A recent land valuation appeal has highlighted the need for advocates and experts to be thoroughly familiar with the legislative framework relevant to the decision under review.
The decision in BRD Group Pty Ltd v Melton SC [2015] VCAT 13 is of interest because of the Victorian Civil and Administrative Tribunal's comments in relation to the way in which both parties presented their cases in a rates notice appeal.
The application was made under the Valuation of Land Act 1960 (Vic) for a review of a decision of a valuer upon an objection to a valuation decision upon which a Council rates notice was based. The Council's initial valuation was that the site value was $26,441,000, had a capital improved value of $26,613,000 and a net annual value of $1,330,650. The applicant contended that the land had a site value of $14,800,000, a capital improved value of $15,000,000 and a net annual value of $750,000. At the hearing, the Council contended that the site value was $23,002,000, had a capital improved value of $23,174,000 and a net annual value of $1,158,700.
Despite the significant sums of money involved, the applicant did not call a valuer to present evidence. Instead it relied upon valuation reports, in draft form, prepared by Knight Frank that had been prepared not for the purposes of the hearing but in contemplation of a potential forced mortgagee sale of the land.
The Tribunal gave limited weight to those valuations on the basis that they were not prepared for the purposes of the case and they were not prepared in accordance with the Valuation of Land Act 1960, which specifically provides that valuations under the Valuation of Land Act 1960 for rating purposes must generally be based upon site value, capital improved value and net annual value. The Tribunal observed that these statutory definitions needed to be at the forefront of the submissions and expert reports relied upon at a ratings review. The Tribunal also observed that steps required under its pre-hearing directions, and required under the Tribunal's practice note for expert evidence, had not been undertaken or complied with. Whilst the Council at least called a valuer to give evidence at the hearing, that valuer also made no reference in his report to site value, capital improved value or net annual value. Despite these shortcomings, the Tribunal still preferred the Council's evidence to that of the applicant and upheld the Council's decision.
The case highlights the need for advocates and experts to be thoroughly familiar with the legislative framework relevant to the decision under review. Instructing solicitors need to carefully consider the questions that need to be put to an expert in litigation so as to address the elements necessary to successfully make out a claim.
Parties also need to be familiar with practice directions and comply with orders and directions given at the prehearing stage so as to prepare the case properly for hearing. Compliance with the procedures, particularly with the introduction of new practice procedures in March 2015, is a significant focus of the Tribunal. Adverse costs consequences may follow default in compliance and parties may be prevented from filing evidence where the default is significant and without a satisfactory explanation (the realms of which have significantly narrowed as a result of the new procedures).
BRD Group Pty Ltd v Melton SC [2015] VCAT 13
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