Dyas v Diel - [2013] NZHC 2645

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2027 [2013] NZHC 2645

UNDER the District Courts Act 1947

IN THE MATTER

of an appeal against a decision of the
District Court at Auckland

BETWEEN

CAROLE ANN DYAS Appellant

AND

MANISHA SAINI DIEL and JEAN- PHILIPPE DIEL as trustees of the VALENCE FAMILY TRUST Respondents

Hearing: 13 August 2013

Appearances:

DJG Cox for the Appellant
P Wright for the Respondents

Judgment:

10 October 2013

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 10 October 2013 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors / Counsel:
Mr DJG Cox, Rennie Cox, Solicitors, Auckland
Mr P Wright, Barrister, Shortland Chambers, Auckland
Mr Boon Toh (respondents’ instructing solicitor), Solicitor, Auckland

DYAS v DIEL [2013] NZHC 2645 [10 October 2013]

[1] In 2004 the respondents appointed a company called Realty Excellence Limited (Realty) as agent on the sale of a residential property they owned. The appellant was a real estate agent employed by Realty and she was the agent who dealt directly with the respondents. An agreement for sale and purchase was entered at an auction and was settled a month later. The purchaser, Ms Pepper, was another real estate agent employed by Realty. In the District Court the Judge held that Ms Pepper’s status had not adequately been disclosed to the vendors by the appellant at the auction. This finding is no longer in issue.

[2] Two issues arise on the appeal. One is whether the breach of fiduciary duty by the appellant on the night of the auction was causative of loss to the respondents arising out of the sale to Ms Pepper. The second is whether the appellant was bound by a statutory obligation under s 63(3) of the Real Estate Agents Act 1976 (the Act) to repay commission to the respondents.

[3] There is a cross-appeal by the respondents. The respondents contend that the amount of the loss assessed by the Judge for breach of fiduciary duty was too low.

Sections 63 and 64 of the Act

[4] Sections 63 and 64 of the Act provide, so far as material:

63 Purchase or lease by agent voidable

…

(2) No partner or employee of a real estate agent and no officer of a company that is a real estate agent shall, without the consent on the prescribed form of the principal of the real estate agent, directly or indirectly,—

(a) Purchase or take on lease, or be in any way concerned or interested, legally or beneficially, in the purchase or taking on lease of any land or business which the real estate agent of whom he or she is a partner or by whom he or she is employed, or of which he or she is an officer, is commissioned (at the instigation of the principal or otherwise) by any principal to sell or lease; or

(b) Sell or lease to his or her spouse, civil union partner,…

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.

Continue reading Dyas v Diel

Details

AGLC: Dyas v Diel [2013] NZHC 2645
Case: [2013] NZHC 2645
Decision Date: 10 October 2013

CaseChat Overview and Summary

The appeal was against a decision of the District Court that the appellant, Carole Ann Dyas, a real estate agent, had breached fiduciary duties owed to the respondents, Saini and Diel, who were the vendors of a residential property. The appellant had been the agent who dealt with the respondents on a day to day basis. There was also an appeal against a finding of liability to repay commission under a statutory obligation. The appeal was allowed and the cross-appeal by the respondents was dismissed. The judgments against the appellant were set aside and judgment was entered for the appellant dismissing all claims against her. The primary reason for allowing the appeal was that the appellant’s breach of fiduciary duty at the auction was not material to the loss claimed by the respondents. The appellant had breached a duty of disclosure at the auction, but this breach was not material to the loss claimed by the respondents because they were fully informed of their statutory rights, and their right to avoid the contract, before settlement. The respondents proceeded to settlement on the basis of information which they were entitled to have at the auction and in full knowledge of their rights. The loss they claimed was a loss arising from sale at the price agreed at the auction. The appellant’s liability to repay commission was a liability of the real estate agent appointed by the principal, not the liability of the appellant. The appellant was not a party to the agency agreement and she did not receive any commission.

Orders