Ha v Real Estate Agents Authority - [2019] NZHC 1956

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2582

[2019] NZHC 1956

UNDER the Real Estate Agents Act 2008

BETWEEN

DUONG HAI HA

Appellant

AND

REAL ESTATE AGENTS AUTHORITY

First Respondent

AND

DAVID GRIFFITHS

Second Respondent

Hearing: 25 June 2019

Appearances:

S Judd for Appellant

M Mortimer for Real Estate Agents Authority D Griffiths for Respondents

Judgment:

12 August 2019

JUDGMENT OF WALKER J

This judgment was delivered by me on 12 August 2019 at 4.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

HA v REAL ESTATE AGENTS AUTHORITY & ANOR [2019] NZHC 1956 [13 August 2019]

Introduction

[1] The appellant, Mr Ha, appeals a decision of the Real Estate Agents Disciplinary Tribunal (the Tribunal).1 The Tribunal’s decision upheld a finding of unsatisfactory conduct by the Complaints Assessment Committee (412) (the Committee) of the Real Estate Agents Authority dated 9 November 2017.

[2] The Tribunal found Mr Ha guilty of unsatisfactory conduct under s 72 of the Real Estate Agents Act 2008 (the Act) in that Mr Ha had breached r 9.11 of the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009 (the 2009 Rules). The relevant rule provides:2
9.11 The licensee must not invite a prospective client to sign a sole agency agreement without informing the prospective client that if he or she enters into or has already entered into other agency agreements, he or she could be liable to pay full commission to more than one agent in the event that the transaction is concluded.

[3] The Tribunal found that Mr Ha did not meet his obligation to provide this advice to the second respondent, Mr Griffiths. Mr Ha’s challenge to this decision is two-pronged. First, he attacks the decision on the grounds that it contravenes natural justice. He says that a breach of r 9.11 was never put to him by the Complaints Investigator and was not the basis of the investigation nor the charges he faced. Consequently, Mr Ha submits there is no evidence directed to the issue of compliance with r 9.11.

[4] As this is an appeal where the substantive decision is challenged, rather than a judicial review proceeding, I am treating this ground as an assertion that the flawed process resulted in substantive error. In short, that if there was a breach of natural justice, the Tribunal’s decision (and the Committee determination before it) should be set aside for lack of sufficient evidential basis.

[5] As an alternative or subsidiary ground, Mr Ha contends that it can be inferred that on the balance of probabilities he did in fact inform Mr Griffiths of the potential risk of two commissions. He submits that the evidence is more consistent with

1 Ha v Real Estate Agents Authority (CAC 412) [2018] NZREADT 57.
2 The transactions at issue predate the commencement of the 2012 version of the Rules.

compliance with r 9.11 than non-compliance, so that regardless of the natural…

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: [2019] NZHC 1956
Decision Date: 12 August 2019

CaseChat Overview and Summary

Duong Hai Ha appeals a decision of the Real Estate Agents Disciplinary Tribunal which upheld a finding of unsatisfactory conduct against him by the Real Estate Agents Disciplinary Tribunal. The Tribunal found that Mr Ha did not meet his obligation to provide advice to a prospective client in accordance with r 9.11 of the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009. Mr Ha's challenge to this decision is two-pronged. First, he attacks the decision on the grounds that it contravenes natural justice. Second, he contends that it can be inferred that on the balance of probabilities he did in fact inform the prospective client of the potential risk of two commissions. The court considered the appeal and concluded that there was no breach of natural justice tainting the adjudication process. The court further concluded that regardless of the natural justice challenge, the Tribunal decision is correct because even if Mr Ha had at some stage before entering into an agency agreement relayed the statement set out in r 9.11 to the prospective client, his firm advice around entitlement to cancel defeated the intent of r 9.11 by undercutting the consumer warning. The court dismissed the appeal. The first respondent is entitled to costs and disbursements on a standard 2B basis. The second respondent is entitled to claim appropriate disbursements (out of pocket expenses only).

Orders