Land and Environment Court New South Wales Medium Neutral Citation: Ware Street Investments Pty Limited v Valuer-General [2015] NSWLEC 73 Hearing dates: 6 May 2015 Date of orders: 06 May 2015 Decision date: 06 May 2015 Jurisdiction: Class 3 Before: Biscoe J Decision: (1) Pursuant to s 38(2) of the Valuation of Land Act 1916, the applicant is allowed to appeal after the 60 day period for making the appeal prescribed by s 38(1). (2) The time for filing an appeal be extended to 5 March 2015 and the Application Class 3 filed on 5 March 2015 be now treated as having duly instituted the appeal. (3) The matter will be listed before the List Judge for directions on 8 May 2015. Catchwords: VALUATION OF LAND – motions under s 38(2) of the Valuation of Land Act 1916 in three matters that the applicant be allowed to appeal after the 60 day period for making the appeal provided in s 38(1) –considerations. Legislation Cited: Land and Environment Court Act 1979 s 56A Valuation of Land Act 1916 s 38 Cases Cited: Fitzpatrick Investments Pty Ltd v Valuer General of New South Wales [2010] NSWLEC 188 Jassls Pty Limited v Valuer General [2006] NSWLEC 59 Laresu Pty Limited v Valuer-General [2012] NSWLEC 213 Mir v Valuer General [2010] NSWLEC 201 Weschler v Sydney City Council [2014] NSWLEC 201 Category: Procedural and other rulings Parties: Ware Street Investments Pty Limited (Applicant) Valuer-General (Respondent) Representation: COUNSEL: S Nash (Applicant) S Gordon, solicitor (Respondent) SOLICITORS: Bud Cham & Associates (Applicant) Acting Crown Solicitor for NSW (Respondent) File Number(s): 30188/15, 30189/15, 30190/15 EX TEMPORE Judgment 1. By notice of motion filed on 1 May 2015 in each of these three matters, the applicant applied pursuant to s 38(2) of the Valuation of Land Act 1916 for an order that it be allowed to appeal the Valuer-General's determination of the applicant's objection to the assessment of the land value of property situated at 82-86 Ware Street, Fairfield after the 60 day period for an appeal prescribed by s 38(1). The determinations are in respect of the 1 July 2011, 1 July 2012 and 1 July 2013 base dates. The Valuer-General neither opposes nor consents to the motions. 2. As the determination in each case was made on 28 October 2014, an appeal to the Land and Environment Court was required to be commenced on or before 27 December 2014: s 38(1). The appeals were filed on 5 March 2015, 68 days out of time. 3. Under s 38(2), the Court may allow a person to appeal after the 60 day period. Generally, the considerations on an application under s 38(2) are the length of delay, the reason for delay, the extent of prejudice and whether there is an arguable case: Jassls Pty Limited v Valuer General [2006] NSWLEC 59 at [29]-[37] per Preston CJ; followed in Joseph v Valuer General [2010] NSWLEC 96 at [9] per Craig J; Fitzpatrick Investments Pty Ltd v Valuer General of New South Wales [2010] NSWLEC 188 per Biscoe J; Mir v Valuer General [2010] NSWLEC 201 per Biscoe J; and Laresu Pty Limited v Valuer-General [2012] NSWLEC 213 per Pain J. They are the same considerations as generally arise in applications for extensions of time to appeal in other contexts. For example, in an application to extend time to appeal from the decision of a Commissioner under s 56A of the Land and Environment Court Act 1979: Weschler v Sydney City Council [2014] NSWLEC 201 at [10] per Craig J. 4. In the present case the length of the delay was 68 days. That is not a gross delay. In Jassls, the delay was 45 days and the Court considered that such a period was not excessive: at [30]. In Joseph, the delay was 1,259 days, and the Court nonetheless made an order in the applicant's favour under s 38(2) having regard to the reasons for the delay. 5. The applicant has given the following reasons for the delay: 1. The applicant's representative, Mr Abdul Antar, was overseas when the Valuer-General's determination was made, having left Australia on 12 September 2014, and he did not return to Australia until 16 January 2015. 2. Mr Antar, with the help of his sister, Ms Obeida Antar, made efforts to commence the appeal before what they thought to be the "cut off date" for commencing an appeal. However, the appeal documentation sent to the Court slightly late on or about 29 December 2014 was rejected by the Court registry as it did not attach certain prescribed documents: see the Court's letter dated 2 January 2015. It may be noted that 25 and 26 December 2014 were public holidays, and 27 and 28 December 2014 were a Saturday and Sunday. 3. Due to the time of year, being the vacation period, the office of the applicant's solicitor's office was closed until 21 January 2015. It appears that the applicant's solicitor received a retainer in these matters some time between 21 January and 4 February 2015. 4. The solicitor erroneously made a request for an extension of time to commence the appeal to the Land & Property Information Office by letter dated 4 February 2015. By letter dated 18 February 2015, the Land & Property Information Office advised that the request for an extension of the time to commence the appeal was required to be made to the Land and Environment Court. The Land & Property Information Office supplied copies of the missing documentation that had been referenced in the Land and Environment Court's letter dated 2 January 2015. 5. As a result, the appeal was finally purportedly commenced on 5 March 2015 by filing the originating process with the appropriate supporting documentation. 1. There is no prejudice to the Valuer-General. The Valuer-General has no proprietary interest in the outcome of the exercise of the valuation determination powers or of the determination of any appeal to this Court: Jassls at [35]. 2. The applicant has an arguable case according to a valuation report prepared by Mr Niall Moore. For the purposes of these motions, it is inappropriate to determine the correctness of his valuation, and it is sufficient to note that there appears to have been a reasonably careful consideration on the face of the report and that his valuation is substantially lower than that of the Valuer-General: Jassls at [37]. 3. In the circumstances, I am persuaded that the motions should be granted. 4. In each matter the orders of the Court are as follows: 1. Pursuant to s 38(2) of the Valuation of Land Act 1916, the applicant is allowed to appeal after the 60 day period for making the appeal prescribed by s 38(1). 2. The time for filing an appeal be extended to 5 March 2015 and the Application Class 3 filed on 5 March 2015 be now treated as having duly instituted the appeal. 3. The matter will be listed before the List Judge for directions on 8 May 2015. ********** 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: 07 May 2015