Nottingham v Real Estate Agents Authority - [2022] NZCA 488

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA406/2020
[2022] NZCA 488

BETWEEN	DERMOT GREGORY NOTTINGHAM PHILLIP RAYMOND NOTTINGHAM ROBERT EARLE MCKINNEY Appellants
AND	THE REAL ESTATE AGENTS AUTHORITY First Respondent
AND	MARTIN RUSSELL HONEY Second Respondent

Hearing:	19 September 2022
Court:	Simon France, Ellis and Dunningham JJ
Counsel:	Appellants in person S S McMullan and M Djurich for First Respondent D W Grove for Second Respondent
Judgment:	18 October 2022 at 11 am

JUDGMENT OF THE COURT

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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

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.
In 2012 one of the Authority’s Complaints Assessment Committees (the CAC) declined to take further action on the appellants’ original complaints.[1] The appellants appealed unsuccessfully to the Real Estate Agents Disciplinary Tribunal (the Tribunal)[2] 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.[3] 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.[4] But in a judgment dated 3 July 2020, Wylie J allowed the appellants’ appeal from that decision; the appeal was, again, reinstated.[5]
[1]Re Honey CAC 10057, 18 July 2012.
[2]Nottingham v Real Estate Agents Authority [2014] NZREADT 80 [Tribunal’s 2014 decision].
[3]Nottingham v Real Estate Agents Authority [2015] NZHC 1616 [Remittance decision]; and Nottingham v Real Estate Agents Authority [2017] NZCA 1 [Remittance appeal decision].
[4]Nottingham v Real Estate Agents Authority [2019] NZREADT 53 [Strike out decision].
[5]Nottingham v Real Estate Agents Authority [2020] NZHC 1561 [Strike out appeal decision].
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…

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: [2022] NZCA 488
Decision Date: 18 October 2022 at 11 am

CaseChat Overview and Summary

The appellants, Dermot Gregory Nottingham, Phillip Raymond Nottingham, and Robert Earle McKinney, were engaged in a long-running dispute with Martin Russell Honey and certain people associated with him about events that took place in 2009. The dispute began with complaints made by the appellants to the Real Estate Agents Authority (the Authority) in 2011. Despite various legal proceedings, including appeals to the Real Estate Agents Disciplinary Tribunal, the High Court, and the Court of Appeal, no final resolution has been reached. The appellants appealed the High Court’s decision reinstating their appeals in the Real Estate Agents Tribunal, seeking direction on the material that may be considered by the Tribunal and arguing that the Tribunal should not take into account earlier decisions of the District Court and the High Court regarding Dermot Nottingham’s failed private prosecution against Mr Honey. The appellants also appealed the High Court’s refusal to award them indemnity costs. Mr Honey cross-appealed the substantive decision overturning the Tribunal’s decision striking out the appeals.

The Court of Appeal dismissed the appellants' appeal and allowed Mr Honey's cross-appeal. The Court set aside the High Court decision reinstating the appellants’ appeals in the Tribunal and reinstated the Tribunal’s decision striking out the appeals. The appellants were ordered to pay Mr Honey's costs for a standard appeal on a band A basis and usual disbursements. The Court found that the continuation of the disciplinary matter, after ten years and in the circumstances described, was vexatious and an abuse of the Tribunal's processes. The Court concluded that the High Court was wrong to find that the appeals were not an abuse of process.

Orders