Nottingham v Real Estate Agents Authority - [2015] NZHC 1616

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3010 [2015] NZHC 1616

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

Agents Act 2008

BETWEEN

DERMOT NOTTINGHAM, PHILLIP NOTTINGHAM AND ROBERT EARLE MCKINNEY

Appellants

AND

THE REAL ESTATE AGENTS AUTHORITY

First Respondent

AND

MARTIN HONEY Second Respondent

Hearing: 10 - 11 June 2015

Appearances:

Appellants in person
L J Clancy for the First Respondent
D Grove for the Second Respondent

Judgment:

10 July 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 10 July 2015 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Meredith Connell, Auckland. Foy & Halse, Auckland

NOTTINGHAM, NOTTINGHAM AND MCKINNEY v THE REAL ESTATE AGENTS AUTHORITY [2015] NZHC 1616 [10 July 2015]

Introduction

[1] The appellants, Messrs Dermot Nottingham, Phillip Nottingham and Robert McKinney, appeal the decision of the Real Estate Agents Disciplinary Tribunal (the Tribunal). The Tribunal’s decision was as a result of an appeal from the decision of the Complaints Assessment Committee (the Committee) of the Real Estate Agents Authority (the Authority), also brought by the appellants.

[2] The essence of the appeal is that the Tribunal erred in its decision to dismiss the appeal against the Committee’s failure to bring charges of misconduct under the Real Estate Agents Act 2008 (the Act); the Committee and the Tribunal acted corruptly; and the Tribunal “corruptly, dishonestly and immorally” reached its “palpably false decision” based on “dishonest misreporting” the evidence before it. The appellants seek compensation and full costs. They also seek an order that the behaviour of the Committee, the Tribunal and witnesses should be referred to the New Zealand Police.

[3] There are two appeals. The first appeal relates to a complaint brought by Mr Dermot Nottingham that the second respondent, Mr Martin Honey, operated a fraudulent RE/MAX website through his company, Pure Realty Ltd, from the date Martin Honey changed from a RE/MAX to a Ray White franchise, 13
February 2009, to the date it was taken down on 18 April 2010.

[4] The second appeal relates to a complaint made by Messrs Dermott Nottingham, Phillip Nottingham and Robert McKinney, on 29 June 2011, concerning what they considered to be a false complaint to the Authority made by Mr Honey on
28 February 2011.

Background

[5] The appellants, through their company, Property Bank Realtor Ltd, purchased an RE/MAX franchise and in October 2009 began operating as RE/MAX Advantage Onehunga. Mr Honey, through Pure Realty Ltd, was the former owner of the RE/MAX franchise operating in Royal Oak.

[6] Mr Honey’s website continued to operate live web pages with RE/MAX branding. The web pages displayed listings held by his company under his new Ray White franchise. Property details on both the RE/MAX pages and Ray White branded pages were accessible via a Google search of the words “RE/MAX Onehunga” or the specific entry of the URL, or within pages of the website.

[7] What is in dispute 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: [2015] NZHC 1616
Decision Date: 10 July 2015

CaseChat Overview and Summary

The appeal against the Tribunal's decision was allowed. The Tribunal had failed to take into account relevant considerations. This arose in two ways. First, the Tribunal misunderstood the significance of Mrs West's testimony, evidenced by the misstatement of the date when Mr Honey was alerted to the problem by Mrs West. The Tribunal's advantage of having seen and heard the witnesses meant that, on its own, this might not be sufficient for a successful appeal. It might well be that the Tribunal concluded that, despite Mrs West's evidence, Mr Honey did not fully appreciate the problem until April 2010. Secondly, and crucially, the fresh evidence should have been taken into account. The fact the Tribunal stated there was no need to detail the evidence demonstrates that the Tribunal did not take it into account. Because the fresh evidence categorically contradicted the evidence of Messrs Honey and Taka, whose credibility was central to a decision as to whether there was evidence of misconduct, the failure to take it into account was an error. The parties were directed to file submissions (limit of five pages) within 15 working days as to what should happen in the case of a successful appeal.

Orders