Nottingham v Real Estate Agents Authority - [2023] NZCA 233

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 Appellants
AND	THE REAL ESTATE AGENTS AUTHORITY First Respondent
MARTIN RUSSELL HONEY Second Respondent

Court:	Goddard, Ellis and Dunningham JJ
Counsel:	Appellants in person S S McMullan and M Djurich for First Respondent D W Grove for Second Respondent
Judgment: (On the papers)	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…

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: [2023] NZCA 233
Decision Date: 14 June 2023 at 2.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered two applications for recall of a previous judgment in the case of Nottingham v Real Estate Agents Authority. The first application for recall was made by the appellants, Dermot Gregory Nottingham, Phillip Raymond Nottingham, and Robert Earle McKinney, alleging fraud, corruption, collusion, and bias against the judges who heard their appeal and against Goddard J, who replaced Simon France J after the original judgment was delivered. The second application was made by Martin Russell Honey, the second respondent, seeking additional orders for costs in both this Court and the High Court that had been overlooked in the original judgment.

The appellants' application for recall was based on extreme and unfounded allegations of judicial misconduct. The court found no basis for these claims and dismissed the application. The appellants also sought recusal of the judges involved, which the court deemed inappropriate given the lack of any proper basis for such a request.

The second respondent's application for recall focused on costs that were not addressed in the original judgment. The court found that the omission to address costs in relation to the cross-appeal and the High Court was an oversight that warranted correction through recall. The court agreed that Mr Honey should be awarded costs for the cross-appeal and that the High Court costs order should be set aside. Consequently, the court allowed Mr Honey's application for recall and amended the original judgment accordingly.

The court ordered that the appellants must pay Mr Honey's costs for his successful recall application, as well as the costs of the cross-appeal and the High Court proceedings, which were to be determined by the High Court in light of the Court of Appeal's judgment. The amended judgment included specific orders for these costs, ensuring that the appellants were liable for the costs of the cross-appeal and that the High Court would determine the appropriate costs in that court.

Orders