Lim v Real Estate Agents Authority
[2021] NZHC 689
•31 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1786
[2021] NZHC 689
UNDER Section 116 of the Real Estate Agents Act 2008 IN THE MATTER
Of an appeal against the Real Estate Agents Disciplinary Tribunal
BETWEEN
SUSAN LIM
Appellant
AND
REAL ESTATE AGENTS AUTHORITY
First Respondent
GARY STONE
Second Respondent
Hearing: 9 February 2021 Appearances:
The Appellant in person
M Hodge for the Real Estate Agents Authority G Stone the Second Respondent in person
Judgment:
31 March 2021
JUDGMENT OF POWELL J
This judgment was delivered by me on 31 March 2021 at 3.30 pm pursuant to
R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
LIM v REAL ESTATE AGENTS AUTHORITY [2021] NZHC 689 [31 March 2021]
[1] Susan Lim has appealed against a decision of the Real Estate Agents Disciplinary Tribunal (“the Tribunal”).1 The Tribunal overturned a decision of Complaints Assessment Committee 412 (“Committee 412”) which had determined to take no further action against Ms Lim on a complaint made by the second respondent, Gary Stone.
Relevant background
[2] Mr Stone’s complaint has had a prolonged and somewhat vexed history. It followed an earlier complaint made by Ms Lim against Mr Stone in 2015. Ms Lim’s complaint to the authority (and repeated to the New Zealand Qualifications Authority) was ultimately not investigated by either body.
[3] Instead, after Mr Stone became aware of Ms Lim’s complaint to the Authority, he made his own complaint against Ms Lim, noting:
[Ms Lim] has made untrue, and baseless allegations against me, comprising theft, corruption, assault, sexual abuse and abduction. These allegations are totally vindictive and designed to cause me as much embarrassment, humiliation and loss of reputation in the eyes of the REAA, NZQA and my employer, TAFE College.
[4] Mr Stone’s complaint was initially considered by Complaints Assessment Committee 408 (“Committee 408”) which decided not to inquire into Mr Stone’s complaint.2 On appeal by Mr Stone, the Tribunal accepted that the Committee had misunderstood Mr Stone’s complaint,3 that the actions complained of if true could amount to misconduct for the purposes of s 73(a) of the Real Estate Agents Act 2008, and that the Committee’s analysis was incorrect.4 It therefore allowed the appeal and referred the complaint back to the Committee (now Committee 412) to inquire into Mr Stone’s complaint.5
1 Stone v The Real Estate Agents Authority (CAC 412) [2020] NZREADT 42.
2 Complaint C13857 of Susan Lim, dated 13 July 2016.
3 Stone v The Real Estate Agents Authority (CAC 408) [2017] NZREADT 23 at [39].
4 At [36].
5 At [44].
[5] Committee 412 duly investigated and determined to take no further action on the complaint (“the second Committee decision”).6 The Committee essentially determined there was insufficient evidence to prove:7
[Ms Lim] had improper motives when she made the complaint or otherwise completely fabricated the allegations. Without that evidential foundation it is unlikely the Tribunal could find disgraceful conduct on the part of [Ms Lim].
[6] Given the outcome, Mr Stone appealed to the Tribunal for the second time.8 Allowing the appeal, the Tribunal concluded that:9
The Committee had [taken] into account an irrelevant matter in that they considered the credibility of the respective parties.
[7] At this point the Authority appealed to the High Court. In his judgment,10 Whata J concluded that the Tribunal erred in concluding Committee 412’s assessment function was limited to an assessment of Mr Stone’s evidence only, but rather Committee 412 was required to “evaluate all of the evidence before coming to a conclusion as to whether each would lay and then prosecute a charge”.11
[8] Justice Whata therefore allowed the appeal and referred the complaint back to the Tribunal for further consideration as to whether the second Committee decision was correct.
[9] The Tribunal duly reconsidered the second Committee decision (“the third Tribunal decision”) and concluded as follows:12
The Tribunal considers that the Committee erred in its decision. It wrongly exercised its discretion both in the areas of deciding whether there was a prima facie case and on the question of whether it would be in the public interest to prosecute Ms Lim. In regard to the former, it took into account matters that it ought not to have when it considered questions such as whether the account that Ms Lim gave was to be preferred to that of Mr Stone. It also erred in dealing with the complaint on the basis that there should be a reluctance to
6 Decision of Complaints Assessment Committee: Decision to take no further action in the matter of Complaint No. C13857 Susan Lim, 25 May 2018.
