Edinburgh Realty Limited v Scandrett - [2016] NZHC 2898

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2016-412-26 [2016] NZHC 2898

IN THE MATTER OF
an appeal under s 116 of the Real Estate

Agents Act 2008

BETWEEN

EDINBURGH REALTY LIMITED First Appellant

BARCLAY SIEVWRIGHT, CLAYTON SIEVWRIGHT AND LANE SIEVWRIGHT

Second Appellants

AND

GLENYS ANNE SCANDRETT First Respondent

REAL ESTATE AGENTS AUTHORITY Second Respondent

Hearing: 20 September 2016

Appearances:

C Withnall QC for First and Second Appellants
B Gray for First Respondent
M Hodge for Second Respondent

Judgment:

1 December 2016

JUDGMENT OF MANDER J

[1] Following a complaint made by Ms Glenys Scandrett to the Real Estate Agents Authority (the Authority), a Complaints Assessment Committee (the Committee) found a real estate agency, Edinburgh Realty Limited (Edinburgh Realty), and three licensees, Barclay, Clayton and Lane Sievwright (the
Sievwrights), to have engaged in unsatisfactory conduct.1

1 Re Complaint No CB7002092 Real Estate Agents Authority Complaints Assessment Committee,
28 October 2013 [Committee decision].

EDINBURGH REALTY LIMITED & ANOR v SCANDRETT & ANOR [2016] NZHC 2898 [1 December 2016]

[2] Edinburgh Realty and the Sievwrights appealed this finding to the Real Estate Agents Disciplinary Tribunal (the Tribunal). Ms Scandrett cross-appealed the Committee’s decision dismissing her allegation of deliberate non-disclosure by the Sievwrights of defects in the property sold to her by the appellants. The Tribunal quashed the Committee’s findings and referred the case back to it with a direction it
formulate charges of misconduct.2 Edinburgh Realty and the Sievwrights have

appealed the Tribunal’s decision.3

Background

[3] In late November 2009, Ms Scandrett purchased a property in Maori Hill, Dunedin, (the property) from the trustees of the Sievwright Family Trust (the Trust). The trustees are the appellants, Barclay and Lane Sievwright, and Barclay’s wife, Ngaire Sievwright. Barclay, Lane and Clayton Sievwright are all licensed real estate sales persons employed by Edinburgh Realty. Each of them are contingent beneficiaries of the Trust.

[4] The Trust purchased the property in August 2006 as an addition to its residential rental portfolio. The property was tenanted. In June 2009 the trustees decided to sell the property when the existing tenancy expired. The property was listed for sale in October 2009. An information pack was produced by Edinburgh Realty which included brochures listing Lane and Clayton as Edinburgh Realty’s agents for the property, together with their contact details. A copy of the title and rating information was also included, both of which named the trustees as the owners of the property.

[5] On 21 November, Ms Scandrett inspected the property in the company of another Edinburgh Realty salesperson, Mr Matthew Shepherd. She was provided with a copy of the information pack. At the time of Ms Scandrett’s visit she noted the house had a musty smell. Mr Shepherd subsequently relayed Ms Scandrett’s observation to Barclay, who suggested that any offer be made subject to Ms Scandrett obtaining a satisfactory building report. Ms Scandrett agreed to
purchase the property for $335,000 subject to that condition.

2 Edinburgh Realty Ltd v Real Estate Agents Authority [2016] NZREADT…

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: [2016] NZHC 2898
Decision Date: 1 December 2016

CaseChat Overview and Summary

This appeal concerns an appeal by Edinburgh Realty Limited and the Sievwrights to the Real Estate Agents Disciplinary Tribunal of a decision of the Real Estate Agents Authority Complaints Assessment Committee (the Committee) that they had engaged in unsatisfactory conduct. The appellants were found to have failed to disclose that they or a person related to them may benefit from the transaction, and to have failed to have an appraisal undertaken and to enter into an agency agreement. The Real Estate Agents Authority (the Authority) appealed the Tribunal’s decision. The appellants appeal the Authority’s appeal. The issues for determination are whether the Tribunal had jurisdiction to remit the case back to the Committee and, if it did, whether it exercised its jurisdiction improperly and contrary to law. The appeal was allowed in part. The Tribunal had jurisdiction to remit the case back to the Committee, but it exercised its jurisdiction improperly by directing the Committee as to the charges it should lay. The matter was remitted back to the Committee for its reconsideration.

Orders