Nottingham v Real Estate Agents Authority - [2020] NZHC 1793

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002772

[2020] NZHC 1793

IN THE MATTER of an appeal under s 116 of the Real Estate Agents Act 2008

BETWEEN

DERMOT NOTTINGHAM, PHILLIP NOTTINGHAM, ROBERT MCKINNEY AND PROPERTY BANK REALTOR

LIMITED
Appellants

AND

REAL ESTATE AGENTS AUTHORITY

First Respondent

MARTIN RUSSELL HONEY

Second Respondent

Hearing: On the papers

Judgment:

23 July 2020

JUDGMENT OF WYLIE J

[Costs/Disbursements]

This judgment was delivered by Justice Wylie On 23 July 2020 at 2.00pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Meredith Connell, Auckland D Grove, Auckland

Copy to:
The appellants

NOTTINGHAM v REAL ESTATE AGENTS AUTHORITY [2020] NZHC 1793 [23 July 2020]

Introduction

[1] I refer to my substantive judgment in this matter issued on 3 July 2020.1 I allowed the appeal brought by the appellants and reinstated their appeals to the Real Estate Agents Disciplinary Tribunal (the Tribunal). I directed the Tribunal to proceed with the rehearing required by Thomas J in this Court and by the Court of Appeal as soon as is reasonably practicable.

[2] I recorded that the appellants had succeeded in their appeal but noted that they were litigants in person, and therefore prima facie not entitled to costs. I noted that they were entitled to recover their reasonable disbursements, and further observed that it was possible that the primary no costs rule could be relaxed if there were exceptional circumstances. I put in place a timetable for the filing of memoranda in this regard.

[3]I have now received those memoranda.

[4] The appellants seek “indemnity costs” for the hearing fees paid and also costs for photocopying “at the rate that lawyers receive them”. They also seek “preparation and arguing costs … at a moderate band”.

[5] The first respondent – the Real Estate Agents Authority – notes that it abided the Court’s decision, and submits that any order for costs and disbursements should not be made against it. It also suggests that the appellants have not addressed why the general rule against lay litigants being awarded costs should not be followed, and that no submissions have been made in relation to quantum.

[6] The second respondent – Mr Honey – opposes any order for costs. It is observed that Mr Honey has obtained substantial awards of costs against Mr Dermot Nottingham in the past, that those awards have not been paid and that Mr Dermot Nottingham has been bankrupted as a result. It is suggested that, while the appeal was successful, no fault lies with Mr Honey and in particular that the delays in obtaining the rehearing cannot be attributed to him.

Analysis

[7]I can see no justification for any award of costs under rr 14.2 – 14.11.

1 Nottingham v Real Estate Agents Authority [2020] NZHC 1561.

[8] The appellants were lay litigants. They appeared in person. The Supreme Court has confirmed that in such circumstances, the primary rule is…

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: [2020] NZHC 1793
Decision Date: 23 July 2020

CaseChat Overview and Summary

In Nottingham v Real Estate Agents Authority, the High Court of New Zealand heard an appeal under section 116 of the Real Estate Agents Act 2008, brought by Dermot Nottingham, Phillip Nottingham, Robert McKinney, and Property Bank Realtor Limited against the Real Estate Agents Authority and Martin Russell Honey. The appellants sought to challenge a decision of the Real Estate Agents Disciplinary Tribunal. The primary legal issue before the court was whether the appellants, who were lay litigants, were entitled to any costs or disbursements in relation to the appeal proceedings.

The court considered whether the primary rule that lay litigants should not be awarded costs could be departed from in exceptional circumstances, but found that no such circumstances existed in this case. The appellants had not provided any justification for departing from the primary rule. However, the court did find that the appellants were entitled to recover their reasonable disbursements. The court held that the hearing fees incurred were specific and reasonably necessary to the conduct of the proceeding, but reduced the award by 50% due to the appellants' unhelpful submissions during the hearing. The court also found that approximately 30% of the photocopying costs incurred were specific to, and reasonably necessary for the conduct of the proceeding, but directed that these costs were to be verified by the Registrar.

The court made an award of $640 in favour of the appellants to reimburse the hearing fees necessarily and reasonably incurred. The court directed that one third of this sum was to be met by the first respondent and two thirds by the second respondent. The court also made an award against the respondents, on a joint and several basis, for 30% of such disbursements (if any) incurred for photocopying as shall be verified by the Registrar. Finally, the court directed that monies paid as security for costs by Phillip Nottingham be returned to him, together with any accumulated interest.

Orders