Cooke v Real Estate Disciplinary Tribunal - [2014] NZHC 2254

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2014-404-204 [2014] NZHC 2254

UNDER THE
Judicature Amendment Act 1974, ss 4(1)

and 4(5)

BETWEEN

KENNETH COOKE Plaintiff

AND

REAL ESTATE AGENTS DISCIPLINARY TRIBUNAL First Defendant

AND

P HUMPHRIES Second Defendant

AND

B F ENGLAND Third Defendant

Hearing: 28 July 2014

Appearances:

Kenneth Cooke in person
D Perkins for Tribunal
T Rea for second and third defendants

Judgment:

17 September 2014

JUDGMENT OF THOMAS J

This judgment was delivered by me on 7 September 2014 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Crown Law, Wellington. Glaister Ennor, Auckland.

COOKE v REAL ESTATE AGENTS DISCIPLINARY TRIBUNAL [2014] NZHC 2254 [17 September 2014]

Introduction

[1] The plaintiff, Mr Cooke, has applied for judicial review of the Real Estate

Agents Disciplinary Tribunal’s decision dated 17 October 2011.

[2] In its decision the Tribunal dismissed an appeal made by Mr Cooke against the decision of the Complaints Assessment Committee to take no further action on his complaint.

[3] Mr Cooke’s complaint alleged that his property at 86A Kitchener Road, Milford, was sold at an undervalue in a mortgagee sale conducted by Barfoot & Thompson Ltd (Barfoot). This was, he alleges, due to the conduct of the second and third respondents, Mr Humphries and Mr England (agents of Barfoot).

Factual background

[4] In 2007 Mr Cooke and his wife built two houses at Kitchener Road. By late

2007 both houses were listed for sale with Barfoot for $2.595 million each. In March 2008 Mr and Mrs Cooke changed to Prestige Real Estate and the price was dropped to $2.49 million. The houses did not sell. An auction was held in November
2008 and the best offer received for either property was $1.2 million. In March 2009

ASB Bank Limited (ASB) commenced mortgagee sale proceedings. House 86A was sold for $1.26 million. Barfoot acted as agent and had appraised the property value at between $1.1 and $1.2 million. The other property sold privately some time later.

[5] Mr and Mrs Cooke considered that Barfoot’s appraisal for the property was too low. They felt that, in preparing such a low appraisal, Barfoot indicated to purchasers that the likely sale price was in the low $1 millions, when in fact a recent capital value of the property was $1.75 million. They also complained that the marketing for the property was perfunctory, there were errors in the sale material and that Mr Humphries did not honour his undertaking to obtain the best possible price. Furthermore, Barfoot took three months to respond to their initial complaint.

Complaint by Mr Cooke

[6] In his complaint to the Real Estate Agents Authority dated 3 September 2010, Mr Cooke made three principal allegations:

(a) that Mr Humphries misrepresented the “key conditions” for the

mortgagee sale to Mr and Mrs Cooke at a pre-sale briefing;

(b)that Mr England failed to market the property in a professional and responsible way, did not act on the advice of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 2254
Decision Date: 17 September 2014

CaseChat Overview and Summary

The plaintiff, Mr Cooke, sought judicial review of the Real Estate Agents Disciplinary Tribunal’s decision to dismiss his appeal against the Complaints Assessment Committee’s decision to take no further action on his complaint that his property was sold at an undervalue. The issues before the Court were whether there was procedural impropriety in the Tribunal’s process and whether there was an error of law. The Court found that the Tribunal did not breach any procedural requirements, particularly in relation to the onus of proof and the absence of witnesses at the hearing. The Court also held that the Tribunal’s decision was not unreasonable and did not constitute an error of law. The Court dismissed the application for judicial review.

Orders