Domb v Real Estate Agents Authority - [2015] NZHC 3157

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000160 [2015] NZHC 3157

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: 2 December 2015

Counsel:

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

Judgment:

10 December 2015

JUDGMENT OF COLLINS J

Summary of judgment

[1] This judgment explains why I have exercised the jurisdiction to issue a declaration under the Declaratory Judgments Act 1908 concerning one aspect of the powers of the Registrar of the Real Estate Agents Authority (the Registrar). The declaration explains in broad terms the scope of the powers of the Registrar to require an applicant for a licence under the Real Estate Agents Act 2008 (the Act) to authorise the Registrar to obtain information about the applicant from the New Zealand Police (the police) in order to reach a decision about whether the person is a “fit and proper” person to hold a licence under the Act.

[2] I have concluded the Registrar can require an applicant to authorise the police to disclose to the Registrar information about an applicant’s “criminal history”.

DOMB v REAL ESTATE AGENTS AUTHORITY [2015] NZHC 3157 [10 December 2015]

[3] The term “criminal history” means in the context of this case three categories

of information about an applicant, namely:

(1) A record of an applicant’s convictions and any sentences, penalties or

orders imposed as a result of conviction.

(2)Information the police have about charges pending against an 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 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 am seeking further submissions on how I should define what charges covered by subparas 3(2) and (3) are relevant to the Registrar’s assessment of whether an applicant is a fit and proper person.

The issue

[5] The Act provides for the licensing of agents, branch managers and salespersons. This case concerns the licensing of an agent but the principles set out in this judgment also apply to other categories of licenses under the Act.

[6] An agent applies to be registered under the Act and also applies each year to have his or her licence renewed.

[7] The forms to be used by an applicant for a licence and by a licensee who applies to renew his or her licence are prescribed in Schedule 2 of the Real Estate Agents (Licensing) Regulations 2009 (the Regulations).1

[8] The Real Estate Agents Authority (the Authority) has modified the form that it requires a licensee to complete when applying to renew his or her licence (renewal
of licence form). In its renewal of licence form, the…

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: [2015] NZHC 3157
Decision Date: 10 December 2015

CaseChat Overview and Summary

Luke Domb applied for a declaration that the Registrar of the Real Estate Agents Authority (Registrar) was not entitled to require an applicant to sign a consent to disclose information held by the New Zealand Police (NZ Police) about the applicant in the terms set out in the police vetting document, which was part of the renewal of licence form. The Registrar was required to obtain information about the applicant's criminal history in order to decide if the applicant was a fit and proper person to hold a licence under the Real Estate Agents Act 2008 (the Act). Domb refused to authorise the disclosure of information about his criminal history and his application to renew his agent's licence was declined. The Registrar decided to renew Domb's agent's licence after Domb signed the police vetting document on a "without prejudice" basis. Domb sought a declaration that the Registrar was not entitled to require an applicant to sign the police vetting document. The Registrar was required to obtain information about the applicant's criminal history in order to decide if the applicant was a fit and proper person to hold a licence under the Act. The Registrar was entitled to require an applicant to authorise the police to disclose information held by the police about an applicant concerning three categories of information. Those categories of information were: (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 Act; and (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.

Orders