THE CORPORATION OF THE MUNICIPALITY OF ALICE SPRINGS v SURFERS PARADISE NOMINEES & THE DESERT SPRINGS COUNTRY CLUB ESTATE PTY LTD
In the Supreme court of the Northern Territory of Australia Martin J.
18 & 19 March 1991 in Alice Springs, 27 June 1991 in Darwin

ESTOPPEL - no representation - solicitor acting for vendor and purchaser - solicitor aware that enquiry at Council re rates not conclusive - solicitor taken to know of special category of particular lot - Local Government Act (repealed) SS.	175B, 185, 189
RATES & RATING - Subdivision development scheme - lease - no covenant requiring subdivision - statute exempts rates payment where obliged to subdivide but not yet subdivided - liable from commencement of lease - Crown Lands Act ss. 18, 23E
RATES & RATING - Defects - notices not comply with Act - whether failure to specify proper levy, type of each of rates levied, basis of assessment fatal - question of statutory construction - Local Government Act (repealed) ss. 149,153, 155(1)(2)&(3), 156, 156(1)(b), 157(2), 158,
167, 168, 178, 189, 417 - Local Government Act (1986)
SS.	103, 111, 111(1), 112, 119, 120, 120(1)&(5), 121,
121(2), 125, 150, 151, 346 Local Government {Accounting}
Regulations r. 34(4), 35 Interpretation Act ss. 12, 18

RATES & RATING - Defects - failure to pubiish in time or in prescribed form not fatal - rate notice issued before publication of declaration not fatal - no statutory time limit as to levying rates under former Act - no absolute limitation under new Act.
Cases referred to:
Knight v Municipal District of Rockdale (1899) 20 NSWR 32
Van Reesema v Official Receiver (1983) 50 ALR 253

Counsel for the plaintiff Solicitors for the plaintiff

Counsel for the defendant Solicitors for the defendant

A Wyvill
Martin & Partners

J Reeves McBride & Doman

"'

mar910017
Local Distribution

mar910017
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 40 of 1987

BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF ALICE SPRINGS
Plaintiff

AND:

SURFERS PARADISE NOMINEES PTY LTD
Defendant
AND:

DESERT SPRINGS COUNTRY CLUB ESTATE PTY LTD
Third Party

CORAM:	MARTIN J.

REASONS FOR JUDGMENT
(Delivered 27 June 1991)

Background

The plaintiff seeks a declaration that it has lawfully levied rates and charges on the defendant as the owner of Lot 5787 Town of Alice Springs for:

The period commencing 27 March 1983 to

,

30 June 1983 in the sum of $1,025.28.

(ii)	The	financial year commencing	1	July	1983	in	
	the	sum of $3,444.00.					

(iii)	
The	
financial year commencing	
1	
July	
1984	
in	
	the	sum of $3,616.20.					

(iv)	
The the	
financial year commencing sum of $3,724.	
1	
July	
1985	
in	

(v)	
The	
financial year commencing	
1	
July	
1986	
in	

the sum of $7,678.

The defendant says that at all material times prior to 8 _September 1986'the land was leased from the Northern Territory of Australia in circumstances which made it exempt from rates pursuant to s. 23E of the Crown Lands Act; it takes a number of objections to the claims in each year based upon alleged failures of the plaintiff to comply with provisions of the relevant Local Government legislation in relation to the making and levying of rates, and raises a plea in estoppel.

Was the land exempt from rates?

on 27 March 1983 there was granted to the third party a Crown lease of Lot 5787 subject to encumbrances,

reservations, covenants and provisions contained in the lease.	It was expressed to commence on that date and to be for a period of 30 months from the date of commencement.
The then lessee was required to enter into a "Subdivision Development Deed Desert Springs No. 111 ,	and it was-provided further that a failure of the lessee to comply with any duty or obligation imposed by the Development Deed would be a breach of a condition of the lease.

The lease provided that "the lessee may at any time surrender the lease in t_he manner prescribed by the Crown Lands Act provided that if the lessee completes, to the satisfaction of the Minister, the subdivision of any part of the land included in the lease, including the construction of roads and drainage, and the Minister is satisfied as to the degree of completion of the works involved in the subdivision, the lessee may surrender the lease as to that part of the land and shall be granted an estate in fee simple in respect.of each lot included in that part of the land on payment of the purchase price determined in accordance with s. 18 of the crown Lands Act (if any) payable in respect of each such lot".		The purpose for which the land was leased was expressed to be that "of Residential Development of land in accordance with the law of the Territory and the Development Deed".	One of the covenants in the lease obliged the lessee to comply with the Development Deed, and it further covenanted that it would not surrender or attempt to surrender the whole or any part

of the lease with a view to obtaining individual titles for the lot until the Minister was satisfied with the progress of the development as a whole.	It was obliged, within 30 months from the date of commencement of the lease, to complete subdivisional works in accordance with the Development Deed and in accordance with any Act or Regulation affecting the land, the subject of the lease, to the value of $1.5m.	Finally, it was provided that the "lessee may, on completion of the development in terms of the lease, surrender the whole of the lease in exchange for a grant of an estate in fee simple".

