Nottingham v Real Estate Agents Authority - [2021] NZCA 357

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA406/2020
[2021] NZCA 357

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

Court:	French and Cooper JJ
Counsel:	Appellants in person M J Hodge for First Respondent D W Grove for Second Respondent
Judgment: (On the papers)	30 July 2021 at 2.30 pm

JUDGMENT OF THE COURT

AThe application is dismissed.
B The cross-appeal has not been abandoned and remains on foot.
CThe appellants must pay the second respondent costs calculated for a standard interlocutory application on a band A basis, and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

By a memorandum dated 1 April 2021 the appellants, Mr Dermot Nottingham, Mr Phillip Nottingham and Mr Earle McKinney, applied to have this Court “deem” a cross-appeal brought by the second respondent, Mr Martin Honey, abandoned or to strike it out for “procedural recalcitrance”. The appellants are self-represented.
Mr Honey resists the appellants’ application. The first respondent, the Real Estate Agents Authority, abides the decision of the Court as to the status of the cross‑appeal.

Procedural background

The present application has been filed in the context of a long-running dispute between the parties, which has been afoot for some 10 years. In a judgment dated 3 July 2020, Wylie J allowed an appeal brought by the appellants against a decision of the Real Estate Agents Disciplinary Tribunal striking out their appeal proceedings before the Tribunal on the basis that they were vexatious and an abuse of process.[1] In a further judgment dated 23 July 2020, the Judge declined the appellants’ application for indemnity costs against the respondents.[2]
[1]Nottingham v Real Estate Agents Authority [2020] NZHC 1561.
[2]Nottingham v Real Estate Agents Authority [2020] NZHC 1793.
The appellants appealed against both decisions on 24 July 2020. On 5 August 2020, Mr Honey filed a cross-appeal against the first decision of Wylie J.
The appellants filed an application to dispense with security for costs under r 35(6) of the Court of Appeal (Civil) Rules 2005 (the Rules). That application was declined by the Deputy Registrar. The appellants applied for a review of that decision, which had the effect of deferring their obligation to pay security.
On 4 November 2020, Mr Grove, counsel for Mr Honey, emailed the Deputy Registrar stating:
I await service of the application to review.
In the meantime I assume my client’s obligation to pay the security will also be on hold. That is because if the review fails and the appeal is therefore struck out my client will need to reconsider the cross appeal.
On the same day, the Deputy Registrar replied, stating:
… unless an application for review of the decision on security for costs in the cross-appeal is made, that decision (including the payment date) remains. A cross-appeal is considered to be an independent appeal, which requires its own security…

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: [2021] NZCA 357
Decision Date: 30 July 2021 at 2.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Dermot Gregory Nottingham, Phillip Nottingham, and Earle McKinney against the Real Estate Agents Authority and Martin Russell Honey. The appellants sought to have the cross-appeal filed by Mr Honey deemed abandoned or struck out for procedural recalcitrance. The cross-appeal was filed in the context of a long-running dispute between the parties, which began over a decade ago. The primary legal issues were whether the cross-appeal could be deemed abandoned under rule 43 of the Court of Appeal (Civil) Rules 2005 and whether it could be struck out for procedural recalcitrance.

The Court found that security for costs for the cross-appeal was paid late, but there was no basis for claiming an extension of time had been granted by silence. The Court noted that a failure to pay security for costs does not result in an appeal being deemed abandoned under the Rules. The consequences of late payment are set out in rule 37, and there had not been any application for strike out under rule 37(1) when the security was paid. The Court also determined that rule 43 did not apply to cross-appeals, as the rules specifically apply certain provisions to cross-appeals, and a cross-appeal does not require a separate case on appeal. The Court concluded that the cross-appeal should not be treated as having been abandoned and that there was no proper basis on which the cross-appeal could be struck out as lacking in merit.

The application was dismissed, the cross-appeal remained on foot, and the appellants were ordered to pay the second respondent's costs calculated for a standard interlocutory application on a band A basis, and usual disbursements.

Orders