Cooke v Valuers Registration Board - [2014] NZHC 323

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000610 [2014] NZHC 323

UNDER the Judicature Amendment Act 1972 Part 1

IN THE MATTER OF the Valuers Act 1948

BETWEEN K R COOKE Plaintiff

ANDVALUERS REGISTRATION BOARD First Defendant

ANDG J CLAPCOTT Second Defendant

Hearing: 22 August 2013
[Further Submissions (on the Papers) on 12 September 2013 and 1 October 2013

Appearances: K R Cooke (Self-represented Plaintiff) in Person
P K P Stewart for the First Defendant
P J L Hunt for the Second Defendant

Judgment: 28 February 2014

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 28 February 2014 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Izard Weston, Wellington
McElroys, Auckland

Copy To: K R Cooke, Auckland

COOKE v VALUERS REGISTRATION BOARD [2014] NZHC 323 [28 February 2014]

[1] The first defendant (the Board) is a statutory body with responsibility for regulating the professional conduct of registered valuers. The second defendant, Mr Clapcott, is a registered valuer. The plaintiff, Kenneth Cooke, complained to the Board about a valuation report that Mr Clapcott had prepared. The Board determined that there was no reasonable ground for holding an inquiry and accordingly it refused to do so. Mr Cooke now seeks judicial review of this decision.

[2] The proceeding raises the following issues:

(a) Does the Board’s decision not to prosecute Mr Clapcott involve the exercise of a statutory power?

(b) Is this decision reviewable?

(c) Does the Board’s decision not to prosecute reveal a reviewable error?

Background facts

[3] In February 2009, Mr Clapcott prepared a valuation report in relation to two properties owned by Mr Cooke for Mr Cooke’s mortgagee, the ASB Bank Limited. Later in May 2009, when Mr Cooke obtained a copy of the valuation report from the ASB Bank Limited, he formed the view that it did not comply with the professional standards that applied to Mr Clapcott. On 24 September 2009, he sent a letter of complaint to the Property Institute of New Zealand in which he alleged that Mr Clapcott had:

… breached the NZ Institute of Valuers Code of Ethics when preparing a valuation of our properties at 86 and 86A Kitchener Road, Milford, North Shore City, which was for the purposes of determining a market value for ASB Bank Limited.

… as a minimum, breached Code of Ethics Clause A.2 in that he did not observe the requirements of impartiality, objectivity and professionalism thereby directly contributing to the loss we have suffered, both financially and mentally.

[4] There is no dispute that the complaint was sent to the wrong body. However, it was then passed to the New Zealand Institute of Valuers. There is also no dispute that Mr Cooke confused the Property Institute of New Zealand’s code of ethics with the New Zealand Institute of Valuers’ code of ethics. However, when the Institute received the complaint, it acted in accordance with the statutory scheme in the Valuers…

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 323
Decision Date: 28 February 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Kenneth Cooke sought judicial review of the Valuers Registration Board's decision not to prosecute a registered valuer, Mr Clapcott, following a complaint by Cooke about a valuation report prepared by Mr Clapcott. The Board concluded that there was no reasonable ground for holding an inquiry and thus refused to do so. The primary issues before the court were whether the Board’s decision involved the exercise of a statutory power, whether this decision was reviewable, and if the Board’s decision revealed a reviewable error.

The court found that the Board's decision not to prosecute Mr Clapcott involved the exercise of a statutory power, consistent with the principles established in Hallett v Attorney-General (No 2). It held that the Board’s decision not to prosecute Mr Clapcott was reviewable only if it constituted a failure to exercise the discretion whether or not to prosecute, or if it was tainted by bad faith or abuse of process. Given the evidence, the court concluded that the Board had exercised its discretionary power and made a decision, which was not reviewable on the ground that factors leading to it had not been properly weighted. The court further determined that the Board had proceeded reasonably and there was no evidence of bad faith or acting for a collateral purpose.

The court also addressed specific allegations of unethical conduct made by Mr Cooke against Mr Clapcott, including lack of impartiality, objectivity, and professionalism. The court found no evidence to contradict the Board’s conclusion that Mr Clapcott had not acted in an unethical manner. The court acknowledged that while the Board could have provided more detailed reasons for its decision, it found that the reasons for the Board's decision were apparent from the evidence presented. Consequently, the application for judicial review was dismissed.

Orders