Lot 5787 was the only property the subject of that lease (which was numbered 103 and registered in the Register Book as Volume 194 Folio 27).	The plan attached to the lease, however, shows that it is but one part, and a small part at that, of a substantially larger piece of land which is divided into a total of 9 allotments (including lot 5787).	The lease was transferred to the defendant by the third party by Memorandum of Transfer registered on
9 October 1985, and on 8 September 1986 the Minister made a grant in fee simple of Lot 5787 to the defendant.	That last date assumes some importance because the defendant says that it was not until it had obtained the grant of the fee simple estate in the land that it became rateable.

The Deed describes Lots 5784, 5785, 5788 and 5792, (some of the other lots shown on the plan), Town of Alice

Springs, as being the "development area".	The leases granted by the Territory to the-third party over the development area are called "the subdivision leases".	The lease over Lot 5787 is thus not part of the development area nor a subdivision lease for the purposes of the Deed.	A "lot" is defined to mean one of the lots into which the development area is to be, or as the case may be, is, subdivided in accordance with the Deed; "subdivision" means the production of serviced lots in accordance with the Deed and "Works" means all those services and facilities involved in the subdivisional development of the development area and includes any other services necessary for the purposes of the development of lots.	It is also provided in the definition provisions (Clause 11(2)) that a "word or phrase that is used in the Deed and which is not defined shall, unless the.contrary intention appears, have the meaning, if any, it has in, or which is attributed to it, by the Crown Lands Act, or in the absence of any such meaning in that Act, the meaning, if any, it has in, or which is attributed to it, by the Planning Act".	I have not had occasion to resort to those enactments for assistance in definition of words or phrases.

The Deed provides for the developer (the third party) to submit within 6 weeks of the day of commencement of the Deed the developer's "proposed subdivision plan".
The plan was to be in accordance with the requirements of the Northern Territory Planning Authority, but those

requirements are not in evidence.	The Deed contains detailed provisions as to progress in relation to the subdivision and the requirement to obtain approvals from relevant authorities.	At Clause 24(2) it is provided that the developer, prior to being entitled to a grant of an estate in fee simple in respect of the development area or part of the development area, shall arrange for a chartered engineer to certify that each stage of the Works constructed has been completed in accordance with approved plans.	The developer was obliged, prior to the expiry of the term of the subdivision leases, to design, construct and install all the Works in accordance with approved plans and to a fixed timetable (Clause 25(1)).	Clause 34 provides that upon application, and upon the Director being satisfied that the Works servicing a part of the development area are complete in accordance with the requirements of the Deed, the Director shall issue to the developer a Certificate of Practical Completion in respect of that part of the development area whereupon, in accordance with Clause 32, subject to immaterial exceptions, upon the issue of such a certificate in respect of all of the Works relating to the developed lots, the Minister shall grant an estate in fee simple to the developer in respect of any developed lots.
Thus far it is clear that the Development Deed has no bearing at all upon Lot 5787.	It was not within the area defined as the development area and it was not the subject of a subdivision lease within the meaning of the Deed.	The "Works" referred to throughout the Deed are by definition

works involved in the subdivisional development of the development area.

However, in Schedule 6 to the Deed, containing special conditions, it is provided that where in the opinion of the Director the developer is failing to comply with the Agreement between the developer and the Alice Springs Golf Club Incorporated in respect of other lots, the developer agrees that the Minister shall be entitled to withhold title to any land developed in accordance with the Development Deed and the associated subdivision or development lease or leases over Lots 5784 to 5792 (including, of course, Lot 5787).	The special conditions also provide that the developer shall fully comply with all the conditions of approval of Subdivision Instrument of Determination S489 of the Northern Territory Planning Authority with regard to Lots 5784 to 5792 inclusive.	That Instrument relates to easements and the like being made available to the Territory and the registration of grants in the Land Titles Office.

