NSW Golf Club Ltd v Valuer General [2007] NSWLEC 322

Land and Environment Court of New South Wales

CITATION : NSW Golf Club Ltd v Valuer General [2007] NSWLEC 322

APPLICANT NSW Golf Club Ltd PARTIES : RESPONDENT Valuer General

FILE NUMBER(S) : 31264 of 2004

CORAM: Talbot J

KEY ISSUES: Costs :- Valuation appeal - principles to be applied.

Crown Lands Act 1989 s34; LEGISLATION CITED: Land and Envirornment Court Act 1979 s 69 Land and Environment Court Rules Part 16 Rule 4; Valuation of Land Act 1916 s 6A(1), s 14I.

CASES CITED: Latoudis v Casey (1990) 170 CLR 534

DATES OF HEARING: 31/05/2007

DATE OF JUDGMENT: 6 June 2007

APPLICANT P McEwen SC SOLICITORS Bicknell & Monteith LEGAL REPRESENTATIVES:

RESPONDENT A Pickles (Barrister) SOLICITORS Crown Solicitors Office

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

6 June 2007

31264 of 2004 NSW Golf Club Limited v Valuer General

JUDGMENT 1 Talbot J: These proceedings were by way of an objection against a land value determined by the Valuer General as at 1 July 2003. The applicant seeks an order for costs. 2 The land value has particular significance for the applicant as lessee of the subject land pursuant to s 34 Crown Lands Act 1989. The appeal proceeded on the basis that the correct valuation exercise is to ascertain land value pursuant to both s 6A(1) and s 14I of the Valuation of Land Act 1916. 3 As at 1 July 2003 the Valuer General assessed the land value of the subject land as $3,750,000. Prior to the commencement of the hearing Mr Hallias, valuer, contended on behalf of the Valuer General for a land value figure of $5,900,000. Ultimately that figure was reduced to $4,650,000. However, in the event that the Court supported the valuation by Mr Hallias, the Valuer General conceded that the value of $3,750,000 in the Notice of Valuation as at 1 July 2003, could be maintained. 4 In earlier proceedings this Court adopted a valuation on behalf of the applicant made by the late Frank Egan in the sum of $2,236,000 as at 1 July 1993. Although Mr Egan had died in the meantime, his further valuation prepared as at I July 2003 in the sum of $2,400,000 was in evidence. The applicant relied on registered valuer Terry Dundas who contended for a primary figure of $400,000, based on the capitalisation of rent method. Alternatively, Mr Dundas argued that a figure of $1,250,000 could be derived from a sale of land at Pitt Town to Kellyville Golf Club. 5 I determined the value at 1 July 2003 as $2.5 million, some 33 percent below that contended for by the Valuer General and consistent only with the valuation by Mr Egan. The value determined by the Court was 525 percent above the primary figure adopted by Mr Dundas and 100 percent greater than the secondary figure adopted by him based upon the Pitt Town sale. 6 In the course of my judgment delivered 2 February 2007, I accepted the opinion of Mr Hallias that the rate of return from land held by a not-for-profit organisation could be in the order of 2 percent. When this capitalisation rate is applied to the range of current rents for golf courses between $40,000 and $50,000, the land value figure of $2, 500,000 can be confirmed. The opinion of Mr Dundas was rejected in all relevant respects. 7 However, notwithstanding who may be regarded as the winning or losing party, success is not necessarily the determinative measure for making a costs order in this category of class three proceedings. Part 16 Rule 4(2) is in the following terms and applies: - Costs in certain proceedings …. (2) No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable.