Dickson v Real Estate Agents Authority

[2024] NZHC 645

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-134

[2024] NZHC 645

UNDER

Judicial Review Procedure Act

Part 30 of the High Court Rules 2016 New Zealand Bill of Rights Act 1990

IN THE MATTER OF

an application for judicial review of Practice Rules and decisions made under the Real

Estate Agents Act 2008

BETWEEN

JANET ELIZABETH DICKSON

Applicant

AND

REAL ESTATE AGENTS AUTHORITY

First Respondent

REGISTRAR OF LICENSED REAL ESTATE AGENTS

Second Respondent

ASSOCIATE MINISTER OF JUSTICE

Third Respondent

On the papers:

Counsel:

N Pender and B Morten for Applicant

A S Butler KC, S A Bishop and T G Bain for First and Second Respondents

Judgment:

22 March 2024

JUDGMENT OF GRAU J

[Application for security for costs]

An application for security for costs

[1]                 Mrs Janet Dickson has applied for judicial review of practice rules made by the Real Estate Agents Authority requiring her and other licensed real estate agents to

DICKSON v REAL ESTATE AGENTS AUTHORITY [2024] NZHC 645 [22 March 2024]

undertake, as part of their continuing education, a mandatory course called Te Kākano. She also challenges the Registrar of Licensed Real Estate Agents’ refusal to exempt her from undertaking the course. A one-day hearing has been set down, on 18 June 2024.

[2]                 The first and second respondents, the Real Estate Agents Authority and the Registrar of Licensed Real Estate Agents (the respondents), have applied to the Court for an order that Mrs Dickson pay security for costs under r 5.45 of the High Court Rules 2016 (the HCR). They seek $15,535 in security for costs (or any figure the Court deems just in all of the circumstances).

[3]                 The application is made on  the  basis  that  “there  is  reason  to  believe  [Mrs Dickson] will be unable to pay the costs of the respondents if [she is] unsuccessful in the proceeding”. The respondents primarily rely on Mrs Dickson’s affidavit sworn in support of her application for judicial review which refers to a risk of financial hardship to her if her real estate licence is cancelled as a result of an unsuccessful outcome in this proceeding.

[4]                 This matter was referred to me as Duty Judge and counsel requested the application to be dealt with on the papers.

Applicable principles

[5]Rule 5.45 of the HCR provides jurisdiction for an order for security for costs.

[6]                 The decision to order security for costs requires the Court to balance the competing interests of Mrs Dickson, who has a right of access to the court and to present her case, against the respondents’ right not to be unreasonably exposed to an unreasonable costs risk. The balancing of the interests of the parties is the overriding consideration.1

[7]                 Another consideration in this case is that the substantive proceeding is an application for judicial review. The right to justice is affirmed by s 27 of the

1      Highgate on Broadway Limited v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [24(c)].

New Zealand Bill of Rights Act 1990. Section 27 includes the right to the observance of the principles of natural justice and the right to apply, in accordance with law, for judicial review.

[8]The general approach to applications for security for costs was summarised in

Busch v Zion Wildlife Gardens Ltd (in rec and in liq) as follows:2

(a)Has the applicant satisfied the court of the threshold under r 5.45(1)?: I note here that the threshold of proof for making an order for security for costs has been said to be less than proof of inability to pay an award of costs. It is enough if the Court is satisfied that there is credible (that is, believable) evidence from which it may reasonably be inferred that the plaintiff will be unable to pay any such order.3

(b)How should the court exercise its discretion under r 5.45(2)?

(c)What amount should security for costs be fixed at?

(d)Should a stay be ordered?

Is there reason to believe Mrs Dickson will be unable to meet an award of costs against her?

[9]                 As above, the respondents rely on Mrs Dickson’s affidavit to suggest she would be unable to pay costs if she was unsuccessful in these proceedings. She has deposed that, if she lost her income as a real estate agent, her ability to meet necessary expenses would be “significantly impacted”, and her ongoing expenses include the care of her husband. The respondents submit Mrs Dickson’s affidavit suggests she does not have substantial savings or assets that could be used to meet an award of costs and they observe she is seeking to raise money from the public to fund the cost of the proceeding.

2      Busch v Zion Wildlife Gardens Ltd (in rec and in liq) [2012] NZHC 17 at [2].

3      Sharda Holdings Limited v Gasoline Alley Services Limited HC Auckland CIV 2008-004-539, 13 November 2009 at [6].

[10]              I consider the reasons given by the respondents are too slim to provide a basis for an order for security for costs.

[11]              First, I agree that the mere fact of financial stress should Mrs Dickson ultimately lose her real estate licence is insufficient. Nor am I able to  infer  from Mrs Dickson’s affidavit that she has no savings or assets that could assist in meeting an award of costs against her.

[12]              Secondly, Mrs Dickson has advised through her lawyers that her employment is to be reinstated, and interim orders have been made prohibiting the cancellation of her licence or declining the renewal of her licence until the final determination of the judicial review. I infer from those matters that she is not currently in financial stress. I agree that the interim orders have quelled the risk of financial hardship, at least until the end of the proceeding.

[13]              Thirdly, I also agree that the evidence of public (or “crowd”) funding does not necessarily lead to an inference that Mrs Dickson lacks means. I note too that the respondents also seek to use this fact as a reason to support the making of an order on the basis that the risk of withdrawal of the claim is low, given those fundraising efforts. The respondents assert that it is unlikely such public financial support would continue after the proceeding is determined to meet a costs award. I do not, however, consider that such an inference can be drawn. Both matters raised by the respondents in relation to the crowd funding are only speculation, not matters from which reasonable inferences can be drawn.

[14]              For those reasons the respondents have not  met the threshold  required  by    r 5.45. However, I also note the following, which I consider support an award not being made:

(a)First, is the nature of the proceedings. This is an application for judicial review, which is a fundamental right affirmed under the New Zealand Bill of Rights Act, and is a proceeding that engages issues of rights protected under that Act, in particular, rights of freedom of thought, conscience and religion, and freedom of expression.

(b)Second, it is a proceeding that is not only concerned with the private interests of Mrs Dickson. Although she may well be the principal beneficiary any successful judicial review, there are other real estate agents in a similar position. The respondents assert this number is small. That may be so, as a percentage of the total of real estate licensees, but at 92, it is not insignificant.

(c)Third, there is no suggestion from the respondents that the proceeding is entirely unmeritorious. Thus, it would not appear unjust for the large pool of real estate licensees collectively to bear the risk of costs exposure.

Result

[15]The application for security for costs is declined.

[16]Issues of costs are to be determined following the substantive hearing.

Grau J

Solicitors:

Franks Ogilvie, Wellington for Applicant

Luke Cunningham Clere, Wellington for First and Second Respondents