Domb v Real Estate Agents Authority - [2016] NZHC 767

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000160 [2016] NZHC 767

IN THE MATTER OF
an Application pursuant to section 3 of the

Declaratory Judgments Act 1908

BETWEEN

LUKE DOMB Plaintiff

AND

REAL ESTATE AGENTS AUTHORITY Defendant

Hearing: 18 April 2016

Counsel:

A O'Connor for Plaintiff
M J Hodge for Defendant
No appearance required for Real Estate Institute of New
Zealand

Judgment:

22 April 2016

SUPPLEMENTARY JUDGMENT OF COLLINS J

Introduction

[1] This judgment supplements my judgment of 10 December 20151 (the substantive judgment) and should be read in conjunction with that judgment.

[2] In the substantive judgment I issued a declaration that the Registrar is not entitled to require an applicant for an agent’s licence (or renewal thereof) to sign a consent to disclose information held by police about the applicant in the terms set out in cl 1 of the police vetting document which I reproduced in para [10] of the
substantive judgment.

1 Domb v Real Estate Agents Authority [2015] NZHC 3157.

DOMB v REAL ESTATE AGENTS AUTHORITY [2016] NZHC 767 [22 April 2016]

[3] I concluded however, the Registrar is entitled to request an applicant consent to the police disclosing information held by the police about an applicant concerning three categories of information, namely:

(1)A record of an applicant’s convictions and any sentences, penalties or orders imposed as a result of conviction.

(2)Information that the police have about charges pending against the applicant that are relevant to the Registrar’s assessment of whether the applicant is a fit and proper person to hold a licence under the Real Estates Agents Act 2008 (the Act).

(3)A record of any discharges without conviction that are relevant to the Registrar’s assessment of whether the applicant is a fit and proper person to hold a licence under the Act.

[4] I invited submissions from counsel on how I should frame the terms of the declaration to define what unresolved charges, and what charges which have resulted in a discharge without conviction are relevant to the Registrar’s assessment of whether an applicant is a fit and proper person to hold a licence under the Act.

[5] I reconvened the hearing on 18 April 2016 to enable counsel to advance their submissions on the specific terms of the declaration.

Submissions

[6] Counsel for the respective parties adopted conflicting positions about how I

should frame the terms of the declaration.

[7] Mr O’Connor, counsel for Mr Domb, urged me to set a “high bar” for disclosure. He submitted that the declaration should be framed by reference to charges that carry a maximum penalty of seven years or more imprisonment. During the course of the hearing on 18 April 2016, Mr O’Connor modified his approach and accepted a lower threshold may be appropriate.

[8] Mr Hodge, counsel for the Real Estate Agents Authority (the Authority)

submitted that the declaration should encompass:

(1)a record of the applicant’s criminal convictions and any sentences, penalties or orders imposed as a result of conviction, as well…

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.

Keep reading for free

Create a free CaseChat account to read Domb v Real Estate Agents Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 767
Decision Date: 22 April 2016

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application for a declaratory judgment between Luke Domb and the Real Estate Agents Authority. The primary issue was determining the scope of information the Registrar could require applicants for real estate agent licenses to disclose. Specifically, the court had to decide what categories of charges and convictions should be disclosed to the Registrar to assess an applicant's suitability. This involved balancing the need for relevant information with the applicant's privacy rights.

The court found that the Registrar could request consent for police to disclose information about convictions, pending charges, and discharges without conviction. However, the court also had to decide the threshold for relevance of these charges. The plaintiff's counsel initially suggested a high bar, equating to charges carrying a maximum penalty of seven years or more. However, this was later modified to a lower threshold. The defendant's counsel argued for a broader scope, including all charges, pending charges, and discharges without conviction. The court ultimately concluded that charges relevant to the Registrar's assessment would be those in respect of which the applicant may elect trial by jury or infringement offences with penalties of $10,000 or more.

The court issued a supplementary judgment defining the terms of the declaration. The Registrar is entitled to information about convictions, pending charges, and discharges without conviction but only if those charges involve offences for which the applicant may elect trial by jury or infringement offences with penalties of $10,000 or more. This decision was implemented from 1 June 2016 to allow the Authority to amend its forms. The court made no order regarding costs, stating that the "honours are shared."

Orders