Zadtech Pty Ltd v Chief Executive, Department of Natural Resources and Mines
[2001] QLC 95
•21 September 2001
|
BRISBANE
21 September 2001
Re: Appeals against general valuations
Valuation of Land Act 1944
Property ID No: 40049346 to 40049368
Local Government: Calliope
(V2001-0016 to 0038)
Zadtech Pty Ltd
v.
Chief Executive, Department of Natural Resources and Mines
J U D G M E N T
These are appeals against general valuations of certain lands owned by the appellant as at 30 June 2000. The lands in question originally comprised Lot 401 on RP 892594. An annual valuation notice for this land was issued on 27 March 2000 under section 37 of the Valuation of Land Act 1944 (the Act). Pursuant to this notice, the land was valued at $280,000 as at 1 October 1999 with an effective date of 30 June 2000.
On 30 June 2000, the appellant lodged a plan of subdivision of this land in the Land Titles Office. The plan was registered on 4 July 2000, with the effect that Lot 401 was divided into Lots 74 to 95 and Lot 500 on SP 131262. On 18 July 2000, valuation notices for the subdivided land were issued by the respondent with an effective date of 30 June 2000 and a total value of $982,000, the date of valuation being 1 October 1999.
The appellant has appealed against the alteration of the valuation. The parties have agreed that the matter be dealt with by way of written submission as the only issues between them are questions of law.
The main issue is whether the respondent was entitled to alter the annual valuation in the way described above. Section 28(1) of the Act provides that no alteration shall be made in the valuation of any parcel of land during the period during which an annual valuation is in force unless, inter alia, -
“(a) … such land is subdivided during such period.”
Section 29(1) of the Act provides that “The Chief Executive may at any time alter the valuation of any land the valuation of which may be altered under s.28. …”
Section 20 provides that the Chief Executive shall fix the date on and after which any valuation or alteration of any valuation of land made by the Chief Executive shall be the valuation of that land and the notice of valuation shall specify that date.
There is no dispute between the parties that the Chief Executive was entitled, under ss.28(1)(a) and 29 of the Act, to alter the annual valuation because of the subdivision of the land. The real issue concerns the date when the altered valuation should come into effect. The appellant says that the operative date should be 4 July 2000 because that is when the land was subdivided, by registration of the plan SP 131262. The respondent submits that the operative date should be 30 June 2000, which is the date designated as the date of effect of the new valuation issued by the Chief Executive on 18 July 2000. The respondent says 30 June 2000 is the appropriate date because that is the date when the plan of subdivision SP 131262 was lodged for registration and when, for reasons discussed further below, the parcels came into being as separately identifiable parcels of land.
The Act does not expressly state when the altered valuation is to come into effect. The Chief Executive is required, under s.20, to fix the date when the new valuation is to come into effect, but there is no provision indicating, in a case of this nature, how that date is to be fixed.
In State Government Insurance Office (Queensland) v The Valuer-General (1980-81) 7 QLCR 171 at 196, the learned President said:
“To obtain consistency and correct relativity of valuation in respect of parcels created during a valuation period, it is necessary to go back to the level of valuation applying at the date of valuation for that period – the common date as at which all lands in the city or the shire had been valued. However the parcel being valued has to be looked at in the environment, subject to any relevant laws and with the characteristics it possesses as at the date when it becomes liable to be valued, i.e. when it was created as a separate parcel. (emphasis added)”
This approach was applied in Del Villar Investments Pty Ltd v The Valuer General (1986-87) 11 QLCR 159 at 162. It is considered that the effect of those decisions is that the lands in question became liable for revaluation on the date when they were subdivided and that the lands were held to be subdivided when they were created as separate lots. However in neither case is there any specific discussion as to how to ascertain the date on which the lot is created as a separate parcel. The effective date of the valuation in Del Villar was 14 February 1985. It appears that a plan of the lot was compiled in November 1984 and registered on 6 March 1985. The learned President said (at 160) that the lot as a separate parcel calling for a valuation as such under the provisions of section 13(2) [now section 28(1)] of the Act appeared to have come into being at or about the effective date. There is no indication in the report as to when the plan was lodged for registration. The case is of little assistance in determining with any precision, when the lots were created as separate parcels. Similarly, in a case such as the present, the decision in Lombardo v Development Underwriting (WA) Pty Ltd (1971) 27 LGRA 456, which was also relied on by the respondent, is of no direct assistance in resolving this problem as that case was concerned with interpreting the provisions of the Town Planning and Development Act 1928 (WA) in relation to facts very different from the facts in this case.
