Australia: Land Court of Queensland found that making a vigorous case is not inconsistent with the duties of a model litigant

Last Updated: 13 June 2018
Article by Ian Wright and Nadia Czachor

In brief

The case of Suncorp Metway Insurance Pty Ltd v Valuer-General (No.3) [2017] QLC 53 concerned an application for costs made by Suncorp Metway Insurance Pty Ltd after its appeal against a valuation under the Land Valuation Act 2010 (LVA) was successful. The Appellant alleged that the Valuer-General's conduct was frivolous or vexatious and that the Valuer-General failed to properly discharge its responsibilities during the course of the appeal. In particular, the Appellant alleged that the Valuer-General's conduct was frivolous because it engaged in conduct that was unmeritorious.

The Appellant appealed to the Court against a valuation by the Valuer-General under the LVA. The Appellant was successful and it applied for an order for costs. The Appellant contended that the Valuer-General relied upon groundless assertions to justify the valuation of the land and by doing so brought serious and unjustifiable trouble to the Appellant and expense to correct the valuation.

The Court found that the Valuer-General's conduct was not frivolous or vexatious or unmeritorious. The Valuer-General was simply found to be unsuccessful. By presenting a vigorous case in defence of the valuation, the Valuer-General's conduct was not inconsistent with the duties of a model litigant. The Valuer-General had not failed to properly discharge its responsibilities during the course of the appeal and as a result the Appellant's application for costs was refused.

The Court found that when using its discretion to make an order for costs, the Court shall not take into consideration circumstances that are not provided for under section 171(2) of the Land Valuation Act 2010

The Valuer-General submitted that the concept of "unmeritorious conduct" is not relevant for the purpose of determining whether costs should be awarded as the Court is not required to take into consideration any circumstance not mentioned in section 171(2) of the LVA. The Valuer-General contended that the Court only has a discretion to make an order for costs if one of the circumstances under section 171(2) of the LVA is enlivened.

The Court agreed and rejected the Appellant's submission that it was entitled to costs because "unmeritorious conduct" is not an applicable consideration under section 171(2) of the LVA.

The Court considered the parties submissions about whether the conduct was frivolous or vexatious

Relying upon the Court's decision in Brisbane Square Pty Ltd v Valuer-General [2015] QLC 40, the Appellant contended that the words "frivolous or vexatious" "should be given their normal meaning". In particular, "a party relying upon groundless assertions and putting parties to serious and unjustifiable trouble can be sufficient".

As such, the Appellant submitted that the Valuer-General's conduct was frivolous or vexatious during the course of the appeal for the following reasons:

  • The Valuer-General 's valuation was originally $39,500,000 and was reduced during the course of the appeal to $34,500,000. The Court found that the valuation should be $13,800,000, which suggested that there was a gross error by the Valuer-General.
  • The Valuer-General valued the wrong thing.
  • The Valuer-General included leases at a late stage in the proceeding and by doing so acted contrary to a model litigant.
  • The Valuer-General's valuation evidence was of poorly analysed or unsuitable sales.
  • The Appellant was put to serious and unjustified trouble and expense to correct the Valuer-General's valuation.

The Valuer-General submitted that the circumstances set out in section 171 of the LVA were not enlivened in this case and as such the Court was not required to exercise its discretion to award costs. The Valuer-General relied on the following reasons in support of its position:

  • The Appellant's real objective was to establish that the land was valueless or had a nominal value, such as one dollar.
  • The Courts routinely accept the evidence of one party and reject evidence from the other.
  • The ultimate valuation of $13,800,000 was far from the zero value or one dollar value contended by the Appellant.
  • The Court found that the value of $13,800,000 would be likely to represent the value at the lower end of the highest and best use of the land.
  • The Court found some usefulness in the Valuer-General's expert's valuation.
  • The Court did not fully adopt the evidence of either valuer.
  • There was no evidence of any additional expense having been incurred as a result of the Valuer-General's conduct.
  • Costs are not punitive.

The Court found that in determining whether conduct is frivolous or vexatious the Court is to have regard to the context of the case as a whole

The Court observed that when deciding what makes legal proceedings vexatious, the relevant test to be applied is that from the decision of O'Shea v Cameron [1996] 2 Qd R 218. In that case it was held that "the broad test potential concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court's practices, procedures and rulings, persistent attempts to use the court's processes to circumvent its decisions or other abuse of process, the wastage of public resources, and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis."

The Court observed that the Valuer-General did not commence the appeal and therefore did not commence action for any improper purpose. The Valuer-General relied on expert evidence to justify its valuation and, although the evidence was unsuccessful, it was of some use.

Looking at the Valuer-General's conduct in the context of the whole case, the Court was not satisfied that the Valuer-General's conduct was frivolous or vexatious or that the Valuer-General failed to properly discharge its responsibilities in the appeal.

For these reasons, the Court found that there was no basis for the Court to exercise its discretion to award costs under section 171(2) of the LVA and rejected the Appellant's submission that there should be an order as to costs.

  • The Court went on to state that it would not have exercised its discretion to award costs in favour of the Appellant for the following reasons:
  • The Appellant originally contended for a nil or nominal valuation yet the Court ultimately found that the appropriate value was $13,800,000.
  • The Appellant did little to assist the Court to arrive at the correct valuation.
  • The conduct of the Valuer-General was directed towards assisting the Court.
  • The conduct of the Valuer-General did not lengthen the proceeding or put the Appellant to additional expense.
  • The Appellant simply presented its case which it prepared from the outset.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Ian Wright
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions