Nottingham v Real Estate Agents Authority - [2015] NZHC 1998

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3010 [2015] NZHC 1998

IN THE MATTER OF
of an appeal under s 116 of the Real Estate

Agents Act 2008

BETWEEN

DERMOT NOTTINGHAM, PHILLIP NOTTINGHAM AND ROBERT EARLE MCKINEY

Appellants

AND

THE REAL ESTATE AGENTS AUTHORITY

First Respondent

AND

MARTIN HONEY Second Respondent

On the papers

Judgment:

21 August 2015

JUDGMENT OF THOMAS J AS TO DISPOSITION AND COSTS

This judgment was delivered by me on 21 August 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

NOTTINGHAM & ORS v THE REAL ESTATE AGENTS AUTHORITY [2015] NZHC 1998 [21 August 2015]

Background

[1] By my decision of 10 July 2015, I allowed the appeal of the appellants, Messrs Dermot Nottingham, Philip Nottingham and Robert McKinney against the Real Estate Agents Disciplinary Tribunal’s (the Tribunal) decision dismissing appeals against the Complaints Assessment Committee’s (the Committee) failure to bring charges.

[2] Given the absence of submissions on the next steps to be taken, I directed the parties to file memoranda on whether the Court should remit the matter back to the Tribunal either to direct the Committee to lay charges of misconduct against the second respondent or for the Tribunal to consider the impact of Mrs West’s testimony and the fresh evidence. I also directed the parties to address the issue of costs, noting litigants in persons are not usually entitled to recover costs.

[3] This decision deals with those residual matters.

Submissions

The appellants

[4] The appellants have appealed to the Court of Appeal. The essence of the appeal relevant to the present decision is that, although there was no finding of bias on the part of the Tribunal, there should have been a finding of “grave incompetency” which, in the appellants’ submission, “is a form of misconduct nevertheless”.

[5] The appeal has a bearing on the current issue, the appellants say. There is a risk that by remitting the matter back to the Tribunal before the issue of misconduct is determined by the Court of Appeal, there will be further misconduct, incompetence or error on the part of the Tribunal. The essence of the appellants’ submission is that it is not possible to get a fair investigation or hearing before the Tribunal because they are “disliked” by the panel. As I understand it, the appellants say the High Court should determine the charges but, in any event, none of the

matters should proceed to the Tribunal until the question of misconduct has been determined by the Court of Appeal.

[6] On the issue of costs, the appellants say they should be awarded the costs of disbursements, including expert reports. As well, as I understand it, the appellants say there should be a 50/50 split of the costs incurred by them.

The Real Estate Agents Authority (the first respondent)

[7] Mr Clancy submits the appropriate order would be for the Court to remit the case back to the Tribunal for it to consider…

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: [2015] NZHC 1998
Decision Date: 21 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the appellants, Dermot Nottingham, Philip Nottingham, and Robert McKinney, sought to appeal the Real Estate Agents Disciplinary Tribunal's decision not to bring charges against Martin Honey, the second respondent. The Real Estate Agents Authority, the first respondent, opposed the appeal. The court was required to decide whether the matter should be remitted back to the Tribunal to consider the impact of fresh evidence and testimony, and if so, who should bear the costs of the appeal.

The court found that the matter should be remitted back to the Tribunal to consider the impact of Mrs West's testimony and the fresh evidence. The court did not accept the appellants' submission that the High Court should determine the charges, as the Tribunal is better placed to deal with the matter due to its expertise and specialist nature. The court found that it should not put the matter on hold until the issue of misconduct on the part of the Tribunal is determined by the Court of Appeal. The court also found that costs lie where they fall, as the appellants were litigants in person and there was nothing before the court to support the view that this case should be treated as an exception to the general rule that lay litigants are not entitled to costs. The court found that the appellants were, however, entitled to reasonable disbursements in the discretion of the court.

The court remitted the matter back to the Tribunal to consider the impact of Mrs West's testimony and the fresh evidence. The court found that costs lie where they fall, and that disbursements in these proceedings are to be agreed between the parties, with leave reserved to revert to the court if the parties are unable to agree on the matter.

Orders