The current definition of the term “subdivide” was inserted into the Act in 1993 by the Lands Legislation Amendment Act 1993. At the time of the decisions in State Government Insurance Office v The Valuer-General and Del Villar Investments Pty Ltd v The Valuer General that definition did not apply. Now that the Act contains the definition of subdivide to be found in s.8, I have concluded that the date when the land becomes liable to be revalued is the date when it is subdivided as defined by s.8.
The appellant’s submission that the date of registration of SP 131262 (4 July 2000) was when the land was subdivided is based primarily on that definition.
Section 8 provides:
“Meaning of “subdivide”8.(1) “Subdivide” land means subdivide land into parts.
(2) Land may be subdivided into parts by -
(a) sale, conveyance, transfer or partition; or
(b)an agreement, conveyance or instrument between living persons under which a part of the land becomes immediately available for separate disposition or occupation; or
(c) the issue of a certificate of title under the Land Title Act 1994 for a part of the land.”
The appellant submits that neither subparagraphs 2(a) nor 2(b) are relevant in this case as none of the events described in those paragraphs had occurred at any relevant time. The only relevant event was that described in s.2(c).
It is noted that a certificate of title is no longer issued automatically under the Land Title Act 1994. The indefeasible title for a lot is the correct particulars in the freehold land register about the lot. (s 38, Land Title Act). A certificate of title issues only on the request in writing of the registered owner (s 42(1), Land Title Act). The reference in s.8(2)(c) of the Valuation of Land Act to the issue of a certificate of title was inserted prior to the introduction of the Land Title Act and at a time when certificates of title issued automatically on the registration of the relevant dealing under the predecessor legislation, the Real Property Acts 1861 – 1993. It is considered that, in the light of the changes introduced by the Land Title Act, s.8(2)(c) should be read as a reference to the point of time when a certificate of title could issue under the Land Title Act, that is, when the relevant dealing is registered.
The appellant submits that the earliest possible date that the land was subdivided, for the purposes of s.28(1)(a) of the Act was 4 July 2000 when the plan of subdivision was registered. On this basis, the correct valuation of the land as at 30 June 2000 should be $280,000, as originally assessed by the respondent.
The respondent counters that submission by saying that -
(i) by virtue of the provisions of the Land Title Act 1994, the lands were created as separate parcels on 30 June 2000;
(ii) the result was that the land was partitioned on that date within the meaning of s.8(2)(a) of the Act and therefore subdivided on that date; and
(iii) since 30 June 2000 was the date on which the land was subdivided, the date of effect for the consequential revaluation should be 30 June 2000.
SP 131262, which is a plan of subdivision within the meaning of s.49 of the Land Title Act, was lodged for registration on 30 June 2000 and registered on 4 July 2000. Section 49A(2) of the Land Title Act provides that each of the lots defined in the plan is created when the plan is registered. A “lot” is defined in Schedule 2 to mean a separate, distinct parcel of land created on -
“(a) the registration of a plan of subdivision; or
(b) the recording of particulars of an instrument; …”If s.49A(2) is considered by itself, then it would seem that the separate lots in the plan were created when the plan was registered on 4 July 2000. Section 174 supports this conclusion as it provides that an instrument is registered when the particulars are inserted in the freehold land register – in this case 4 July 2000. This interpretation is reinforced by ss.181 and 182 of the Land Title Act which provide that until registration (emphasis added) no interest is created at law and that on registration (emphasis added) an interest is created and vests in the person identified in the instrument as the person entitled to the interest.
However the respondent has submitted that ss.175, 178(1) and (2) and 179 of the Land Title Act must be taken into account and accordingly, the conclusion that should be drawn is that the separate parcels were created on 30 June 2000.
Section 175 of the Land Title Act provides that “a registered instrument forms part of the freehold land register from when it is lodged”. The word “instrument” is defined in Schedule 2 to the Land Title Act to include a map or plan of survey that may be lodged. Section 178(1) provides that registered instruments have priority according to when each of them was lodged and not according to when each of them was executed. Section 179 provides that the particulars of a registered instrument recorded in the freehold land register are conclusive evidence of matters such as registration and content of the instrument and when the instrument was lodged and registered.
The decision as to whether these provisions in the Land Title Act have the effect that the parcels were created as separate parcels on 30 June 2000, must rest primarily, it is considered, on the meaning to be given to s.175 of that Act.