The terms of the lease over Lot 5787 were clearly linked with the obligations of the developer under the terms of the Deed, but there is nothing in the Deed relating to the subdivision of Lot 5787.	There is no other evidence to suggest that it was ever proposed that there be a subdivision of Lot 5787.	Clause 6 of the provisions in the lease contemplates that the lessee might subdivide the land included in the lease, but there is no evidence that it ever

intended to do that.	The lessee was entitled to use the land for residential purposes•. rt is clear enough that there was a much bigger scheme involving the development of land in and around what became the new golf course at Alice Springs, of which Lot 5787 was but a small part.	The third party was granted title to the lease in respect of that lot at the same time as the execution of the Deed relating to other lots, and the effect of the lease was that until the Minister was satisfied as to progress of the "development as a whole", and until the lessee had spent $1.5m on the subdivisional works in accordance with the Development Deed (not necessarily on the land comprised in the lease), the lessee would not be entitled to a grant in fee simple in respect of the subject Lot 5787.

Section 23E of the Crown Lands Act has no bearing upon Lot 5787.	It provides that where,·in pursuance of a covenant contained in a lease, the lessee is required to subdivide land that is the subject of the lease, that land is, while it is not so subdivided, exempt from payment of rates under the Local Government Act.	There was no covenant contained in the lease over Lot 5787 by which the lessee was required to subdivide it.	The lessee may well have been obliged to subdivide other land, but Lot 5787 stood apart from it, the subject of a separate title.

No other arguments were advanced with a view to showing that the land was not rateable by the plaintiff, and

I therefore find that it was liable to be rated pursuant to provisions of the former Local Government Act as from the date of the commencement of the term of the lease, that is,
27 March 1983, and pursuant to the new Act as from the date of its commencement, 1 July 1986.

Estoppel

The defendant alleges in its pleadings that prior to the transfer of the lease to it on 9 October 1985, its solicitors sought and received-advice from the plaintiff that there were no rates outstanding on the land, and that the defendant acted on that advice to its detriment by proceeding with the transfer of the land without seeking any reimbursement of rates from the third party.	The defence, as pleaded, then says that the plaintiff is estopped from seeking the recovery of any rates on the land prior to 9 October 1985.	The facts and circumstances relating to the alleged advice given by the plaintiff are agreed between the parties in the following terms:

"On or about 9 October 1985, Ms K Kelly, the conveyancing clerk then employed by Poveys, solicitors of Alice Springs, acting on behalf of the defendant, spoke by telephone to the rates clerk employed by the plaintiff and enquired whether any rate assessment had at that time been raised in relation to Lot 5787 in the Town of Alice Springs.
The rates clerk told Ms Kelly that there was no record of Lot 5787 on the computer.	At the time of this conversation, the rates clerk knew that Ms Kelly was the conveyancing clerk in the employ of Poveys and that she was making the enquiry for

the purposes of a settlement concerning Lot 578711 •

The evidence discloses a most unsatisfactory state of affairs, from the point of view of the plaintiff, in relation to its ascertaining when pieces of land within the municipality became rateable.	Under the Local Government Act, as it was at the time that the lease over Lot 5787 was created, unleased Crown Land in the municipality was not rateable if it was not occupied by a person other than the Territory.	There were other exemptions (s. 175B).	The uncontested evidence is that there were a number of occasions when the plaintiff first became aware of the existence of a particular lot when it received a Notice of Transfer of the lot from the parties to a transfer, not when it first became rateable consequent upon a title being created over it.	Upon receipt of the Notice of Transfer of a particular property, the plaintiff would search its records with a view to amending the particulars as to the new ownership, but if there was no record of the property it would obtain details from the responsible Department of the Northern Territory Government.		Upon obtaining details of the title, the Valuer General was then requested to issue his Valuation Notice.	Upon being armed with all that information the practice of the plaintiff was then to enter the land in its computer records and levy rates back to the date of the issue of the title.

That was the practice which had developed in Alice

Springs in relation to the identification and entry into the Council's records of the many pieces of land which became rateable as a result of the subdivision of the development area earlier referred to.	It was known, said a solicitor who was frequently engaged in relation to the transfer of new titles arising from that subdivision, that the council would have no record of the lot to be transferred from the developer to the purchaser at the time when the settlement of that transaction was due to take place, usually within 14 days after the issue of the title.	An oral enquiry of the Council would confirm that the property was not on the Council's records.	Appreciating, however, that once Council became aware of the existence of the land as rateable land that a levy for rates would be made upon it, arrangements were made for the appropriate adjustment of rates as between the vendor and purchaser once the rate notice was received after the settlement.	That was the practice which was reflected in the enquiry regarding rates outstanding on Lot 5787 on,about 9 October 1985.	The distinction between those other lots and that lot, however, is that they were not rateable prior to the issue of the freehold title, being embraced by the provisions of s. 23E of the Crown Lands Act, but, as I have already held, Lot 5787 was not so exempt.
Accordingly, the fact that the clerk in the office of the
plaintiff informed the clerk in the office of the solicitors for the purchaser that the property was not recorded by the plaintiff, did not convey any more than that.	The plaintiff knew nothing about the lot.	It was the solicitor for the

