Nottingham v Real Estate Agents Authority - [2017] NZCA 1

IN THE COURT OF APPEAL OF NEW ZEALAND

CA437/2015
[2017] NZCA 1

BETWEEN

DERMOT GREGORY NOTTINGHAM, PHILLIP NOTTINGHAM AND ROBERT EARLE MCKINNEY
Appellants

AND

THE REAL ESTATE AGENTS AUTHORITY
First Respondent

MARTIN RUSSELL HONEY
Second Respondent

Hearing:	19 October 2016
Court:	Asher, Heath and Dobson JJ
Counsel:	P Nottingham and R E McKinney in person M J Hodge for First Respondent D W Grove for Second Respondent
Judgment:	27 February 2017 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed in part.
B The order made in the High Court is supplemented by a further direction that the Tribunal re-hearing the appeal is not to include any members of the Tribunal who sat on the first appeal.
CIn all other respects, the appeal is dismissed.
D The appellants are jointly and severally liable to pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Table of Contents

Para No

History of the dispute
Procedural matters
Challenges to a tenable basis for appeal
The factual background
Approach adopted by the High Court
Criticisms of the High Court analysis

Rejection, misunderstanding of evidence
Tribunal’s conduct during the hearings
Tribunal’s conduct after the hearings
Cumulative weight of grounds for alleging bias

Entity to which matter should be referred back and the terms for doing so
Summary
Result

[1]
[12]
[20]
[24]
[35]
[40]
[51]
[56]
[65]
[72]

[75]
[86]
[88]

History of the dispute

This is an appeal from the terms on which the High Court dealt with an appeal from the Real Estate Agents Disciplinary Tribunal (the Tribunal) in dismissing a challenge to a decision by a Complaints Assessment Committee (CAC) not to pursue complaints made to it by the appellants. The Tribunal was chaired by former District Court Judge Paul Barber QSO, sitting with two lay members. Mr Barber had died by the time this appeal was argued.
The appellants are all associated with Property Bank Realtor Limited (PBRL). In that capacity, the appellants have had long-standing and bitter disputes with the second respondent, Mr Honey.
In 2009, PBRL purchased a RE/MAX real estate agency franchise based in Onehunga, Auckland. Mr Honey’s company formerly owned a RE/MAX franchise operating in Royal Oak, Auckland. Sometime after PBRL’s acquisition, the appellants discovered that the website for Mr Honey’s business continued to have web pages with RE/MAX branding after he had switched to a Ray White franchise.
In early 2011, Mr Dermot Nottingham lodged a complaint on behalf of PBRL with the Real Estate Agents Authority (the REAA) alleging misconduct by Mr Honey in operating a website with RE/MAX branding for which he no longer had a franchise, and misleading the public into believing he was operating as RE/MAX when he was operating as a Ray White franchise. Mr Dermot Nottingham claimed that Mr Honey’s actions had caused the appellants’ business substantial losses.
In accordance with the procedure provided for under the Real Estate…

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: [2017] NZCA 1
Decision Date: 27 February 2017 at 2.30 pm

CaseChat Overview and Summary

The appeal was brought by the appellants against the Tribunal’s refusal to lay charges of misconduct against the second respondent. The appeal was then taken to the High Court, and the High Court allowed the appeal in part and remitted the matter back to the Tribunal for reconsideration. The appellants appealed to this Court on the basis that the High Court had wrongfully rejected their claims of bias against the Tribunal. This Court allowed the appeal only to the extent of supplementing the orders made in the High Court by adding a term that the re-hearing before the Tribunal was to be determined by a Tribunal constituted by persons other than those who determined the first appeal. In all other respects, the appeal was dismissed. The appellants were jointly and severally liable to pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements.

The Court found that the High Court had applied the wrong standard for appellate reconsideration of the issues raised by the appeal, but the adoption of the wrong standard did not affect the outcome in the High Court. The Court also found that the Tribunal’s refusal to consider the content of the new evidence once on notice of how starkly contradictory it was of Mr Honey’s explanation, the misinterpretation of Mrs West’s evidence as to the time at which she brought the RE/MAX branding to Mr Honey’s attention, and the Tribunal’s conduct after the hearings, did not establish that the Tribunal was biased against the appellants. The Court held that the allegation of bias was not made out.

Orders