to in earlier cases between “legal” and “commercial” interests when determining whether joinder was appropriate, his Lordship said at 56:

“A better way of expressing the test is will [a non-party’s] rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?”

7. More recently, the principle has been referred to in Ross v Lane Cove Council [2014] NSWCA 50; 86 NSWLR 34 by Leeming JA (Meagher JA and Tobias AJA agreeing) where his Honour stated at [57] that the joinder of a party directly affected by an order is not ordinarily a matter of discretion. He noted that in John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [153] the relevant statement by McHugh J in State of Victoria v Sutton [1998] HCA 56; 195 CLR 291 was identified as an appropriate articulation of the principle. In the latter case, McHugh J said at [77]:

“The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order.”

8. In the brief recitation of fact that I have given for the purpose of the present Motion, it cannot be doubted that the determination to be made in these proceedings raises “an arguable possibility” that Woolworths may be affected by the making of an order in accordance with that sought by the Trust Company. Not only would such an order have the consequence that Woolworths would be required to pay a rent substantially above that for which it would otherwise be liable if the the Valuer-General’s determination is sustained but, as I have said, such an order also has a consequence for the liability that Woolworths is required to bear under its lease, namely payment of rates and land tax.

9. The affidavit filed in support of the Motion provides some calculation of the difference in rent payable by Woolworths, depending upon the land value ultimately determined by the Court. If the Trust Company is successful in persuading the Court to accept the land value for which it contends, that will result in Woolworths being required to pay an additional $1,139,000 per annum over that for which it would be liable to pay if the land value determined by the Valuer-General is applicable. The remaining term of the lease is 8 years.

10. Applying the relevant principles to the circumstances of this case, I consider that it is appropriate to order the joinder of Woolworths as a Second Respondent to the proceedings. It is a party whose joinder is necessary for determination of the principal issue in the appeal.

11. In anticipation that the order sought by Woolworths will be made, the parties have handed to me Draft Short Minutes of Order to be made in preparation of the matter for hearing. I consider those Draft Orders appropriate as they generally accord with the Court’s Practice Notes for proceedings of this kind.

12. Accordingly, I make the following orders:

1. Woolworths Limited be joined as the Second Respondent in the proceedings.

2. By consent I make orders in accordance with the Short Minutes of Order initialled by me and filed with the papers.

3. Note that a s 34 conference has been fixed for hearing on Friday 11 December 2015 at 9.15am.

4. Note that if the matter has not sooner resolved a second directions hearing will be listed for Friday 18 December 2015.

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Decision last updated: 27 October 2015