7 At [3.66].
8 Stone v The Real Estate Agents Authority (CAC412) [2019] NZREADT 20.
9 At [45].
10 The Real Estate Agents Authority v Stone [2019] NZHC 3499.
11 At [49].
12 Stone v Real Estate Agents Authority [2020] NZREADT 42 at [87].
accept that complainants of sexual abuse would be likely to make false complaints.
[10]In addition, the Tribunal went on to state:13
In regard to the public interest considerations, the Committee was wrong to take into account matters such as whether there should be a reluctance to initiate charges in cases where the subject matter included sexual abuse complaints because such charges are hard to prove and that if a complaint failed, it could create a "not unjustified perception in the industry that they should be sure before alleging misconduct and come aimed with conclusive proof, lest they face charges themselves".
It also erred by allowing its decision to be influenced by an assumption that because these types of cases were difficult to prove and, that being so, harm would result to the disciplinary process, unless a conservative approach should be taken to decisions to prosecute them.
We view this as amounting to a gloss or addition to the usual principles that inform the decision of prosecutorial agencies to bring charges. We do not agree that there is any need for such a change and that therefore the committee was in error when it took such matters into account.
[11] Allowing the appeal, the Tribunal once more referred Mr Stone’s complaint back to Committee 412 to “consider afresh its decision as to whether charges should be laid against [Ms Lim], and, if so, the content of such charges”.14
[12]It is the third Tribunal decision that is appealed by Ms Lim.
The present appeal
[13] Not unsurprisingly Ms Lim prefers the second Committee decision, given it concluded that no charges should be laid against her. Ms Lim did not however identify any basis upon which the third Tribunal decision was wrongly decided and indeed the matters advanced by Ms Lim both in writing and at the hearing were difficult to understand and/or nonsensical, with Ms Lim suggesting variously that the Tribunal had made false statements, had acted in collusion with Mr Stone and that Mr Stone had otherwise been responsible for a range of activities against Ms Lim.15
13 At [88]-[90].
14 At [92].
15 There was also some confusion when in the course of discussion with Ms Lim I inquired of her whether she still wished to proceed with the appeal. I understood that she did so and at the conclusion of the hearing reserved my decision. Subsequently Ms Lim wrote to the Court saying that she had been forced to withdraw her appeal which, obviously, was not the case.
[14] In contrast, while Mr Stone in his submissions generally supported the decision of the Tribunal, he suggested, despite not having filed a cross-appeal, that this Court should consider directing the Tribunal determine the complaint itself rather than remitting the complaint back to Committee 412 for a decision.
Discussion
[15] As Mr Hodge submitted in helpful background submissions on behalf of the Authority, the issues raised by Ms Lim on appeal do not challenge the Tribunal’s overall decision or indeed the reasons underlying that decision. Instead Ms Lim, at most, appears to take issue with background contextual matters that do not impact on the decision itself, and provide no basis for overturning the third Tribunal decision at issue.
[16] Having considered the third Tribunal decision, it is apparent that the Tribunal carefully considered the directions provided by Whata J as it was required to do and it was entitled to find the second Committee decision was in error for the reasons it has set out.
[17] In particular, the basis for Mr Stone’s complaint is that as Ms Lim’s complaint was false (“untrue and baseless”), it could therefore amount to misconduct under the Act. In particular, it is contended that a finding of a deliberately false complaint of the type alleged in this case by an agent “would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful” for the purposes of s 73(a) of the Act.
[18] As the Tribunal noted, Mr Stone’s evidence that Ms Lim’s complaint was false has not been meaningfully impugned, and it was therefore able to be satisfied that the requirement for a prima facie case existed.16 In reaching this conclusion, the Tribunal was also correct in noting it was not open to the Committee to conclude that because of the nature of Ms Lim’s complaint “it [was] unlikely that [she] was not telling the truth”.17 Nor that there was any other public interest reason for not laying charges
16 Stone v Real Estate Agents Authority [2020] NZREADT 42 at [61].
17 At [68].
against Ms Lim, and the matters taken into account by Committee 412 in the second Committee decision were therefore irrelevant.
[19] It follows that it was correct for the Tribunal to allow Mr Stone’s appeal. As the Authority pointed out however, it was not open to the Tribunal to make a finding of misconduct on the appeal given the issue before it was Committee 412’s decision to take no further action. There was therefore no error in referring Mr Stone’s complaint back to Committee 412 to make what will (hopefully) be a final decision about whether charges should be brought in relation to Mr Stone’s complaint.
Decision
[20]The appeal is dismissed.
[21] If any cost issues arise, the party seeking costs is to file a memorandum by 14 April 2021. Any response is then to be filed by 28 April 2021 following which I will determine the issue on the papers.
Powell J
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