Roggiero v Valuer General (No 2) [2008] NSWLEC 1400

Land and Environment Court of New South Wales

CITATION : Roggiero v Valuer General (No 2) [2008] NSWLEC 1400

APPLICANT David Roggiero PARTIES : RESPONDENT Valuer General

FILE NUMBER(S) : 30957 of 2007

CORAM: Moore C

KEY ISSUES: Valuation of Land :- Objection to statutory valuation

LEGISLATION CITED: Valuation of Land Act 1916

Brigenshaw v Brigenshaw (1938) 60 CLR 336 CASES CITED: Roggiero v Valuer General (2008) 159 LGERA 411; [2008] NSWLEC 170 Flack v Valuer General 1952 18 LGR 157 Maurici v Chief Commissioner of State Revenue [2003] HCA 8; 212 CLR 111; 195 ALR 236; 77 ALJR 727

DATES OF HEARING: 26 August 2008

EX TEMPORE JUDGMENT DATE : 26 August 2008

APPLICANT In person

LEGAL REPRESENTATIVES: RESPONDENT Ms M Carpenter, barrister INSTRUCTED BY Crown Solicitor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Moore C

26 August 2008

30957 of 2007 David Roggiero v Valuer General

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER : S 37 of the Valuation of Land Act 1916 provides that a person may object to a valuation of land made by the Valuer General and, having been dissatisfied with the Valuer General's determination of such objection, may appeal to this Court against the failure of the Valuer General to sustain the objection. 2 S 39 of the Act makes it clear that the parties to that appeal are not limited to dealing with merely the grounds of objection to the original valuation. 3 S 40 of the Act sets out two critical provisions. The first, in s 40(1), sets out the powers that this Court has when dealing with the appeal. Second, it also sets out, in s 40(2), quite expressly that the appellant in such an appeal bears the burden of proof of establishing their case. That burden of proof is a civil one and is to be discharged, as the High Court says in Brigenshaw v Brigenshaw (1938) 60 CLR 336 , with the degree of comfortable satisfaction necessary for the nature of the appeal being dealt with. 4 In these proceedings, the matter had originally come before an Acting Commissioner of the Court who had given a decision upholding the appeal and giving a lower valuation than that for which the Valuer General had originally contended and now contends in these proceedings. In the subsequent appeal pursuant to s 56A of the Land and Environment Court Act 1979, that decision was set aside for reasons that do not need to detain me. The matter was remitted by Sheahan J for a fresh hearing by a different Commissioner (see Roggiero v Valuer General (2008) 159 LGERA 411; [2008] NSWLEC 170) . 5 As a consequence, I have come, today, to deal with Mr Roggiero's objections to the valuation, as at base date 1 July 2006, for his property which is located at 18 Collaroy Street, Collaroy. 6 It is convenient, at the commencement of dealing with matters of detail, to set out a little about the site. His property is located on the southern side of the street. It has an area of 404.7 sq m and a brick dwelling some 45 or so years old is erected upon it. 7 Although not strictly complying with the timetables for the provision of evidence (but accepting that, except to an extremely limited extent, the basic factual material and opinions have been provided to the applicant during the earlier proceedings and therefore the applicant was not prejudiced), an expert witness statement by Mr Shields, a qualified and experienced valuer, has been tendered on behalf of the Valuer General. 8 During the course of this morning's site inspection, I also inspected, with the applicant and the representatives of the respondent, not only Mr Roggiero's home but also nine other locations that were relied upon by the Valuer General and which had been discussed, as comparable sales, in Mr Shields' statement of evidence. 9 In the course of Mr Shields' oral evidence this afternoon, he has accepted that sales 6 to 9 inclusive, in his statement, are outside what might be regarded as the comparable catchment and he no longer relies upon those sales. However, there are four other sales in the same street, that is, Collaroy Street, and one sale in Alexander Street (being a property that backs onto properties fronting the southern side of Collaroy Street) that are relied upon by the respondent. 10 Mr Roggiero has provided an informal statement of evidence in which he deals with a number of matters, including the fact that a number of adjacent allotments of differing land area have had the same statutory valuation applied to them. 11 It is clear that I am bound by the decision given in the Land and Valuation Court by Sugerman J in Flack v Valuer General 1952 18 LGR 157, particularly at p 158, where his Honour said that: "As a general principle when dealing with a specific site the appropriate approach to take is to undertake one of the more conventional and accepted methods of valuation",