Nottingham v Real Estate Agents Authority
[2023] NZCA 233
•14 June 2023 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA406/2020 [2023] NZCA 233 |
| BETWEEN | DERMOT GREGORY NOTTINGHAM, PHILLIP RAYMOND NOTTINGHAM AND ROBERT EARLE MCKINNEY |
| AND | THE REAL ESTATE AGENTS AUTHORITY |
| MARTIN RUSSELL HONEY Second Respondent |
| Court: | Goddard, Ellis and Dunningham JJ |
Counsel: | Appellants in person |
Judgment: | 14 June 2023 at 2.00 pm |
JUDGMENT OF THE COURT
AThe appellants’ application for recall of this Court’s judgment is declined.
BThe second respondent’s application for recall of this Court’s judgment is allowed. The judgment is recalled, and amended as set out in the schedule to this judgment.
CThe appellants must pay costs to the second respondent in respect of his application for recall as a standard application on a band A basis, with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
The applications before this Court
On 18 October 2022 this Court delivered a judgment determining an appeal by the appellants and a cross-appeal by the second respondent, Mr Honey (CA judgment).[1]
[1]Nottingham v Real Estate Agents Authority [2022] NZCA 488 (CA judgment).
This Court now has before it two applications for recall of the CA judgment:
(a)An application by Mr Honey seeking recall of certain aspects of the CA judgment, so that additional orders relating to costs in this Court and the High Court can be made.
(b)An application by the appellants for recall of the CA judgment “for fraud and corruption involving collusion by counsel and the three judges involved being specifically [Simon] France, Dunningham and Ellis JJ”.
The appellants have sought recusal of the three judges who heard the appeal: Simon France, Ellis and Dunningham JJ. They have also sought recusal of Goddard J in response to procedural directions made by him in connection with the recall applications.
After the date on which the CA judgment was delivered, Simon France J retired as a Judge of this Court. Goddard J has replaced him on this panel.
The Court of Appeal (Civil) Rules 2005 provide for interlocutory applications to be determined on the papers unless a Judge directs otherwise.[2] The appellants sought an oral hearing of their recall application. By minute dated 3 February 2023 Goddard J declined to direct an oral hearing, as the appellants had not identified a sufficient reason to depart from the usual approach of dealing with recall applications on the papers. As contemplated by that minute, the recall applications have been heard and determined on the papers.
Background
[2]Court of Appeal (Civil) Rules 2005, rr 19B(2)(b), 27A and 27C.
The background to the appeal was summarised as follows in the CA judgment:[3]
[1] The appellants have been engaged in a long-running and multifaceted dispute with Mr Martin Honey and certain people associated with him about events that took place in 2009. The dispute began with complaints made by the appellants in 2011 about Mr Honey (who was then a real estate agent) to the Real Estate Agents Authority (the Authority) but there has been a proliferation of related litigation—both criminal and civil—since then.
[2] In 2012 one of the Authority’s Complaints Assessment Committees (the CAC) declined to take further action on the appellants’ original complaints. The appellants appealed unsuccessfully to the Real Estate Agents Disciplinary Tribunal (the Tribunal) but had partial success on further appeals to the High Court and this Court; the appeal from the CAC was remitted back, on a limited basis, to the Tribunal. As will be explained in more detail shortly, no further progress was made in that forum until 2019, when the Tribunal granted Mr Honey’s application to strike out the appeal on the grounds that it was—or had become—vexatious and an abuse of process. But in a judgment dated 3 July 2020, Wylie J allowed the appellants’ appeal from that decision; the appeal was, again, reinstated.
[3] Despite this success, the appellants have appealed the High Court’s decision. They say they need direction from this Court as to the material that may (and may not) be considered by the Tribunal in determining the appeals before it. Most particularly, they take issue with the references made by both the Tribunal and the High Court to earlier decisions of the District Court and the High Court regarding Dermot Nottingham’s failed private prosecution against Mr Honey. They seek a direction that, when determining their reinstated appeal, the Tribunal may not take into account these matters.
[4] The appellants also appeal the High Court’s subsequent refusal to award them indemnity costs on their successful appeal.
[5] Mr Honey has cross-appealed the substantive decision overturning the Tribunal’s decision striking out the appeals.
The CA judgment
[3]CA judgment, above n 1 (footnotes omitted).
The appellants’ appeal was unsuccessful. Mr Honey’s cross-appeal was allowed. This Court made the following orders:
AThe appeal is dismissed.
BThe second respondent’s cross appeal is allowed.
CThe High Court decision reinstating the appellants’ appeals in the Real Estate Agents Tribunal is set aside and the Tribunal’s decision striking out the appellants’ appeals is reinstated.
DThe appellants must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements.
Recall applications: relevant principles
The general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal.[4] A decision to recall will only be made in exceptional circumstances. Recall of a judgment may be appropriate where some procedural or substantive error has occurred which would result in a miscarriage of justice if it were not addressed by recalling the judgment.[5]
[4]S (SC39/2017) v R [2022] NZSC 7 at [3].
