In Cost Pty Ltd v Valuer-General; Denbeach Pty Ltd v Valuer-General; Allen v Valuer-General [2025] QLC 2 , the court ruled that the expert valuer was not acting impartially when he took the role of both an advocate and an expert in the same matter. This was despite a six-month break between his work as an advocate and an expert.
Background
The proceeding involves appeals against objection decisions on valuation under the Land Valuation Act 2010 (Qld). The appellants in this case own industrial properties in and around Gladstone.
Expert evidence
Appellants engaged Mr MS, a valuer with more than 50 years of experience, to give evidence, seeking to discharge the onus of proof in their land valuation appeal. Respondent, the Valuer-General, engaged Mr RF, also an expert valuer.
Mr MS previously acted as the appellants' agent in lodging notices of objection and in filing the notices of appeal. He also attended two preliminary conferences to assist the appellants. He candidly admitted that he had not read the Rules of Professional Conduct. When questioned about his role, Mr MS stated that he just filled out the appeal form.
The court held that these acts are evidence of manifest partiality on the part of Mr MS. [7] Because the notices of appeal consist of comprehensive submissions of comparable sales analyses by Mr MS, the court said that the documents are not the result of "just" filling out the appeal form. [9]
The appellants contended that Mr MS' role as an advocate had ceased before the proceedings commenced and that there was a six-month break between his work as an advocate and his work as an expert. The court went on to cite the Australian Property Institute's Rules of Professional Conduct prohibiting acting as an advocate and an expert in the same matter, regardless of a hiatus in between the events.
The court cited Rule 20(3)(a) of the Land Court Rules 2022 (Qld), which states that an expert must be independent and impartial. This was reinforced in the Code of Conduct and the Australian Property Institute's Rules of Professional Conduct, which require expert valuers to maintain the strictest independence and impartiality when providing professional services. A registered valuer must not act as an advocate and an expert in the same matter, and must also not act in a way that is inconsistent with displaying independence and impartiality.
The court also rejected Mr MS' evidence due to numerous inconsistencies and flaws in his methodology. He analysed the value of minor improvements in comparable sales based on construction costs, which rarely reflect their actual value, and failed to provide source material or objective evidence to justify his costs. Mr MS relied on conversations with purchasers without providing details, and did not comply with Practice Direction 6 of 2020, despite certifying that he did. He also rejected certain comparable sales without sufficient evidence, analysed sales in an unconventional manner, and excluded relevant sales, including a sale in 2022 which was higher-priced. The court found his demeanour and responses to be material factors in determining that he was not sufficiently independent, ultimately leading to the rejection of his evidence in its entirety. [21]
Meanwhile, the court gave credence to the evidence presented by the Valuer General's expert valuer, Mr RF. The counsel for the Valuer General submitted to the court that Mr RF had not previously adopted the role of an advocate on behalf of the Valuer-General or acted in a role other than as an expert. In the same vein he demonstrated his independence and impartiality in that the valuations he made were lower than those previously reached by the Valuer General, which were initially appealed against. The court was satisfied that Mr RF was indeed independent and impartial.
Ultimately, since the court could not accept Mr MS' evidence, the appellants have not properly discharged the onus of proof in the land valuation appeal. As a result, the appeals were dismissed.
Key takeaways
- Experts, including registered valuers, must not act as an advocate and an expert in the same matter, even if there is a hiatus in between.
- Experts must not act in any way inconsistent with displaying independence and impartiality.
- The primary role of an expert is to help the court understand
matters that are within their expertise and not act as an advocate
for one party. The expert's duties to the court override any
obligation the expert may have to any party to the proceedings or
any person responsible for the expert's fees.
Read the full decision here.
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