WM George Pty Ltd ATF WM George Trust v Chief Executive, Department of Natural Resources

[2000] QLC 71

[2000] QLC 71

 

LAND COURT, BRISBANE

10 November 2000

Re:Appeal against Annual Valuations - Valuation of Land Act 1944 -

Local Government: Brisbane City - Brisbane. Property IDs - 30000210; 1284767; 1228661; 9123478 (AV00-440/441/ 442/471).

WM George Pty Ltd ATF WM George Trust (AV00-440) And
WM George Pty Ltd ATF WM George Trust (AV00-441) And

Carlton International Pty Ltd (AV00-442) And

Yuusei Kanri Services Co Pty Ltd (AV00-471) v.

Chief Executive, Department of Natural Resources

DECISION ON JURISDICTION

Background:

These matters relate to lands at 43 Herschel Street, City - Lot 5 on RP 813314 (AV00-440); 30 Herschel Street, City - Lot 7 on B361 (AV00-441); 2 Roma Street, City - Lot 1 on RP 172274 (AV00-442); and 1993 Logan Road, Upper Mt Gravatt - Lot 1 on RP 85445 (AV00-471). The matters before the Court relate to the preliminary question of whether the Court has jurisdiction to hear the merits of the matters in respect of appeals lodged against the annual valuations of the four properties at 1 October 1999, under the Valuation of Land Act 1944.

The four appeals were lodged by the same agent at the same date, and were heard concurrently. There was no appearance for the appellants, and Mr R Paterson, Principal Legal Officer, appeared for the respondent. In view of the failure of the appellants to appear, the Court acceded to the application by Mr Paterson, and struck out all four appeals for want of prosecution. In the event Mr Paterson then sought costs thrown away by the respondent to a total amount of $500 in the four matters. The Court reserved its decision on costs.

The facts:

The Chief Executive issued valuations on 27 March 2000 as follows:

·    $2,100,000  -  (AV00-440)

·    $1,000,000  -  (AV00-441)

·    $9,000,000  -  (AV00-442)

·    $1,100,000  -  (AV00-471)

Following objections the Chief Executive confirmed the unimproved values on 43 Herschel Street, 30 Herschel Street and 2 Roma Street on 27 June 2000; and amended the unimproved value of 1993 Logan Road to $1,080,000 on 27 June 2000. The appellants all appealed to the Land Court on 10 August 2000.

On 14 August 2000 the registrar of the Land Court notified each of the appellants that the appeals appeared to have been lodged after the statutory period of 42 days allowed for an appeal under s.45(2) of the Act, which was 8 August 2000. The registrar advised that such appeals did not lie, unless the appellants were able to satisfy the requirements of s.57(1) and (2), copies of which were supplied to the agent for information. The notification of 14 August 2000 in all cases specified that a response to the registrar was required within 21 days as to whether the appellant would be proceeding, or advice if the matter was to be withdrawn.

On each of the four matters the agent, on behalf of the appellants, advised that they would be proceeding, and when the appeal was called to hearing, would seek to satisfy s.57(1)(b). Those advices were received by the registrar on 1 September 2000. The responses were acknowledged by the registrar on 4 September 2000, and the matters were subsequently set for hearing on 24 October 2000 by court notice of 9 October 2000. Copies of the registrar's letters to the appellants of 14 August 2000, and 4 September 2000, and the court notice of 9 October 2000 were also referred to the Chief Executive for his information. There was no interim advice from the appellants that the matters would not be proceeding.

On calling the matter on 24 October 2000, and noting no appearances for the appellants, the registrar made enquiries with the agent for the appellants. The Court was advised by telephone at that time that the appellants now intended not to proceed, and in fact wished to withdraw the appeals.

Mr Paterson seeks support for costs in Rule 18 of the Land Court Rules 2000, which states:

"18.  If an applicant discontinues or withdraws, the court may order the applicant to pay -

(a)the costs of the party to whom the discontinuance or withdrawal relates up to the date of the discontinuance or withdrawal, if the party has not consented to the discontinuance or withdrawal; and

(b)the costs of another party or parties caused by the discontinuance or withdrawal. "

Mr Paterson also notes that while the Court should exercise restraint in awarding costs, it is appropriate for the Court to do so if it considers it appropriate in the circumstances of a particular matter. Mr Paterson further argues that parties to an appeal to this Court should not undertake their responsibilities lightly, bearing in mind the impacts upon the other party.

Mr Paterson also draws my attention to Rule 14(1) of the Land Court Rules 2000 in respect of failure to prosecute proceedings, which state:

"14.(1) A respondent in a proceeding may apply to the court for an order dismissing the proceeding for want of prosecution if -

(a)the applicant is required under these rules to take a step in the proceeding, or is required to comply with an order of the court, within a stated time; and

(b)the applicant does not do what is required within the time stated.

(2)     The court may dismiss the proceeding or make another order it considers appropriate on an application under subrule (1).

(3)   An order dismissing a proceeding for want of prosecution may be set aside only on appeal or if the parties agree to the setting aside.

(4)     Despite subrule (3), the court may vary or set aside an order dismissing a proceeding for want of prosecution made in the absence of the applicant, on terms the court considers appropriate, and without the need for an appeal."

In exercising my discretion on costs, I am reminded that guidance is provided in respect of any costs of an adjournment under s.62 of the Valuation of Land Act 1944, or in respect of a determination of an appeal under s.70 of that Act. Where an appeal is struck out for want of prosecution, the matter of costs may then be determined at the discretion of the Court.

The discretion of the Court on costs is to be found in the new Land Court Act 2000, which was enacted on 1 July 2000, where s.34(1) states:

"34.(1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate."

The awarding of costs against a party under s.34(3) may be made an Order of the Supreme Court and enforced in the Supreme Court.

The powers to award costs mirror similar powers enacted in the previous Land Act 1962, which has now been superseded by the Land Court Act 2000. In exercising my discretion, I note the decision of this Court in EFS (Holdings) Pty Ltd v. Valuer- General (1980-81) 7 QLCR 14, where the learned Member, later President, said at p.15:

"The general power of this Court to award costs is to be found in section 42(9) of the Land Act 1962-1978. The Court has a discretion in the matter. This discretion must be exercised judicially by having regard to relevant considerations. 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 circumstances of that matter closely parallel the current matter. I believe judicial consideration of the facts of this matter support a similar conclusion. In the current matter Mr Paterson was required to prepare applications to the Court on two separate bases.

Firstly, if recent amendments to s.57(1) of the Valuation of Land Act 1944, enacted on 10 October 2000, were to be considered as substantive matters, then evidence would be given on the basis of s.57(1) prior to the date of effect of the amendment. Under s.57(1), as it then was, the powers of the Court to consider reasons for the lateness of the appeal were more circumscribed, and relate only to acceptable delays in the normal course of the mail.

Secondly, Mr Paterson was also required to prepare an application on the basis that the lateness of the lodgment of the appeal could be considered purely as a procedural matter. On such a basis, there is now, since 1 October 2000, more scope for the Court to consider the reasonableness of the circumstances surrounding the lodgment of the appeal.

"57.(1) If a notice of appeal is filed in the Land Court registry after the time stated in section 55(2), the registrar of the court must notify the

owner that the appeal may not be heard unless the owner satisfies the court that the owner has a reasonable excuse for filing the notice after the time stated."

In the end neither basis of the appeal needed to be resolved as the matter was struck out. However, the respondent has been put to considerable disadvantage in preparing for the jurisdictional hearing, and has a right to seek reimbursement of those costs. That the claim from Mr Paterson represents only $500, in my opinion, reflects a very reasonable and conservative approach to seeking redress in this matter.

I therefore order that the appellants (4) collectively pay to the respondent a total amount of $500 for costs thrown away by the respondent.

Member of the Land Court