Land and Environment Court New South Wales Medium Neutral Citation: IRM Property Group (No 2) Pty Ltd v Valuer General [2020] NSWLEC 100 Hearing dates: On the papers Date of orders: 17 July 2020 Decision date: 17 July 2020 Jurisdiction: Class 3 Before: Robson J Decision: See orders at [11] Catchwords: APPEALS — Procedure — Leave to appeal — Application for leave to appeal after time for appeal pursuant to s 38 of the Valuation of Land Act 1916 (NSW) has expired — Leave granted Legislation Cited: Valuation of Land Act 1916 (NSW) ss 29, 35C, 38 Cases Cited: Australand Holdings Pty Ltd v Hornsby Council [1998] NSWLEC 128 Fowler v Valuer General [2015] NSWLEC 133 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Jassls Pty Limited v Valuer General [2006] NSWLEC 59 Category: Procedural and other rulings Parties: IRM Property Group (No 2) Pty Ltd (Applicant) Valuer General of New South Wales (Respondent) Representation: Counsel: L Waterson (Applicant) P Rankins, solicitor (Respondent) Solicitors: King & Wood Mallesons (Applicant) Crown Solicitor's Office of New South Wales (Respondent) File Number(s): 2020/00199518 Publication restriction: Nil EX TEMPORE Judgment (REVISED) 1. HIS HONOUR: By notice of motion filed 6 July 2020, IRM Property Group (No 2) Pty Ltd ('IRM') seeks relief pursuant to s 38(2) of the Valuation of Land Act 1916 (NSW) that it be allowed to commence these Class 3 appeal proceedings after the 60 day period for making the appeal prescribed by s 38(1) has expired. 2. The proceedings sought to be commenced are an appeal against the Valuer General's determination to disallow an objection made by IRM in relation to the determined land value of Lot 3 in DP 1145808, known as Lot 3 Archbold Road, Eastern Creek, for the valuation date of 1 July 2018. 3. IRM reads the affidavit of Michael Edward Causer affirmed 6 July 2020. The background facts are uncontroversial. 4. On 13 December 2019, IRM lodged an objection pursuant to s 29(3A) of the Valuation of Land Act 1916 to a land valuation made by the Valuer General in respect of 1 July 2018 base date. On 15 April 2020, a notice of disallowance of the objection was communicated to IRM in accordance with s 35C of the Valuation of Land Act 1916. The proceedings were not commenced until 6 July 2020, being 23 days following the end of the 60-day period for an appeal to be filed within time, prescribed by s 38(1). It is for that reason that leave is sought. 5. The principles relevant to an application pursuant to s 38(2) of the Valuation of Land Act 1916 are well-known. Guidance was originally provided by the High Court in Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 at 480 (per McHugh J) and later in Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 ('Jackamarra'), in particular by Brennan CJ and McHugh J at [7] and Kirby J at [66], and thereafter considered and applied by this Court in Australand Holdings Pty Ltd v Hornsby Council [1998] NSWLEC 128 at [11] (per Lloyd J) and further by Preston CJ of LEC in Jassls Pty Limited v Valuer General [2006] NSWLEC 59 at [29]. More recently, the principles were considered by Craig J in Fowler v Valuer General [2015] NSWLEC 133 at [3]. 6. Having considered the evidence and submissions and the approach adopted in the above authorities, I will now deal swiftly with the matters to which the Court's attention should be addressed in exercising discretion under s 38(2) of the Valuation of Land Act 1916. 7. The length of delay beyond the 60-day period presently involved is 23 days. In the circumstances which I address briefly, I consider that to be not a significant period. The reasons for the delay are set out in the affidavit of Mr Causer and relate to two issues. 8. The first is that there was some misunderstanding on IRM's part resulting from the earlier epistolary intercourse between IRM's representatives and those of the Valuer General in relation to the relevant deadline to lodge an appeal with the Court. The second is that there was delay caused by the expert valuer retained on behalf of IRM, Mr Grant Jackson, who took some time to consider the Valuer General's disallowance of IRM's earlier objection and that delay was caused by Mr Jackson having to conduct his practice in isolation in country Victoria because of COVID-19 pandemic restrictions. Having considered the evidence, including the correspondence between the parties, I consider those reasons to be understandable and I accept them. 9. In relation to whether there is an arguable case on the appeal, and considering what was said by the High Court in the two cases to which I have referred, in particular Jackamarra, I have examined the material attached to the affidavit of Mr Causer styled "Supplementary information and submissions", and have formed the view that IRM has an arguable case. Of course, I express no view in relation to prospects of success. 10. The final matter for consideration by the Court in considering such an application is whether the Valuer General is likely to suffer any prejudice. I note that the Valuer General has not proffered any evidence or submissions as to prejudice and has not actively opposed the application. I consider this is an appropriate exercise of the Valuer General's obligations and I commend the Valuer General in that regard. 11. For those reasons, I am of the view that is appropriate to grant the relief sought by IRM in the notice of motion and I make the following orders: 1. Pursuant to s 38(2) of the Valuation of Land Act 1916 (NSW), IRM Property Group (No 2) Pty Ltd is allowed to make the appeal after the 60-day period for filing the appeal provided in s 38(1) of the Valuation of Land Act 1916 (NSW). 2. The time for filing the appeal is extended to 6 July 2020 and the application in these proceedings made on 6 July 2020 be now treated as having duly instituted the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2020