Nottingham v Real Estate Agents Authority - [2015] NZHC 529

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3010 [2015] NZHC 529

IN THE MATTER
of an appeal pursuant to ss 113 and 116 of

the Real Estate Agents Act 2008

BETWEEN

DERMOT NOTTINGHAM and PROPERTY BANK REALTOR LIMITED Appellants

AND

THE REAL ESTATE AGENTS AUTHORITY

First Respondent

MARTIN HONEY Second Respondent

Hearing: 18 March 2015

Appearances:

D Nottingham in person and for Property Bank Realtor Limited
L J Clancy for First Respondent
D Grove for Second Respondent

Judgment:

23 March 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 23 March 2015 at 12.30pm
pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Register

Date:

Solicitors: Meredith Connell, Auckland
Foy & Halse, Auckland

Copy to: D Nottingham,Auckland

NOTTINGHAM v THE REAL ESTATE AGENTS AUTHORITY [2015] NZHC 529 [23 March 2015]

Introduction

[1] Mr Nottingham and Property Bank Realtor Limited appeal a decision of the

Real Estates Agents Disciplinary Tribunal dated 13 October 2014.

[2] The Tribunal in turn was sitting on appeal from a decision of the Complaints

Assessment Committee, which decision was dated 18 July 2012.

Background

[3] In late September 2009 Property Bank Realtor Limited purchased a REMAX franchise, and in October 2009 it began operating a real estate business known as REMAX Advantage Onehunga.

[4] The franchise had previously been owned by a company controlled by the second respondent, Mr Honey. The company had operated a real estate business in Royal Oak.

[5] In early 2011 Mr Nottingham complained to the Real Estate Agents Authority pursuant to s 74 of the Real Estate Agents Act 2008 (“the Act”). He asserted that Mr Honey, who is a licensed real estate agent, continued to operate live web pages with REMAX branding after February 2010, and that those web pages displayed listings held by Mr Honey’s company under a new franchise – Ray White. Mr Nottingham alleged that Mr Honey was continuing to operate a website utilising the REMAX franchise when he no longer held a franchise from REMAX, that he was misleading the public into believing that he was operating a REMAX franchise when he was in fact operating a Ray White franchise, and that as a result, Property Bank Realtor Limited had lost “thousands of dollars” in commission over a 14 month period.

[6] This complaint was allocated number READT 20/12. It was accepted by the Real Estate Agents Authority on 26 April 2011, and it was referred to a Complaints Assessment Committee.

[7] Mr Honey then complained to the Authority about Mr Nottingham’s conduct

in the course of pursuing complaint READT 20/12. Mr Nottingham, his brother

Phillip Nottingham and a Mr McKinney in return responded by submitting a cross complaint, asserting that the allegations made by Mr Honey were false, and made with dishonest intent. This cross complaint was allocated number READT 49/12.

[8] The Committee considered the complaints on 24 May 2011 and determined to enquire into them. The Committee obtained and considered an investigation report and it conducted…

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.

Keep reading for free

Create a free CaseChat account to read Nottingham v Real Estate Agents Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NZHC 529
Decision Date: 23 March 2015

CaseChat Overview and Summary

Dermot Nottingham and Property Bank Realtor Limited appeal a decision of the Real Estate Agents Disciplinary Tribunal, which dismissed appeals against a decision of the Complaints Assessment Committee. The Complaints Assessment Committee had found that no action was warranted on complaints made by the appellants against Martin Honey. The appellants appeal this decision, asserting that the Tribunal acted corruptly, dishonestly, and immorally. They seek to adduce further evidence, including evidence from computer experts. They also seek to have the substantive hearing heard by a full court, and that any important questions of law be referred to the Court of Appeal. The appellants also seek that any related review proceedings be consolidated with the appeal. They also seek a full transcript of the Tribunal hearing, and that this be supplied in electronic form. The court finds that the appellants have failed to demonstrate that the additional evidence they seek to adduce is relevant to the appeal, or that it was not available to them earlier by the exercise of reasonable diligence. The court also finds that there is no reason to order that the appeal be heard by a full court, or that any important questions of law be referred to the Court of Appeal. The court orders that a full transcript of the Tribunal hearing be supplied in electronic form. The court also makes directions as to the filing of points on appeal, and the preparation of the bundle of documents for the substantive hearing. Costs are reserved.

Orders