purchaser or his clerk who assumed, wrongly, that because the particular lot was not on the plaintiff's records it was in the same category as all the other lots that he had dealt with, that is, that it was unrateable until the fee simple title issued.	It has not been shown that the Council was in any way aware that Lot 5787 stood in a special category, having been rateable since the lease was granted in March 1983.	It is also the fact that the solicitor whose clerk enquired of the Council about the rates was also acting for the vendor, the third party, and thus must be taken to have known the position in relation to this particular piece of land, that is, that it stood apart from the blocks in the development area, and had been rateable since the date of issue of the lease.	The fact that the Council had no record of the block should have alerted him to the possibility, at least, that once the Council became aware of the real circumstances it might well seek to levy rates for past years upon it.		The plaintiff played no part in the formation of the assumption made by the solicitor on behalf of either or both the defendant and third party.	No estoppel arises against the plaintiff.

A person who acquires an estate or interest in rateable land is liable for payment of both current rates and all arrears of rates owing in respect of the land.
However, where the land is purchased by a bona fide purchaser for value, who, not more than 7 days before the date on which he purchased or entered into an agreement to

purchase the land, obtained a written certificate from the clerk that no rates were, at that date, owing in respect of the land, is not so liable (s. 185 repealed Local Government Act).	No such certificate was sought.	The rate became due and payable upon the expiration of one month after.the date upon which the rate notice in respect of that rate was served (s. 189).

Defects in the rating process

The defendant alleges that there were a number of defects in relation to the rating process so that notwithstanding the receipt of a number of rate notices (which fact is not in dispute) the defendant is not so liable.

The rate notices for each of the years in question under the former Act were all issued on 26 May 1986 and directed to the defendant.	The objections to them may be summarised as follows:

For the year commencing 1 July 1982 the particulars given on the rate notice show:

"Unimproved Capital Value

140,000

Type of Rate

**RATES 82/83

Rate in
$U.C.V. 0.02785

AMOUNT
PAYABLE 1025.2811

Section 168 of the then Local Government Act provided that where rates are levied as a combined rate, particulars of each of the rates comprising the combined rate should be shown on the rate notice, stating:

the type of each of the rates;

the amount of each rate for every dollar of the unimproved capital value of the rateable land;

(e)	the total amount of the combined rates.

The objection is that the particulars do not comply with that'provision.	In the notice published in the Government Gazette on 15 October 1982 it was stated that the plaintiff had declared a general rate of 2.7285 cents in the dollar, and a loan rate of 0.4882 cents in the dollar on the unimproved capital value of all rateable land within the municipality in respect of the year commencing 1 July 1982.	Particulars of each of the rates have not been shown on the rate notice in accordance with the provisions of the Act.
Furthermore it is argued that the "rate in
$U.C.V." of 0.02785 is not the rate declared by the Council.

For the year commencing 1 July 1983 the particulars given in the rate notice are as follows:

"Unimproved Capital Value

140,000

Type of Rate
**ARREARS 82/83
**RATES	83/84

Rate in
$U.C.V. 0.0246

AMOUNT
PAYABLE
1025.28
3444.0011

The submission made arising from s. 168 of the Act does not apply in any year after the 1982/1983 year because the plaintiff did not declare a combined rate in any of the subsequent years.
However, it is argued that the requirements as to publication of the resolution by which the rate was declared was not observed.	Section 157(2) of the former Act required the clerk to give public notice of the resolution by which a rate is declared.	There is evidence of the declaration of the rate on 5 September 1983 and of its publication in the local newspaper on 14 September 1983.

In respect of the year commencing 1 July 1984 the particulars are as follows:

"Unimproved Capital Value
1.40,000

Type of Rate
**ARREARS
**RATES 84/85

Rate in
$U.C.V.

AMOUNT
PAYABLE
$4469.28
$361.6.20	11

The objection to that notice is that no particulars are given as to the rate in the
$U.C.V. which was struck.

The particulars given in the rate notice for the year commencing 1. July 1.985 reads as follows:

"Unimproved capital Value
1.40,000

Type of Rate
**ARREARS
**RATES 85/86

Rate in
$U.C.V.

AMOUNT
PAYABLE
$8085.48
$3724.00 11

The same objection is made to this rate notice as to that for the year commencing 1. July 1.984 and it is convenient to deal with both together.

