Trust Company of Australia Limited v Department of Natural Resources and Mines
[2006] QLC 2
•16 January 2006
LAND COURT OF QUEENSLAND
CITATION: Trust Company of Australia Limited v Department of Natural Resources and Mines [2006] QLC 2 PARTIES: Trust Company of Australia Limited
(appellant)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO.: AV 2005/0808 DIVISION: Land Court of Queensland PROCEEDING: Application for an Order DELIVERED ON: 16 January 2006 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Mr JJ Trickett, President ORDER: The Land Court has no jurisdiction in this matter as no valid appeal has been instituted. CATCHWORDS: Practice and procedure – Appeal against annual valuation – Objection and appeal under Valuation of Land Act 1944 – Objection lodged in name of former owner – Appeal in name of owner – Validity of appeal – Jurisdiction of Land Court – Valuation of Land Act 1944, Part 4. APPEARANCES: Mr R Anderson (instructed by Gadens Lawyers) for the appellant
Mr T Quinn (instructed by the Department of Natural Resources and Mines) for the respondent
This is an application seeking an order that the Land Court has no jurisdiction in this matter as no valid appeal has been instituted by Trust Company of Australia Limited (Trust Company) against the valuation made by the Chief Executive, Department of Natural Resources and Mines (the Chief Executive) under the provisions of the Valuation of Land Act 1944 (the Act).
Background
The evidence in this case establishes the following factual background. As at 1 October 2003, the respondent undertook an annual valuation of land required to be valued for land tax purposes, which was to have force and effect on 30 June 2004. The property described at Lot 2 on RP 157971 and situated at 10 Eagle Street, Brisbane (the subject land), was valued at that time at $15,500,000.
At that date, the owner of the subject land was Trust Company, which was registered as owner on 7 September 2004. The previous registered owner was AMP Henderson Global Investors Limited (AMP Henderson). On 3 December 2004, the Chief Executive received a Notice of Objection against the valuation of the subject land in the name of AMP Henderson and dated 28 November 2004. The objection was lodged by agents, M3 Property Strategists.
Trust Company claims that it did not receive a Notice of Valuation from the respondent. The objection was lodged because the manager for the property, AMP Capital, received a "land tax invoice" showing the unimproved value of the property to be $15,500,000. AMP Capital has been unable to locate a copy of the valuation notice issued by the Chief Executive.
Trust Company contends that in the absence of a Notice of Valuation, M3 Property Strategists relied on the details contained in a search of the Department of Natural Resources and Mines IVASE Property Details, which was undertaken on 16 November 2004. That search showed the owner of the subject land as AMP Henderson. It also showed the date of issue of the valuation as 25 October 2004. The objection was lodged in the name of AMP Henderson by M3 Property Strategists.
On 26 July 2005, the respondent issued a decision on objection advising that the objection against the valuation had been disallowed and that the valuation remained unaltered. That Notice of Decision on objection was addressed to AMP Henderson as owner. Then on 6 September 2005, a Notice of Appeal was filed in the Land Court Registry against the valuation. However, the appeal was instituted in the name of Trust Company as owner, by its solicitors, Gadens Lawyers. That appeal has since been set down for hearing commencing on 6 March 2006, together with six other appeals against valuations in the Brisbane Central Business District, which have become known as the "CBD 7" group of appeals.
The Relevant Provisions of the Valuation of Land Act 1944
Part 4 of the Act provides for the making and issuing of annual valuations and for objections and appeals against those valuations. The Chief Executive is required to make an annual valuation of all land in a local authority area, except in circumstances which are not relevant here (s.37(1)), and to give each owner of the land a notice of the valuation of that owner's land. "Owner" is defined in s.7 as including the registered proprietor of freehold land.
Under s.42(1) of the Act, an owner who is dissatisfied with the valuation of the owner's land may object against that valuation within 42 days after the annual valuation notice is given to the owner. The Chief Executive is required to consider an objection and issue to the objector a notice of decision thereon (s.43).
An owner who has objected pursuant to s.42 against the valuation may, if dissatisfied with the decision of the Chief Executive on that objection, appeal to the Land Court against the valuation (s.45).
The Present Application
The Chief Executive brings this application seeking an order that the Court has no jurisdiction as no valid appeal has been instituted. The Chief Executive contends that the appellant who purports to appeal, was not an owner who had objected as required by s.45(1) of the Act, the objection having been lodged by AMP Henderson.