[5]At [3], citing Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [27].
The categories of exceptional circumstance which justify a judgment being recalled are three-fold:[6]
(a)where since the hearing there has been an amendment to a relevant statute or regulation, or a new judicial decision of relevance and high authority;
(b)where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; or
(c)where for some other very special reason justice requires that the judgment be recalled.
[6]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
The third category includes cases where a material issue properly put before the Court is not addressed, excluding a slip or minor error, and failure to address that issue would result in a miscarriage of justice.[7]
The appellants’ recusal application
[7]Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [34].
The appellants’ recall application is described as being made “in relation to a conspiracy involving collusion and corruption of judicial actors in the Court of Appeal of New Zealand being specifically Judges Dunningham, Ellis, [Simon] France and Goddard”. The recusal application is based on the same sweeping allegations of corruption and misfeasance against the Judges who sat on the appeal, and against Goddard J. The allegations proceed on the basis that the approaches adopted in this Court’s judgment and in procedural directions made by Goddard J were so perverse that they could only be explained by conspiracy and corruption.
This line of reasoning is misconceived. The fact that judges have ruled against a litigant in previous cases is not an indication of bias or an indication of an appearance of bias.[8] Still less is it an indication of conspiracy or corruption. There was no proper basis for making these extreme allegations: it was irresponsible and inappropriate for the appellants to do so.
[8]See Creser v Creser [2015] NZSC 116 at [6]; N v M [2015] NZSC 185 at [4]–[5]; Prasad v Indiana Publications (NZ) Ltd [2018] NZSC 48 at [3], n 4; and Dunstan v NZ Police [2023] NZSC 58 at [6].
Putting to one side the appellants’ extreme and irresponsible allegations of serious judicial misconduct, no basis has been identified for recusal of any of the judges assigned to hear these applications. Unless a judge is required to recuse themselves, they have a duty to sit on a matter to which they have been assigned. The Judges assigned to hear these applications must therefore do so, and must not recuse themselves.
The appellants’ recall application
The appellants’ recall application is based on extreme allegations of fraud and corruption. As already explained, those allegations are misconceived and irresponsible.
The appellants have not identified any well-founded basis for recall of the CA judgment in its entirety. Their application for recall must be dismissed.
Mr Honey’s recall application
The application
Mr Honey applied to recall the CA judgment in relation to two issues concerning costs. His application was originally made by memorandum dated 20 October 2022.[9] The appellants took issue with this approach, arguing that there was no valid interlocutory application by Mr Honey before this Court.
[9]The filing fee for an interlocutory application was subsequently paid by Mr Honey.
It is common for interlocutory applications to be made by memorandum, rather than as a formal interlocutory application, pursuant to a direction given by a judge before or after the memorandum is filed.[10] We would have been willing to make such a direction, if required, in the interests of the efficient administration of justice. No useful purpose would be served by requiring a formal application to be filed in addition to counsel’s memorandum setting out the orders sought, and the grounds on which they were sought. However a formal interlocutory application was filed by Mr Honey with his submissions on 28 February 2023, so no direction is required.
[10]Court of Appeal (Civil) Rules, rr 27A–27B.
Mr Honey notes that costs were awarded to him for a standard appeal on a band A basis, with usual disbursements.[11] That award of costs appears to relate to the appeal brought by the appellants. The Court did not make any order in relation to the costs of the cross-appeal. Nor did the Court make any order in relation to costs awarded in the High Court. Mr Honey submits that these omissions appear to be oversights, which can and should be remedied by recalling the CA judgment and adding orders dealing with costs of the cross-appeal and costs in the High Court.
[11]CA judgment, above n 1, at [64].
Mr Honey seeks costs in this Court of $21,339.00 calculated in accordance with a schedule attached to his application.
Mr Honey seeks an order that the appellants pay his costs in the High Court on a 2B basis.
Submissions of other parties
Mr Honey’s application for recall was opposed by the appellants. However the written submissions filed by the appellants did not advance any comprehensible submissions that engaged with the criteria for recall, apart from reiterating their extreme conspiracy theories. We were not assisted by the material filed by them.
Counsel for the first respondent, the Real Estate Agents Authority (the Authority), filed a memorandum noting that Mr Honey’s application for recall does not affect the Authority insofar as costs in respect of the cross-appeal to this Court are concerned. However as explained below, the High Court directed that one-third of the costs award made in that Court in favour of the appellants be paid by the Authority.[12] The Authority submitted that if this Court sets aside or varies the High Court costs award, that order should extend to the costs paid by the Authority to the appellants. The Authority otherwise abide the decision of this Court.
Decision — costs in respect of cross-appeal
[12]Nottingham v Real Estate Agents Authority [2020] NZHC 1793 at [18] (High Court costs judgment).