The Act in force as at 1. July 1.983 required the town clerk to levy a rate declared by the Council by serving a rate notice in the prescribed form on the person who was liable for payment of it (s. 1.56(1.)(b)).	The then prescribed form (Form 1. to the Regulations) required that particulars be given of the rate in the $U.C.V.	The regulation prescribing the form and the forms was repealed
1.6

by an amendment to the Local Government Regulations No. 25 of 1984 which came into force on 1 July 1984.	On-the same date the Local Government (Accounting) Regulations, No. 26 of 1984, commenced operation.	Regulation 35 as to the form of a rate notice provided that a rate notice served under the Act by a council shall contain the basis of assessment of the rate and, where applicable, the valuation.

The form of notice issued by the clerk in respect of this property did not vary between that used for the 1982/1983 year and subsequent years.	Clearly all of the rate notices which failed to provide particulars of the rate struck upon the unimproved capital value of the land were deficient as was that which failed to disclose the basis of the assessment.	"Rate in $U.C.V." without else tells the ratepayer nothing, not even that the rate is struck on that basis.

For the year commencing 1 July 1986 (the date of commencement of the current Local Government Act) the particulars are as follows:

"Unimproved		Rate in	AMOUNT Capital Value	Type of Rate	$u.c.v.	PAYABLE
RATES
541000	GENERAL RATE	1.4000	7574.00
RATE ARREARS	11809.48
**TOTAL RATES	19383.48

1 GARBAGE CHARGE	104.00	104.00	
**TOTAL GARBAGE		104.0011	

GARBAGE

The objections are that -

there is no evidence that the unimproved capital value was then $541,000

there was a failure to comply with s. 119 of the new Act in that no public notice of the rates and charges was given in the Gazette before the expiration of 10 days after the declaration of the rates, because the notice was not published within that period and in any event was not in a prescribed form, a requirement of the Act at the time this rate was declared.	The rate notice in respect of that year was issued on 19 September 1986, and the evidence is that such publication as was made was made later, that is, in the local newspaper on 26 September 1986 and in the Government Gazette later still, 1 October 1986.	The publication of the notice was not in the prescribed form since none had been prescribed by the Act or by any instrument of a legislative or administrative character made under the Act (Interpretation Act
s. 18).	The town clerk's evidence is that the delay was occasioned whilst prescription of the form was awaited and when that was not

done he published in the form adopted under the repealed legislation.

Statutory Proof

In resisting these various objections the plaintiff firstly relies on evidentiary provisions.	Section
417 of the former Act provided that:

"in any proceedings for the recovery of a rate, production of a copy of an entry in the rate book -
certified by the clerk to be a true copy of the entry;

and
showing an amount to be owing for rates levied on land,

shall be prima facie proof that the amount is owing to the Council, without further evidence being required, and that the provisions of the Act had been complied with, with respect to the declaration and levying of the rate."

That prima facie proof must be displaced if the evidence shows that the provisions of the Act have not been observed.

A more extensive provision is contained in the new Act ins. 121as follows:

"(1) The production of the Gazette in which a notice is given under s. 119 is conclusive evidence of the

rates and charges to which the notice relates having been duly declared by the Council.

(The declaration of the rates is not in issue).

In proceedings for the recovery of a rate or charge, production of a copy of an entry-in the rate book -
certified by the clerk to be a true copy of the entry;
showing an amount to be owing for rates or charges levied on the land;

and
an affidavit of service under s. 120(3), shall be prima facie evidence that -

the amount is owing to Council; and
this Act has been complied with in relation
to the declaration and levying of the rate or charge and the service of the notice of the rate or charge.

Again, the prima facie evidence is displaced if there is evidence that the provisions of the Act have not been observed.

Levying of rates under the former Act

"The question is essentially one of statutory construction.		What did the legislature intend to be the consequences of non-compliance with the relevant provisions?"	per Sheppard J. in Van Reesema v Official Receiver (1983) 50 ALR 253 at 265.

The relevant provisions under the repealed legislation were as follows:

Prior to i July i985, s. isa provided that a Council shall, before 30 September in every year, by resolution declare a general rate on its unimproved capital value of all rateable land within its municipality.	After that date it was provided that a Council shall, before 30 September of each financial year, or such later date as the Minister allows, by resolution at a meeting, declare for that financial year -

the amount which it intends to raise for general purposes by rates;

and

whether general rates will be raised by the application of -

a uniform rate with or without a minimum amount being payable and the application of that rate;

or

differential rates with or without

minimum amounts being payable ,a. nd the application-of those different rates.

