Fitzgerald v Valuer General (No 2) [2011] NSWLEC 1197

Land and Environment Court New South Wales

Medium Neutral Citation: Fitzgerald v Valuer General (No 2) [2011] NSWLEC 1197 Hearing dates: 21 June 2011 Decision date: 21 June 2011 Jurisdiction: Class 3 Before: Moore SC Decision: Witness permitted to give evidence Catchwords: Objection to witness giving evidence Legislation Cited: Valuation of Land Act 1916 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Brian Fitzgerald (Applicant)

Valuer General (Respondent) Representation: Counsel Applicant in person Mr N Broadbent (Respondent) Solicitors Crown Solicitor's Office (Respondent) File Number(s): 30012 of 2011

EXTEMPORE Judgment 1Mr Fitzgerald has objected to Mr Paul Links, a registered valuer without limitations employed by Central Coast Property Services, giving evidence on behalf of the Valuer General in these proceedings. Mr Links' statement of evidence, filed on 27 May, is the only valuation evidence upon which the Valuer General relies in the proceedings. 2The objection that is made by Mr Fitzgerald to Mr Links giving evidence is on the basis that, at a date in the past, which Mr Fitzgerald believed was in 2006 (but which, in Mr Links' evidence on the voir dire, was in about 2000) undertook a valuation on behalf of a financial institution, for mortgage purposes, concerning the property owned by Mr Fitzgerald that is the subject of these proceedings. 3It is the agreed position between Mr Fitzgerald and Mr Links that, after that valuation, Mr Fitzgerald objected to it on the basis that it was too low. It was also Mr Links' evidence that a further valuation, again for mortgage financing purposes, was undertaken by an employee of a valuer's firm of which he was then a principal in 2006, of Mr Fitzgerald's property. It was Mr Links' evidence that, with respect to that latter valuation, he had not taken any part in the valuation process it having been undertaken entirely by his employee. 4The nature of the difference in 2000 between Mr Links and Mr Fitzgerald appears to have been one of a professional disputation concerning the valuation reached by Mr Links not being satisfactory to Mr Fitzgerald for the purposes of a loan application that it was intended to support. In each of the two valuations that have been undertaken in the past of Mr Fitzgerald's property for which Mr Links has had some role (either by conducting the valuation or as a principal of the firm conducting the valuation) this has been for the purposes of lending. 5The responsibility that a valuer has to undertake a statutory valuation pursuant to the Valuation of Land Act 1916 is brought into play by s 6A of that Act and, in fact, poses an entirely different valuation test and standard for the valuer undertaking the process in that it is, effectively for land upon which there are improvements, a statutory requirement that those improvements, except to the extent that they are what are defined land improvements, are disregarded. 6I am satisfied that, because Mr Links had no personal professional engagement by Mr Fitzgerald and because of the affluxion of time since Mr Links was involved personally in the valuation of Mr Fitzgerald's property, when coupled with the statutory obligation for the purposes of valuation contained in s 6A of the Valuation of Land Act 1916 (underpinned in its entirety by the fact that in his statement of evidence that will be admitted subject to any objections that Mr Fitzgerald may have, Mr Links specifically acknowledges and adopts the obligations of an expert witness contained in the relevant schedule to the Uniform Civil Procedure Rules 2005) that I should permit Mr Links to give evidence in the proceedings. That will not, of course, limit the right that Mr Fitzgerald will have to question him on the merits of his valuation in this case in the proper form. Tim Moore Senior Commissioner 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: 15 July 2011