SP 131262 is a plan of survey and therefore is an instrument within the meaning of s.175. Thus, applying s.175, the plan of subdivision forms part of the freehold land register from when it was lodged. The respondent submits that the effect of the section is that, once the plan is registered, it operates retrospectively to the date of its lodgment, 30 June 2000 with the result that the land was divided into separate lots on that date, pursuant to s.49A(2) of the Land Title Act.
It appears that there has been no decision by a court in Queensland as to the meaning of s.175. More than one interpretation is possible. It may mean that a registered instrument is to operate retrospectively to the date it was lodged. Alternatively it may simply mean that, in conjunction with s.178, it assists in establishing priority between registered instruments. In the circumstances, it is legitimate to consider whether any assistance can be obtained from the predecessor legislation to the Land Title Act, the Real Property Acts 1861-1993. It is noted that in Beames v Leader [2000] 1 QdR 347, a similar analysis was undertaken. The Court of Appeal considered the provisions of the Real Property Act 1861, and the Queensland Law Reform Commission Report on the Consolidation of the Real Property Act (Report No 40) (which was the Report leading to the introduction of the Land Title Act) in interpreting s.185(1)(g) of the Land Title Act.
There was no direct equivalent of s 175 in the Real Property Acts. The section is somewhat similar to s.14 of the Real Property Act 1877, which provided that:
Section 14Instrument to take effect from date of production for registration
14. All instruments when registered shall take effect from the date of the production of such instruments to the Land Registry for registration which date shall be expressed in a certificate of title or other instrument issued by him [sic].
In Re Deane’s Transfer (1898) 9 QLJ 106, the Full Court held that a writ of execution was an instrument within the meaning of the Real Property Acts and that the effect of s 14 was that once a writ of execution was registered it was effective against the land from the date of production to the registrar. This decision was followed in Day v General Credits Ltd [1981] QdR 115 at 117. Thus the effect of those decisions is that, under the Real Property Acts, once registration occurred, the registered instrument operated retrospectively to the date of lodgment.
The question is whether that interpretation should be given to s.175 of the Land Title Act. When s.175 says that a registered instrument forms part of the freehold land register from when it is lodged does this mean that the instrument operates retrospectively to the date of lodgment? The answer to that question is not obvious. There is nothing in the explanatory notes to the Land Title Act 1994 which assists in the interpretation of the section. Similarly, the Queensland Law Reform Commission Report on the Consolidation of the Real Property Act, (Report No. 40) contains nothing which assists in easily resolving the issue. The Report proposed the introduction of Clause 111 which provided so far as is relevant that,
“(3) When registered, an instrument -
(a) forms part of the Register; [see now s 31, Land Title Act]
(b) operates as a deed; [see now s 176, Land Title Act]
(c) operates from the date and time it is lodged.”It is clear that Clause 111(3)(c), if enacted, would have had the same effect as s.14 of the Real Property Act 1877. However, s.175, as finally enacted, is drafted differently, so that its meaning is less clear. Nevertheless, given the history of the section, I have come to the conclusion that it would appear to be the intent of the legislature that, because the registered instrument forms part of the freehold land register from the time when it is lodged, then it must take effect from that time also. This conclusion is supported by Christensen, Dixon and Wallace, in the work Land Title Law and Practice (1996, LBC Information Services) at [10.230] where it is stated that the section [175] backdates the benefits of registration to the date of lodgment once the instrument is registered. In this case, therefore, that conclusion means that the land was subdivided, for the purposes of the Land Title Act on 30 June 2000.
If I am wrong in that interpretation of s 175, an alternative interpretation is that the purpose of s 175 is simply to provide a foundation on which s.178(1) operates. That is, s.175 establishes that instruments form part of the register from when they are lodged and, on that basis, priority is accorded to registered instruments from the date on which they are lodged, under s.178.
This approach does not take into account the history of s.175, and contrary to the approach taken by the Court of Appeal in Beames v Leader, there is authority that the Real Property Acts should not be taken into account in interpreting the Land Title Act. In Equitiloan Securities Pty Ltd v Registrar of Titles [1997] 2QdR 597 at 600, (which was, of course, decided before Beames v Leader), Dowsett J said, in relation to s.15 of the Land Title Act:
“… I can see no reason for bringing the accumulated baggage of the Real Property Act and its analogues in other jurisdictions to the task of construing section 15. The wording is different, and the regime in which the section operates is, in some respects, different. My own view is that section 15(1)(b) should be construed according to its words and given its natural meaning.”
