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Three wrongs don’t make a right: Court

A “classic example of an old proverb” was presented in the Land Court in Brisbane on Wednesday.

Land Court Acting President Stilgoe presided over an application which followed the issuing of a land valuation notice in error, then an objection and appeal by a party not entitled to object or appeal.

Acting President Stilgoe considered the application by the Valuer-General to direct the State Government (represented by the Department of Housing and Public Works) to amend its notice of appeal against the decision on objection.

She dismissed both the application and the appeal, calling the case a “classic example of the old proverb that two wrongs (or in this case three) don’t make a right”.

The matter involved HSH Hotels (Australia) (HSH), which leases State Government land, via the Department, at the site of the Stamford Plaza hotel in the Brisbane CBD.

In March 2022, the Valuer-General issued a state land rental valuation notice in the name of the Department. HSH lodged an objection notice, with the consent of the Department, against the valuation, and eventually an appeal against the decision on objection.

Under Section 79(1) of the Land Valuation Act 2010 (Qld) (LVA) the Valuer-General must issue the annual notice to the land owner. The definition of “owner” excludes the State Government but includes a lessee of State Government-owned land.

“The Valuer-General erred in issuing a notice to the Department, which is not an owner, and failing to issue a notice to HSH, which is an owner,” Acting President Stilgoe said.

“An owner may object to a valuation of the owner’s land. HSH did object but using the name of the Department and specifically referring to the consent of the Department.

“There is no provision in the LVA permitting an owner to consent to the objection rights being exercised by third party. The Department had no right to object, given it was not an owner. That means that the objection was invalid. As an owner, HSH had its own right to object and should have done so in its own name.

“An objector may appeal to the Court against an objection decision.  Because HSH objected in the name of the Department and not in its own name, it was not an objector. Therefore, it could not appeal.”

Acting President Stilgoe assessed three potential remedies suggested by the Valuer-General: under s 165 of the LVA, or under rule 375(3) or rule 69 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

She said “even the most liberal interpretation” of s 165 of the LVA – which relates to a defective valuation appeal notice – would “not cure the fundamental errors perpetrated so far”.

“The valuation appeal notice is more than defective, it is fatally flawed. It names a party that has no right to object and, therefore, no right to appeal,” she said.

Acting President Stilgoe said rule 375(3) of the UCPR – which deals with amending a misnomer of a party in a court document – also could not apply because HSH was not the objector, and therefore could not be the appellant.

Because HSH was not an objector, rule 69 of the UCPR ­– which allows a judge the discretion to remove a party and include another – also could not apply, she said.

“The notice of valuation was issued in error to the Department. HSH mistakenly objected in the name of the Department. The Registrar failed to requisition the notice of appeal. None of this can be cured by a mere substitution,” she said.

In dismissing both the application and the appeal, Acting President Stilgoe suggested it would be “prudent” for the Valuer-General to issue a valuation in the name of HSH, the correct owner of the land under the LVA.

She ordered any costs submissions be filed within 14 days.

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