Prior to 1 July 1984 it was provided that before a Council declares a rate it shall cause detailed estimates to be made of the income and expenditure of the fund to which the rate relates, arrange for copies of the estimates to be available at the Council office and cause a summary of those estimates to be published on two separate occasions in a local newspaper together with a notification that the two copies of the estimates are available at the Council office for free inspection (s. 155(1)).	A rate was not to be declared until at least 10 days had elapsed since the date of the'latter of the publications referred to, but it was obliged to declare the rate within 30 days of that date (subsection (2)). By subsection (3) it was provided that the validity of a rate was not affected by reason of a failure on the part of the Council to comply with the provisions of s. 155 before or in declaring the rate.

After 1 July 1984 s. 155 provided that before a Council declared a rate it shall cause to be made, in the prescribed manner and form, estimates of the income and expenditure of the fund to which

the rate or other annual charge relates and should cause details of the estimates to be published, or otherwise made available for inspection by the public, as prescribed.

A rate declared applies for the year commencing on the preceding 1 July and is to be levied by the clerk serving a rate notice in the prescribed form on the person who was liable for payment of the rate (s. 156(1)(b)).

Where a Council proposes that more than one rate should be levied, the several rates shall be declared separately, but may be levied either as a combined rate or as separate rates (s. 167).

Bys. 157(2) the clerk was prohibited from serving a rate notice in accordance with s. 156 unless he had made the entries in the rate book as provided bys. 153 and had given public notice of the resolution by which the rate was declared.

Where rates are levied as a combined rate, particulars of each of the rates comprising the combined rate is to be shown on the rate notice stating the type of the rates, the amount of each rate for every dollar of the unimproved capital value of the rateable land, and the total amount

of the combined rates.

The rate so levied becomes due and payable upon the expiration of one month after the date upon which a rate notice in respect of that rate was served in accordance with that Act (s. 189).

Repeal of the former Act

The former Act was repealed as from 1 July 1986, the date upon which the new Local Government Act commenced operation.	The rate notices in respect of the years prior to the year commencing 1 July 1986 are stated to have been issued on 26 May 1986 and the evidence of the Town Clerk is that the notices were posted by the defendant by prepaid post within two days of the dates of issue.	It is not contended that service was not effected prior to the commencement of the new Act.	I can find no provision in the savings.and transitional part of the new Act which would enable the clerk to levy rates under the former Act after the date of its repeal.	The repeal did not affect any liability incurred under the repealed Act or any remedy in respect of that liability (Interpretation Acts. 12).

Levying of rates under the new Act

The procedures leading to liability to the payment of rates as established by the new Act are as follows:

The clerk in each financial year before the
/
declaration of a rate.is to cause to be prepared in the prescribed manner and submitted to the council, estimates of income and expenditure for that financial year in relation to the general fund and each trading undertaking of the Council, and subject to any variations as the Council thinks fit, the estimates are to be published, as prescribed (s. 150).	Where a Council adopts estimates it shall ensure that, as far as practicable, the estimated expenditure does not exceed the estimated income (s. 151}.

Not less than 10 days after publication of the estimates and by 30 September in each financial year or such later date as the Minister allows, the Council shall, by resolution at a meeting, declare for that financial year the amount which it intends to raise for general purposes by rates and whether general rates will be raised by the application of a variety of types of rates
(s. 111(1)).	It may adopt as a method for determining the assessed value (as defined) of all rateable land of the municipality, the unimproved capital value, the improved capital value or the annual value (s. 112}.	This provision explains the requirement for particulars as to the basis of assessment of the rates to be set out in the rate

notice.

Before the expiration of 10 days after the declaration, under s. 111, -the Council is to give public notice of the rates and charges by publishing in the Gazette and in the newspaper circulating in the municipality, in the prescribed form, details of those rates and charges.	(The requirement that the publication be in the prescribed from has since been repealed, but it was in force in 1986).

The Council may levy rates and charges by causing a notice to be served on the person liable to pay those rates and the notice is to contain the prescribed information.	Whenever possible the Council is to levy the rates in the financial year in which they are declared (s. 120(1) &  (5)).	The requirement to levy the rates in the financial year in which they are declared is limited to rates declared under s. 111 of the new Act.

Rates are due and payable on the expiration of 28 days after the date upon which the notice under s. 120(1) is served (s. 125).

