Patel v Real Estate Agents Authority - [2023] NZHC 2616

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-404-2124

[2023] NZHC 2616

IN THE MATTER of an appeal against the Real Estate Disciplinary Tribunal

BETWEEN

PRAKASH PATEL

Appellant

AND

REAL ESTATE AGENTS AUTHORITY

First Respondent

MARK PHILLIPS

Second Respondent

Hearing: On the papers

Counsel:

Appellant in person

M J Mortimer-Wang and J R Ah Koy for First Respondent D G Dewar for Second Respondent

Judgment:

19 September 2023

JUDGMENT OF CHURCHMAN J (COSTS)

Introduction

[1] On 3 August 2023, I issued my decision in these proceedings in respect of three interlocutory applications.1 I dismissed the appellant’s applications to adduce further evidence on appeal and to stay the enforcement of the costs order made in the Tribunal’s costs decision pending determination of the substantive appeal. I allowed the second respondent’s application to strike out the appeal, and struck the proceeding

1 Patel v Real Estate Agents Authority [2023] NZHC 2047.

PATEL v REAL ESTATE AGENTS AUTHORITY [2023] NZHC 2616 [19 September 2023]

out. I was satisfied there were no reasonably arguable grounds of appeal and the appeal was an abuse of process.2

[2] I encouraged the parties to agree on costs between themselves, failing which they were to file memoranda as to costs, which I would then deal with on the papers.3 The appellant and second respondent have not reached agreement as to costs.

[3] The first respondent abided the Court’s decision on the interlocutory applications. Neither the appellant nor the second respondent seeks costs against the first respondent. The first respondent does not seek costs and has made no submissions as to costs. The determination of costs in this matter is therefore only in respect of the appellant and second respondent.

Lateness of submissions as to costs

[4] In my decision, I directed that any applications for costs were to be filed within 14 days, with the appellant’s response to be filed and served within a further 14 days.4 The second respondent’s memorandum as to costs is signed and dated 17 August 2023, that is, within the 14 days allowed. The second respondent has advised the Court that it served its costs memorandum on the appellant at this time but for some reason overlooked filing it with the Court.

[5] The appellant however denies he was ever served with the second respondent’s memorandum. The appellant submits the second respondent has therefore not abided by the judgment and its memorandum should therefore not now be accepted, as this prejudices the appellant’s position, particularly given that the time to appeal the decision has also lapsed. He says counsel for the second respondent have not respected my judgment and, given the absence of any application for costs for a “very long time”, he has requested a refund of his costs payment deposited with the court.

2 At [92].
3 At [106].
4 At [106].

[6] The second respondent’s costs memorandum is signed and dated 17 August 2023. Other than what the parties…

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: [2023] NZHC 2616
Decision Date: 19 September 2023

CaseChat Overview and Summary

In the case of Patel v Real Estate Agents Authority, the High Court of New Zealand was asked to determine the issue of costs between the parties involved in an appeal against a decision of the Real Estate Disciplinary Tribunal. The appellant, Prakash Patel, had appealed against the Tribunal's decision to dismiss his complaint against the second respondent, Mark Phillips. The Court had previously dismissed the appeal and struck out the proceeding as being an abuse of process. The matter before the Court was the determination of costs between the appellant and the second respondent, with the first respondent not seeking any costs. The Court had to decide the appropriate quantum of costs to be awarded to the second respondent, considering the submissions made by both parties.

The legal issue before the Court was whether the second respondent was entitled to costs, and if so, what the appropriate quantum of those costs should be. The Court noted that costs are at the discretion of the Court and the overall objective is to achieve the outcome that best meets the interests of justice. The Court also considered that the second respondent was the successful party in this case and was therefore entitled to costs. The Court further considered the submissions made by the second respondent, who had advised that it would have sought costs on an indemnity basis but for the fact that actual costs as between solicitor and client were less than the 2B calculation in this case.

After considering the submissions made by both parties, the Court found that the second respondent was entitled to costs and that the appropriate quantum of those costs was the actual costs incurred by the second respondent, which totalled $14,769.90, plus disbursements of $550. The Court also ordered the appellant to pay the second respondent $6,000, which had been lodged with the Court as security for costs on the second respondent's application. The Court found that the appellant had acted improperly and unnecessarily in commencing and continuing these proceedings against the second respondent, and that total indemnity costs were not unduly high in this case.

The Court ordered that the appellant is to pay to the second respondent its costs of $14,769.90, plus disbursements of $550. The Registrar is directed to pay the sum of $6,000 lodged with the Court as security for costs to the second respondent's solicitors.

Orders