The cross-appeal was successful, and Mr Honey was entitled to an award of costs in respect of that cross-appeal in accordance with the principle that costs follow the event. No reason was identified not to apply that principle and make an award of costs in respect of the cross-appeal.
However the CA judgment did not expressly address the question of costs in relation to the cross-appeal. This appears to have been an oversight.
The omission to deal with the costs of the cross-appeal is properly addressed by way of recall. A party should not be put to the expense of seeking leave to appeal to the Supreme Court in order to remedy an oversight of this kind. Nor is leave likely to be granted on a case-specific issue of modest significance of this kind.[13]
[13]See Senior Courts Act 2016, s 74.
We therefore make an order recalling the judgment, to add an order that the appellants must pay Mr Honey costs in respect of the cross-appeal for a standard appeal on a band A basis, with usual disbursements.
If the amount of costs payable by the appellants to Mr Honey in respect of the appeal and cross-appeal cannot be agreed by the parties, it will be determined by the Registrar. However we note that:
(a)Mr Honey is entitled to costs for commencing the cross-appeal (1.5 days), and is entitled to recover the filing fee in respect of the
cross-appeal of $1,100. However the schedule provided appears to incorrectly include an allowance for commencement of the appeal brought by the appellants (an item recoverable by an appellant or
cross-appellant, but not by a respondent).(b)The schedule filed by Mr Honey also includes an allowance for preparation of the case on appeal. That would normally be an item claimed by the appellant who prepares the case on appeal, not by a respondent. However it appears that Mr Honey took responsibility for preparing supplementary volumes of the case on appeal for the purposes of the cross-appeal, in which case that item is properly claimable by him.
Counsel for Mr Honey should prepare a revised costs schedule, and seek to agree the amount payable with the appellants. In the absence of prompt agreement, counsel may submit their schedule to the Registrar to determine the amount of costs payable in respect of the appeal and cross-appeal before this Court.
Decision — costs in the High Court
Before the High Court, the appellants were successful.[14] The Judge proceeded on the basis that the appellants, who were self-represented, were not entitled to costs but were entitled to recover their reasonable disbursements.[15] In a separate judgment delivered on 23 July 2020, the Judge made an award of $640 in favour of the appellants against both respondents to reimburse the appellants for hearing fees necessarily and reasonably incurred. He directed that one-third of that sum was to be met by the Authority, and two-thirds by Mr Honey.[16]
[14]Nottingham v Real Estate Agents Authority [2020] NZHC 1561.
[15]At [72], citing McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 355 at [55] et seq.
[16]High Court costs judgment, above n 12, at [18].
The Judge also made an award against the respondents, on a joint and several basis, for 30 per cent of any disbursements incurred for photocopying as verified by the Registrar.[17]
[17]At [19]. It appears the appellants did not make any claim for further disbursements.
In circumstances where an appeal (or cross-appeal) succeeds, and the result in the court below is reversed, any costs award made in the court below will also generally be set aside. This Court’s normal practice is not to make an award of costs in the court below. Rather, the question of costs in that court is left to be determined by that court in light of this Court’s judgment.
That approach to costs in the High Court was appropriate in this case, in light of Mr Honey’s successful cross-appeal.
However it appears this Court overlooked dealing with the question of costs before the High Court in the CA judgment. That is a matter which can properly be addressed by recalling the judgment, and making the order that ought to have been made as a consequence of the substantive outcome on the cross-appeal.
The High Court costs order against both respondents should be set aside. We do not consider that this Court should fix costs in the High Court: they should be fixed by the High Court in the usual way
Result
The appellants’ application for recall of the CA judgment is declined.
Mr Honey’s application for recall of the CA judgment is allowed. The CA judgment is recalled, and amended as set out in the schedule to this judgment.
Mr Honey seeks costs in respect of his application for recall. The application has succeeded, and costs should follow the event in the usual way. We do not consider that any separate award of costs is appropriate in respect of the appellants’ unsuccessful recall application, as it was not necessary for the respondents to engage with it to any material extent.
The appellants must pay costs to Mr Honey in respect of his application for recall as a standard application on a band A basis, with usual disbursements.
Solicitors:
Meredith Connell, Auckland for First Respondent
Foy & Halse, Auckland for Second Respondent
Schedule: amendments to CA judgment
The CA judgment is amended by adding the following two orders in the result band after order D:
EThe appellants must pay the second respondent costs in respect of the cross-appeal for a standard appeal on a band A basis, with usual disbursements.
FThe costs order made in the High Court is set aside. Costs in the High Court are to be determined by that Court in light of this Court’s judgment.
The CA judgment is amended by adding the following paragraphs after paragraph [64]:
[65]The appellants must pay the second respondent costs in respect of the cross-appeal for a standard appeal on a band A basis, with usual disbursements.
[66]The costs order made in the High Court is set aside. Costs in the High Court are to be determined by that Court in light of this Court’s judgment.
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