Validity of the levies

When an executive act is subjected by statute to the prior performance of conditions, the question arises as to whether failure to comply is fatal to the validity of the act.	But the task is not always easy.	As Simpson CJ. in equity said of another Court, in Knight v Municipal District of Rockdale (1899) 20 NSWR 32 at 47, it was "On reflection so much impressed with a sense of the mischief which might arise from pronouncing in favour of either view that they declined to give any opinion upon the point and decided the case on another ground."	I do not think it is open to me to "imitate the caution of the court in that case, so far as I can, by not attempting to solve the mystery .....•" as did his Honour.	Sheppard J. dealt with the problem in Van Reesema in the following way at p. 265:

"The question is essentially one of statutory construction.	What did the legislature intend to be the consequence of non-compliance with the relevant provisions?	The way in which a court should approach the resolution of such a question has been stated in many cases.	In seeking guidance from them I acknowledge the help I have found in the treatment of this subject by Professor Pearce in his work, Statutory Interpretation in Australia seconded, pp 169-76.
In state of Victoria v Commonwealth {1975) 134 CLR
81 Stephen J discussed, in general terms, the approach of courts to the question of whether particular statutory provisions were mandatory or directory, and if the latter, whether substantial compliance was nevertheless required or not (at 178-180).	In Tasker v Fullwood [1978] 1 NSWLR 20 the New South Wales Court of Appeal said (at 23- 4) : -

"The remaining submission was that the order made

by the court under s. 27 granting a conditional license was not denied legal effect by the failure to produce any agreement between the applicant and the lessor.		The submission raises a question of a type which is frequently encountered.		The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions.	The numerous decisions in this field have been recently reviewed by this court: Attorney-General (NSW) ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 and Hatton v Beaumont [1977] 2 NSWLR 211.	The position of directory enactments has also been expounded in an authoritative but obiter way in Victoria v Commonwealth (1975) 134 CLR 81.	From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute.
Little, if any, assistance, will be derived from
the terms of other statutes or any supposed judicial classification of.them by reference to subject matter.	(2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklins Stores Pty Ltd case (supra, at 963 et seq).
The only true guide to the statutory intention
is to be found in the language of the relevant provision and the scope and object of the_ whole statute: Hatton v Beaumont (supra, at 220)..
The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v Commonwealth (supra, at 179, 180).	(5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms.	It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations.	(6) In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated: the Franklins stores Pty Ltd case (supra, at 965	et seq).	A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v Commonwealth (supra, at 118, 162, 179, 180)."

Professor Pearce summarizes the position as follows (ibid at p. 174): "The only guiding principle will be the-statute and from it the court will have to glean one of three intentions in regard to the designated procedure: (a) that strict compliance is necessary; (b) that substantial compliance is necessary together with the degree of •substantiality•; or (c) that compliance is not a precondition to the action taken.	Breach of (a) or (b) will result in invalidity but no adverse consequences will flow if (c) is found to apply (unless some separately designated penalty is included in the legislation),"

I would respectfuly (sic) agree with what is there said.	Usually there will be one of three situations.	Sometimes strict compliance is required; otherwise an act will be invalid.	In other cases substantial compliance will be sufficient; in such cases there will sometimes be questions of how substantial the compliance must be.	In yet others there may be no compliance at all, but the validity of the act in question will not be affected.	Sometimes a case will not lend itself to any question of substantial compliance. There will either be actual compliance or no compliance, with the result that the only question is whether, if there be no compliance, invalidity results."

The deficiencies in respect of the rate notice for the year commencing 1 July 1982 present no difficulty.	Near enough is not good enough.		The obligation is on the Town Clerk to make a levy of the rate declared, not something else.	It was conceded by counsel for the plaintiff that the amount claimed as payable is not the sum properly derived by calculating the rate declared by the Council against the unimproved capital value.	An application was made to amend the declaration sought in these proceedings in respect of that financial year to reflect the correct amount.	What is needed is a proper levy in the first place.	There was none. The failure to specify the type of each of the rates levied

also invalidates the notice.	A ratepayer is entitled to
,
know what it is that is being charged as the statute required.		Similarly, as to the years commencing 1 July 1984 and 1 July 1985, the failure to include in the notice the basis of assessment of the rate is fatal to the validity of the notice.		The purpose of providing the particulars required is to enable the owner of rateable land to do such calculations as are necessary to be assured that the amount claimed to be payable is accurate.	Not knowing a basis of the assessment of the rate (the unimproved capital value) leaves the potential ratepayer at a grave disadvantage, and it is no answer to say that enquiry may disclose the missing detail.	The entitlement of a prospective ratepayer to know the basis upon which the rate is levied, and to be able to verify from the rate notice exactly what the amount of the obligation is, must be a fundamental in the compulsory rating process permitted by the Act.	The failure to provide the prescribed particulars invalidates the levy.

Although it does not fall for decision, there does not appear to have been any restriction upon the time during which a levy might be made by the Town Clerk in respect of rates declared by the Council under the former Act but, that Act has now been repealed and the Town Clerk no longer has any authority to levy in respect of such a rate.

