Nottingham v Real Estate Agents Authority - [2020] NZHC 1561

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002772

[2020] NZHC 1561

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: 10 June 2020 (further materials requested by the Court provided by parties on 12, 15, 18 and 19 June and 1 July 2020)

Appearances:

Appellants each in person

M J Hodge for First Respondent
D W Grove for Second Respondent

Judgment:

3 July 2020

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 3 July 2020 at 12.00 midday 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 1561 [3 July 2020]

Introduction

[1] The appellants, Dermot Nottingham, Phillip Nottingham and Robert McKinney (jointly the appellants), appeal a decision of the Real Estate Agents Disciplinary Tribunal (the Tribunal) given on 26 November 2019 striking out their appeal proceedings before the Tribunal on the basis that they are vexatious and an abuse of process.1

[2] The first respondent – the Real Estate Agents Authority (the Authority) – abides the Court’s decision. It did, however, make submissions addressing points of principle.

[3] The second respondent, Mr Honey, supports the Tribunal’s decision and argues that it is correct.

Factual background

[4] The factual background to this matter has become complicated and it is now partly obscured by the mists of time. I set out the background as well as I can from the materials made available to me.

a)The complaints and the decisions given under the Real Estate Agents Act 2008

[5] In late September 2009, Property Bank Realtor Limited (PBRL) purchased a RE/MAX franchise. In October 2009 it began operating a real estate business known as RE/MAX Advantage Onehunga.

[6] The RE/MAX franchise had previously been owned by a company controlled by Mr Honey, Pure Realty Ltd. It had operated a real estate business in Royal Oak.

[7] On 25 February 2011, Mr Dermot Nottingham and PBRL lodged a complaint with the Authority pursuant to s 74 of the Real Estate Agents Act 2008 (the Act) about the conduct of Mr Honey and his company. In essence, the complaint alleged that Mr Honey had operated a website with RE/MAX branding after February 2010 and

1 Nottingham v Real Estate Agents Authority [2019] NZREADT 53.

that the web pages displayed listings held by Mr Honey and his company under his new franchise – a Ray White franchise. Mr Nottingham alleged that Mr Honey was continuing to operate the website using the RE/MAX franchise, when he no longer held a franchise from RE/MAX, that he was misleading the public into believing that he was operating a RE/MAX franchise when he was in fact operating a…

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 1561
Decision Date: 3 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the appellants, Dermot Nottingham, Phillip Nottingham, Robert McKinney and Property Bank Realtor Limited, appealed the decision of the Real Estate Agents Disciplinary Tribunal which had struck out their appeal proceedings as vexatious and an abuse of process. The appellants were seeking to appeal the decisions of the Real Estate Agents Authority's Complaints Assessment Committee, which had decided not to lay charges in respect of complaints made against Martin Russell Honey and his company, Pure Realty Ltd. The Tribunal had struck out the appellants' appeals on the basis that they were frivolous, vexatious and an abuse of process. The Court held that the Tribunal's decision was wrong. The Court held that the purpose of disciplinary proceedings is to ascertain whether a regulated person has met appropriate standards of conduct in the occupation concerned, and what may be required to ensure that, in the public interest, such standards are met in the future. The Court held that the Tribunal was not required to address the preliminary issue of whether the Committee erred in the exercise of its decision not to bring disciplinary charges. The Court held that the principle of finality was not breached and that the Tribunal was to proceed with the rehearing as soon as is reasonably practicable. The appellants were not entitled to costs but were entitled to recover their reasonable disbursements.

Orders