The wording of s.175 is certainly different from s.14 of the Real Property Act 1877 and thus the alternative interpretation may be justified. If so, then the date of subdivision of the land, under the Land Title Act, is the date of registration of the plan, 4 July 2000. As this is the date contended for by the appellant, the appeal would succeed.
I have concluded, however, that the approach of the Court of Appeal to the interpretation of the Land Title Act in Beames v Leader is to be preferred to that of the learned judge in Equitiloan Securities, and therefore, I have decided, as stated above, that the registration of the plan of subdivision operates retrospectively to 30 June 2000, so that the lots were created as separately identifiable parcels on 30 June 2000, for the purposes of the Land Title Act. This conclusion does not mean that the date of registration of the plan is altered by the operation of s.175. The plan was registered on 4 July 2000 and that date remains unchanged.
However, that conclusion does not determine the ultimate issue in this case. That question is, when was the land subdivided within the meaning of s.8 of the Act?
The respondent submits that if it is concluded that the registration of the plan of subdivision was effective from 30 June, then lot 401 was divided into separate lots on that date and that division constituted a partition within the meaning of s.8(2)(a) of the Act. The respondent contends that the word “partition” should be given its ordinary meaning that is “the action of parting or dividing into parts” or “each of the parts into which a whole is divided, as by boundaries or lines; a portion, part, division, section” (Shorter Oxford English Dictionary). The respondent says that the legal definition of “partition” is not relevant in this case and, in any event, partition in that sense falls within the scope of paragraph 2(b) of the definition of “subdivide”.
The appellant submits, in reply, that because the word “partition” has acquired a legal meaning, the appropriate rule of statutory interpretation to apply is that, prima facie, the legislature intended to use the word with that meaning. (Attorney-General (NSW) v Railway Employes Union of New South Wales (1908) 6 CLR 469 at 531; Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475.)
The word “partition” has acquired a legal meaning, which is the “division of land belonging to co-owners and the allotment among them of the parts so as to put an end to community of ownership between some or all of them”. (Butterworths Words and Phrases Legally Defined.) In considering whether that meaning should be attributed to the word “partition” in s.8(2)(a) of the Act, I have applied the decision of Priestly JA in Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Pty Ltd. His Honour said (at 483, 484):
“… but if, as is the case here the words have a range of meanings, then the construction to be given to the words used must take into account the legal as well as the ‘ordinary’ uses to which they have been put. … The object of the approach is not to find the legal as opposed to the ‘ordinary’ meaning, but to find from the range of legal or ordinary meanings, which in any event will seldom be in watertight compartments, the meanings best suited to the statutory document as a whole.”
The word “partition” is used in s.8(2)(a) of the Act which begins with the words “Land may be divided into parts by,” among other ways, partition. If the respondent’s submission as to the meaning of “partition” were adopted the section would read, “Land may be divided into parts by parting or dividing into parts (or similar words)”. This interpretation, in effect, gives no meaning to the word “partition”. In my opinion, therefore, the word partition as used in s.8(2)(a) should be given a more specific meaning, namely its legal meaning as set out above.
I do not accept the respondent’s submission that partition, in its legal sense, falls within the scope of paragraph 2(b) of the definition of “subdivide”. Section 8(2)(b) does cover some circumstances in which partition may occur, but does not do so exhaustively. For example partition may result from a court order under s.38 of the Property Law Act 1974, so that there is room for the word “partition” in s.8(2)(a) of the Act to operate independently, if given its legal meaning.
As the land was not held in co-ownership at any relevant time, there has been no partition in the legal sense of the word. On that basis, none of the events described in s.8 (2)(a) or (b) occurred in this case on 30 June. Therefore there was no subdivision, for the purposes of the Act until the plan was registered, enabling a certificate of title to issue under the Land Title Act for a part of the land, that is until 4 July 2000.
This conclusion means that there is some discrepancy between the Valuation of Land Act and the Land Title Act as to when a subdivision occurs. However, the issue in this case is to identify when the land was subdivided for the purposes of the Valuation of Land Act.
My conclusion is that the effective date of the new valuation should be 4 July 2000, which was the date when the land was subdivided within the meaning of s.8 of the Valuation of Land Act 1944. Therefore the appeals are allowed.
CAC MacDONALD
MEMBER OF THE LAND COURT
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