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Atlas Corporation v Valuer General [2001] PGNC 107; N2107 (20 June 2001)

N2107

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APPEAL 61 OF 1998

ATLAS CORPORATION

(in voluntary liquidation)

Appellant

-v-

VALUER GENERAL

Respondent

WAIGANI: SALIKA, J

12 & 20 June, 2001

CIVIL PRACTICE AND PROCEDURE – Section 77 of the Valuation Act Chapter 327

VALUATION OF PROPERTY BY VALUER GENERAL – Appeal against the valuation – Valuation too high.

Counsel:
Mr W Frizell for the Appellant
No appearance for the Respondent

20 June, 2001

This matter comes to the National Court by way of an appeal pursuant to s.77 of the Valuation Act Chapter 327.

The facts of the case are as contained in the affidavit of Mathew Trnka filed on the 2nd March 1999. The appellant is the registered lessee from the State of Allotment 1 Section 338 Hohola being the land comprised in the Register of State Leases at volume 19 Folio 231. The appellant was also the lessee from the State of Land known as Allotment 27 Section 338 Hohola being the Land comprised in the Register of Land Leases at Volume 19 Folio 230. The appellant sold Allotment 27 to Lae Biscuit Company under a contract dated 18 October 1997. That sale settled in about January 1998.

Prior to 14 October 1997 both Allotment 1 and Allotment 27 were comprised in the same title namely volume 39 folio 9618. The original title related to Allotments 1,2,3,4,5,6 and 7 in Section 338 Hohola. Allotment 1 in the original title is the same as Allotment 1 in the subsequent one. The part of the original title referred to as Allotments 2 – 7 is now together comprised in Allotment 27.

By letter dated 29th December 1994, the Department of Lands and Physical Planning, Southern Region informed the appellant that the unimproved value of the Land comprised in the original title was K128,500 and that the new annual lease rental, assessed on the basis of 5% of the unimproved value of the land would be K6,425 per annum. From 1st January 1995 the rent payable in respect of the land comprised in the original title was thus K6,425 per annum. The original titles covered allotments 1-7 in s.338. Allotment 1 comprises .1749 hectares – Each of allotments 2 to 6. Comprises .1799 hectares while Allotment 7 comprises 2.093 hectares.

In or about October 1997 at the application of the appellant, the land comprised in the original title was subdivided into two separate titles namely Allotment 1 and Allotment 27. Allotment 1 comprises the same area .1749 hectares while allotment 27 comprises 1.11 hectares.

The area of Allotment 1 is 15.7% the area of Allotment 27. By notice of valuation effective 3rd December 1997 the Valuer General produced a Notice of Valuation of Allotment 1, according it an unimproved value of K78,700. In relation to Allotment 27 the Valuer General placed an unimproved value of K90,300.

The appellant contends that despite allotments 1 and 27 being adjacent, in the same neighbourhood, of the same topography and the same zoning, the unimproved land value assessed by the Valuer General of Allotment 1 represents K45 per square meter whereas the unimproved value he gave to Allotment 27 represents K8.14 per square meter. When both allotments 1 and 27 were consolidated in the original title, the unimproved value of the land was assessed by the Valuer General as at 30th December 1994 at K128,500 or K10 per square meter. The appellant objected to this valuation to the Valuer General pursuant to Sections 67 and 68 of the Valuation Act. The point of objection to the valuation was that the assessment of the unimproved value of the property was too high. The Valuer General considered the appellants objection and rejected them. It is from that rejection that the appellant comes to the National Court pursuant to s.77 of the Valuation Act. The appellant’s ground of appeal to the court is that the assessment by the Valuer General of the unimproved value of Allotment 1 Section 338 Hohola is too high. This is a ground which an aggrieved party may rely on in its appeal either to the District Court or to the National Court. This is allowed by Section 73 and Section 77 of the Valuation Act.

I am satisfied that this Court has the jurisdiction to deal with the matter pursuant to s.77 of the Valuation Act. Section 77 of the Act says:-

"Where the amount of the valuation the subject of an objection under this subdivision exceeds, in the case of an assessment of

(a) an unimproved value – K50,000, or

(b) any other value – K10,000

the appeal from the decision of the Valuer General lies to the National Court and the provisions of this subdivision, with the necessary modifications, apply to and in relation to that appeal".

In this case the valuation appealed from the decision of the Valuer General exceeds K50,000 and so the appeal comes to the National Court.

The Respondent in this matter made no appearance, although service of the trial date had been effected on the Solicitor General’s office. The matter proceeded without the respondent after I was satisfied that the Solicitor General had been served notice of the trial date.

The appellant in this matter relied on the affidavits of Mathew Trnka and Leo Digori. I have alluded to Trnka’s affidavit already which lays the factual basis of the matter. The affidavit of Leo Digori sworn on the 2nd March, 1999 says that he is a Registered Valuer with the Papua New Guinea Valuer Board. He carried out a valuation in respect of the unimproved value of allotment 1 section 338 Hohola. He assessed the unimproved value of Allotment 1 Section 338 Hohola at K12,200. He came to that assessment after physical inspection of the land and also after considering comparative valuation by the Valuer General in respect to some properties within the Gerehu area, where Allotment 1 Section 338 is located. His affidavit with the accompanying valuation report were read into evidence.

The State has not come to Court to contest this valuation. I am thus left with the assessment by Leo Digori. I consider Leo Digori’s assessment as fair and reasonable. I also consider his commentary useful in coming to his assessment. In the circumstances I find that the fair unimproved value of Allotment 1 Section 338 Hohola is K12,243 representing K7-00 per square meter.

Accordingly, the appeal is allowed in that the Valuer General’s assessment of unimproved value of Allotment 1 Section 338 Hohola of K78,700 is quashed and is now substituted with K12,243 as the unimproved value of the stated property.

I further order costs against the respondent in relation to this appeal.
___________________________________________________________________
Lawyer for the Appellant: Warner Shand Lawyers.