LAND COURT OF QUEENSLAND
CITATION:	YFG Shopping Centres Pty Ltd as Tte & Anor v Valuer-General; Shayher Alliance Pty Ltd as Tte v Valuer-General [2020] QLC 13	
		
PARTIES:	YFG Shopping Centres Pty Ltd as Tte
ABN 56 853 411 699
(appellant)

Trondage Enterprises Pty Ltd
ABN 92 067 120 370 
(appellant)	
		
	v

Valuer-General
(respondent)
	
FILE NO:	LVA182-17
	
PARTIES:	Shayher Alliance Pty Ltd as Tte
ABN 96 113 268 198
(appellant)	
		
	v

Valuer-General
(respondent)
	
FILE NO:	LVA183-17	
		
DIVISION:	General Division	
		
PROCEEDING:	Application for costs	
		
DELIVERED ON:	31 March 2020	
		
DELIVERED AT:	Brisbane	
		
HEARD ON:

HEARD AT:	Submissions closed 19 March 2020

Heard on the papers	
		
MEMBER:	PG Stilgoe OAM	
		
ORDER:

	The appellants pay the Valuer-General’s costs of and incidental to the general applications filed on 22 September 2017 on the standard basis on the Supreme Court scale as agreed or assessed.
	
CATCHWORDS:	REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – COSTS – where the Court made orders for disclosure – where the Valuer-General notified the agent for the appellants that he considered the appellants’ disclosure inadequate – where the agent for the appellants delivered further documents to the Valuer-General on the afternoon before for the hearing of an application for further disclosure – where s 171(1) of the Land Valuation Act 2010 provides that, as a general rule, parties should bear their own costs in an appeal – whether the exception in s 171(2)(d) of the Land Valuation Act 2010 applies

Land Valuation Act 2010 s 171
Uniform Civil Procedure Rules 1999 r 5, r 444

Chrismel Pty Ltd v Department of Natural Resources and Mines [2005] QLAC 31, cited	
		
APPEARANCES:	Not applicable
	
[1]	On 5 March 2020 I dismissed both these appeals. The parties do not ask for any order for the costs of the hearing but the Valuer-General has asked me to determine the costs of his applications for disclosure filed on 22 September 2017. 
[2]	The chronology of the disclosure dispute is:
1.	18 July 2017: the Court made orders for disclosure.
2.	1 September 2017: the owners delivered lists of documents in compliance with the orders for disclosure.
3.	4 September 2017: the Valuer-General gave notice to the agent for the owners, Savills Valuations Pty Ltd, that he considered the lists of documents incomplete. Savills did not respond. 
4.	7 September 2017: the Valuer-General sent a letter written under r 444 UCPR confirming that he was not satisfied with the extent of disclosure. 
5.	8 September 2017: Savills delivered documents from its initial list, but otherwise did not respond to the Valuer-General. 
6.	19 September 2017: Savills asked the Valuer-General to confirm its request for further disclosure. The Valuer-General advised that his position was as stated in the r 444 letter.
7.	22 September 2017: the Valuer-General filed his general applications with supporting affidavits. The application was set down for hearing on 29 September 2017.
8.	28 September 2017: Savills delivered a supplementary list, identifying further documents as “Fielder Gillespie” documents and advised that the documents were available subject to Fielder Gillespie undertakings. 
9.	29 September 2017: the application was adjourned to enable the Valuer-General to consider whether disclosure was complete.
10.	13 October 2017: the Court made consent orders.
[3]	The Valuer-General submits that the owners should pay his costs of the applications. 
[4]	The Valuer-General concedes that the starting point for costs in valuation appeals is that each party should bear its own costs. That general position is subject to the Court’s power to make a costs order if a party has incurred costs because the other party did not comply with the Court’s procedural requirements.
[5]	The Valuer-General submits that the owners did not comply with the orders for disclosure because the lists initially delivered were deficient. He says that this non-compliance, together with the owners’ failure to respond to the r 444 letter until faced with a hearing of the general applications, amounts to unmeritorious conduct that justifies an order for costs.
[6]	The Valuer-General submits that unmeritorious conduct is the common thread that runs through s 171(2) LVA. He points to Chrismel Pty Ltd v Department of Natural Resources and Mines, where the Land Appeal Court observed that analogous costs provisions in the Water Act 2000 evinced a legislative intent to allow the Court to compensate a party disadvantaged by the unmeritorious conduct of another. He says that unmeritorious conduct includes contravening the implied undertakings imposed on parties by r 5 of the UCPR, which apply to valuation appeals by virtue of r 4 of the Land Court Rules 2000. The Valuer-General argues that, by failing to comply with clear orders for disclosure until the afternoon before the hearing of the general applications, the appellants acted inconsistently with r 5 of the UCPR and contrary to the Court’s procedural requirements, both of which support a costs order under 
s 171(2)(d) LVA.
[7]	Savills submits that, at most, the owners should pay only the costs of the application and supporting affidavits. It says that it delivered the supplementary documents to the Valuer-General at 2.37 pm and 2.42 pm on the afternoon before the hearing of the general applications, together with an offer to pay the costs of preparing the applications and supporting material on a standard basis. Savills says that this gave the Valuer-General sufficient time to consider the additional disclosure and avoid the need for an attendance at the hearing.
[8]	Savills submits that the Valuer-General has responsibilities as a model litigant which requires him to adhere to the principles of fairness including “endeavouring to avoid, prevent and limit the scope of legal proceedings, where possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate.” Savills submits that, by failing to accept its offer and adjourn the hearing without the need for an appearance, the Valuer-General failed to limit the scope of legal proceedings and failed to meet his responsibilities as the model litigant.
[9]	The Valuer-General’s duty as a model litigant must be measured against a party’s responsibility to understand and comply with the duty of disclosure. The owners’ response affidavit did not tell the Valuer-General anything about the enquiries the owners had made to ensure that disclosure was complete. The correspondence from Savills referred to documents that might be relevant but were not contained within the supplementary list. It was, in all respects, an unsatisfactory response to the r 444 letter. An offer made the afternoon before a hearing, when there has been delay and clear notice of the deficiencies in disclosure, and no opportunity for the Valuer-General to consider the further disclosure does not warrant an exercise of discretion in Savills’ favour.
[10]	The owners’ counsel submitted that an affidavit of this sort is ordinarily provided by a solicitor deposing to certain issues as to the relevance or otherwise of disclosure, whereas this affidavit was prepared by an agent, not a solicitor. 
[11]	As I remarked at the time, Savills’ agent is a frequent visitor to this Court and it is no defence for him to say “I’m not a lawyer; I don’t know what I’m doing”. If Savills’ agent does not understand Court procedures and the obligations imposed by the rules of disclosure then, perhaps, he should not be appearing in complex litigation for obviously well-resourced parties when a lawyer might do a better job.
[12]	In the circumstances, the owners should pay the Valuer-General’s costs of and incidental to the general applications on the standard basis on the Supreme Court scale as agreed or assessed.
Order
The appellants pay the Valuer-General’s costs of and incidental to the general applications filed on 22 September 2017 on the standard basis on the Supreme Court scale as agreed or assessed.

PG STILGOE OAM
MEMBER OF THE LAND COURT