As to the unimproved capital value, there is evidence that supports the stated value of $140,000 in the

various rate notices prior to that issued for the year commencing 1 July 1986, upon whi.ch notice the $U.C V. is stated to be $541,000.	The defendant says that there being no evidence of that valuation then the plaintiff has not proved its case.	The certified copies of entries in the rate book for the various financial years in question do not disclose any entry in respect of Lot 5787, nor in relation to any debt for rates standing in the name of the defendant prior to the financial year commencing 1 July 1986.	The extract for that year shows the lot number (as part of the assessment number), the name of the defendant, a rate in the
$ of 1.4000; the next heading is "AAV" and under that "$541,00011•	There is no reference to "UCV" as there is in the rate notice, and there is no evidence to relate "AAV" to "UCV".	Notwithstanding that the figure of $541,000 appears in the certified copy extracts placed in evidence and upon the rate notice, the fact is that those certified·copies do not show an unimproved capital value, and I am left to speculate that "AAV" was meant to be, or is supposed to be, the same as "UCV".	I am not prepared to do that.

There is a further difficulty in relation to the rates post 1 July 1986.	It is most difficult to determine what particulars should be in the rate book under the new Act so that a decision can be made as to whether what is said to be a certified copy extract from the rate book is in fact from the book as defined by the statute.	Section 103 of the new Act provides that a Council shall cause to be

kept a record, to be known as the rate book, in which -
,'

prescribed information; and

such other particulars relating to land in its municipality and the ownership of an estate or interest in such land as it thinks fit, shall be entered.

There is no prescription in the Act as to the information to be placed in that record.	Under the Local Government (Accounting) Regulations No. 25 of 1984, Regulation 34(4) provides for matters required to be recorded in the rate book in addition to those required by
s. 149 of the Act (which must mean the repealed Act).	I have not been directed to; nor can I find any regulations concerning the particulars to be recorded in a rate book under the new Act.	The requirements of s. 149 of the repealed Act ceased to apply as from 1 July 1986 but the regulations continued to exist as regulations under the new Act as if they had been made under the new Act (s. 346). That does not help, because the only regulation which I can find touching upon the matter is that to which I have just referred and it relates back to the repealed Act.	If there is no rate book then there can be no certified copy of an entry in it by the clerk and thus no prima facie proof of the matters referred to in subsection (2) of s. 121 of the new Act.

Neither the failure to publish in time nor the failure to publish in a prescribed form was fatal to the assessment of the 1986/1987 rates.	As to publication in time, that is a matter which may be defeated, for example, by circumstances beyond the control of the Council ·and there is no good reason to think that the legislature intended that the whole of a Council's budgeting procedure should be invalidated because of circumstances beyond its control.	As to the prescribed form, there was none.	It is not suggested that the form adopted by the Council was inappropriate to the purpose for which such publication was intended.	It is also contended that even if the rate notices were not invalidated on those grounds, they were invalid because the rate notice for the 1986/1987 financial year was issued and served prior to the date of publication of the declaration of the rate.	There is merit in the suggestion that a rate notice should not be issued and served prior to publication of a declaration of the rate, thus enabling the ratepayer to have the opportunity of checking that the particulars of the rate on the rate notice accord with the particulars contained in the publication of the declaration.	However, apart from the fact that s. 120 of the new Act regarding the levying of rates follows s. 119 as to publication of the declaration, there is no indication that the former should follow the latter in time.	Since there is no statutorily prescribed temporal connection between the two events, there can be no basis for holding a levy to be invalid for breach of a non-existent condition.

·'

A separate argument was put by the defendant that the levies in 1986 of rates for the previous financial years were invalid because they were "retrospective".	There was no statutory limitation upon the period during which the clerk might levy rates under the former Act and there is no absolute limitation under the new.	The question here is not as to the.retrospective operation of a taxing statute in the normal sense, it goes to the power of the clerk to levy rates for past periods.		All other steps relating to the declaration of rates had been taken in the year required and the lot was rateable.	All that happened was that the Council did not know of it.	This argument fails.

Finally, objection was taken to the terms of a letter sent to the defendant by a clerk in the plaintiff's office stating that the rates had been levied in reliance upon s. 178 of the former Act.	Whether that reliance was well placed or not does not matter.	The lot was either rateable or not rateable and the belief of the clerk is of no relevance in this action.

Declare that the plaintiff has lawfully levied rates on the defendant as the owner of Lot 5787 Town of Alice Springs for the financial year commencing 1 July 1983 in the sum of $3,444.00 and for any proper charges arising from non-payment of that sum.

Declare that the plaintiff has not lawfully levied

rates on the defendant as owner of Lot 5787 Town of Alice
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Springs for the financial years commencing 1 July 1982, 1984, 1985 and 1986.