The Chief Executive further contends that a historical title search shows that AMP Henderson was a previous registered owner, but Trust Company became the registered owner on 7 September 2004 and remained registered owner when, on 28 November 2004 the objection was lodged on behalf of AMP Henderson as owner. The appeal instituted on 6 September 2005 was on behalf of Trust Company but, counsel for the Chief Executive, Mr Quinn, contends that the appeal cannot be valid because Trust Company was not an owner who had objected.
Mr Anderson, counsel for Trust Company, had no disagreement with the facts as outlined by the Chief Executive. However, he submitted the real issue is the determination of the proper value of the subject land. This appeal is one of seven CBD appeals that are to be heard together commencing on 6 March 2006.
Mr Anderson submits that there would be little utility in dismissing this appeal when, as contended by Trust Company, the Chief Executive has not issued a notice of valuation to the owner of the property as required by s.41A of the Act. Once the Chief Executive does so, Mr Anderson informs me that Trust Company will object in similar terms to the objection lodged by AMP Henderson. He submits that it is inevitable that the Chief Executive will disallow the objection, as with the objection decision issued on 26 July 2005 to AMP Henderson, and Trust Company would then prosecute an appeal.
Mr Anderson submits that this application should be dismissed and seeks an order directing the Chief Executive to comply with the requirements of s.41A of the Act and issue a valuation notice to the owner of the property, that is, Trust Company.
The Validity of the Appeal by Trust Company
Neither party has been able to produce the Notice of Valuation of the subject land, or a copy thereof. The solicitors, managers and agent for Trust Company all contend that they have been unable to locate such a notice and have no record of receiving it. The objection lodged by AMP Henderson resulted from M3 Property Strategists being alerted of the valuation through a land tax notice.
Counsel for the Chief Executive informs me that he is instructed that the Chief Executive does not keep a copy of the Notice of Valuation as such, and that the Chief Executive's officers could not be certain that any reconstructed notice would be in the same form as that issued to the owner. Apparently this is because the valuation roll is held electronically and is continually updated.
Counsel for Trust Company contends that no valuation notice was issued to it as owner, but was issued to the previous owner, AMP Henderson. Therefore, it is argued, the Chief Executive has not complied with the requirements of s.41A of the Act and should issue a valuation notice to the owner, Trust Company, as soon as possible to allow it to object and appeal against the valuation.
On the other hand, counsel for the Chief Executive argues that until the Notice of Valuation is produced, there is no evidence that it was given to anyone other than the owner. If it had indeed been issued to Trust Company, but the objection was lodged in the name of AMP Henderson by mistake, the Chief Executive had done what was required and need do nothing further. In those circumstances, as no valid objection had been lodged, Trust Company may be able to lodge a late objection under s.44 of the Act and endeavour to satisfy the Chief Executive that its failure to make a timely objection happened through no fault of Trust Company.
However, as the hearing progressed, the Chief Executive was prepared to concede that the Notice of Valuation had probably been given to AMP Henderson. Therefore, on the basis of the evidence and of that concession, I find that on the balance of probabilities, the Chief Executive issued the valuation notice to AMP Henderson, who was not the owner of the subject land and that the owner, Trust Company, has not been given a Notice of Valuation as required by s.41A of the Act.
However, while that is something for the Chief Executive to take into account in deciding what further action should be taken, it does not affect the validity of this appeal. No matter how the circumstances arose, AMP Henderson in whose name the objection was lodged was not the owner of the subject land at the relevant date. It was therefore not entitled to lodge an objection. Furthermore, although Trust Company, who was the owner at the relevant date, instituted the appeal to the Land Court against the valuation, Trust Company was not the "owner" who had objected. (See Department of Natural Resources and Mines v NE Christie (NSW) Pty Limited [2004] QLAC 0091)
Therefore, I have no alternative but to find that the appeal was not properly instituted and that there is no valid appeal.
However, it is clear that Trust Company is dissatisfied with the valuation of the subject land and wishes to contest it. Until the issue of the validity of the appeal arose, this was one of seven major CBD valuation appeals set down for hearing on 6 March 2006. Directions by the Court have been given and it is obvious that much of the evidence will be common to all cases. Although I have no power to make orders in this regard, it would be in the best interests of the parties and of the Court, if the parties could expedite any process which would result in the contested valuation of the subject land being dealt with at the same time as the other appeals.
I am informed by Mr Quinn that the Chief Executive does not seek an order for costs. Therefore, I will make no order as to costs.
Order
The Land Court has no jurisdiction in this matter as no valid appeal has been instituted.
JJ TRICKETT
PRESIDENT OF LAND COURT
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