Valuer-General v Suncorp Metway Insurance Pty Limited (No 2)

[2018] QLAC 8

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Valuer-General v Suncorp Metway Insurance Pty Limited (No 2) [2018] QLAC 8*

PARTIES:

Valuer-General
(appellant)

v

Suncorp Metway Insurance Pty Limited

(respondent)

FILE NOs:

LAC009-17

Land Court No LVA586-15

DIVISION:

Land Appeal Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Land Court of Queensland, Brisbane

DELIVERED ON:

24 October 2018

DELIVERED AT:

Brisbane

HEARING DATES:

8-9 March 2018 and 31 August 2018

THE COURT:

Dalton J
FY Kingham, President of the Land Court
PG Stilgoe OAM, Member of the Land Court

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS - s 171 Land Valuation Act 2000 - where usual order is each party bears their own costs - whether Valuer-General's conduct was vexatious - where Valuer-General’s valuation was declared invalid - where there was no order made as to costs

Land Valuation Act 2010, s 171

Mudie v Gainriver Pty Ltd & Anor [2003] 2 Qd R 271, considered
Attorney-General v Wentworth (1988) 14 NSWLR 481, considered

APPEARANCES:

DB Fraser QC (instructed by In-house Legal, Department of Natural Resources, Mines and Energy) , for the appellant
RJ Anderson QC (instructed by Otto Martiens Lawyers), for the respondent

1. DALTON J: I have read and agree with the reasons of Kingham P.

1. PRESIDENT KINGHAM: On 24 September 2018 the Court allowed the Valuer-General’s appeal against the Land Court’s decision from 25 August 2017. It set aside the orders below and declared that the 2015 maintenance valuation issued by the Valuer-General for property identification number 1284749 was invalid. The Court ordered that Suncorp Metway Insurance Pty Limited’s appeal was otherwise dismissed.[1]

   [1]Valuer-General v Suncorp Metway Insurance Pty Limited [2018] QLAC 6.

1. The Court ordered the parties to provide written submissions regarding the costs of this appeal and the appeal below. However, it is not open to the Court to make an order about the costs of the hearing below. Suncorp sought its costs of that proceeding and Member Isdale refused that application on 29 September 2017.[2] Neither party appealed that decision.

   [2]Suncorp Metway Insurance Pty Ltd v Valuer-General [2017] QLC 53.

1. Suncorp submits the Valuer-General should pay its costs of the appeal. The Valuer-General submits each party should bear their own costs. For the reasons that follow, the Court makes no order as to costs. 

1. Costs are governed by s 171 of the Land Valuation Act 2010. Each party must bear their own costs unless the Court considers any of the circumstances in s 171(2) apply. Relevantly, Suncorp argues that the Valuer-General has acted vexatiously by issuing an invalid valuation, and subsequently making arguments relying on its validity.

1. Suncorp submits that the term “vexatious” does not require an examination of subjective attitude or intent, but rather only whether the appeal was vexatious as a matter of objective fact. In Mudie v Gainriver Pty Ltd & Anor,[3] the Court of Appeal noted in a different statutory context that “vexatious” should be given its ordinary meaning. McMurdo P and Atkinson J referred to the definition of vexatious from Oceanic Sun Line Special Shipping Company Inc v Fay[4] as being “productive of serious and unjustified trouble and harassment”.[5] Further, in Attorney General v Wentworth,[6] Roden J considered the meaning of “vexatious” within the framework of the Supreme Court Act 1970 (NSW). His Honour explained that proceedings can be vexatious, regardless of the subjective intent of the litigant, if “they are so obviously untenable or manifestly groundless as to be utterly hopeless.”[7]

   [3][2003] 2 Qd R 271.

   [4](1988) 165 CLR 197.

   [5]Mudie v Gainriver Pty Ltd & Anor [2003] 2 Qd R 271, 284.

   [6](1988) 14 NSWLR 481.

   [7]Attorney General v Wentworth (1988) 14 NSWLR 481, 491.

1. Despite the issue about what was being valued, the Valuer-General always maintained its valuation was valid. The Valuer-General succeeded in overturning the decision below, although the appeal turned on an argument not made by either party. Specifically, both parties were mistaken about the Valuer-General’s power to value the leased area. Suncorp may have suffered delay, expense, and “trouble”, but the Valuer-General’s position in the appeal was not so obviously untenable or manifestly groundless as to be utterly hopeless.

1. The Valuer-General fulfilled a statutory function in issuing the valuation. There is no evidence that he proceeded improperly, rather than mistakenly, in doing so.

1. The Court will not make an order as to costs.

1. MEMBER STILGOE: I have had the benefit of reading Kingham P’s reasons in draft. I agree with her Honour’s reasons and conclusions.

DALTON J
LAND APPEAL COURT

FY KINGHAM
PRESIDENT OF THE LAND COURT

PG STILGOE OAM
MEMBER OF THE LAND COURT