Patel v Real Estate Agents Authority - [2023] NZHC 2047

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 2047

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: 31 July 2023

Counsel (via VMR):

Appellant in person

J Ah Koy for First Respondent J Moore for Second Respondent

Judgment:

3 August 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1] The appellant, Mr Patel, has filed a substantive appeal against a decision (the Tribunal decision) of the Real Estate Agents Disciplinary Tribunal (the Tribunal).1 In that decision, the Tribunal dismissed an appeal brought by Mr Patel against a decision (the Committee decision) by Complaints Assessment Committee 1902 (the Committee). In a separate decision (the costs decision), the Tribunal also ordered

1 [Tribunal decision]. The Tribunal decision is subject to non-publication orders.

PATEL v REAL ESTATE AGENTS AUTHORITY [2023] NZHC 2047 [3 August 2023]

Mr Patel to pay costs of $11,560 as a contribution to Mr Phillips’ costs (the costs order).2

[2] This judgment deals with the three interlocutory applications argued before me on 31 July 2023.

[3] The first is an application by Mr Patel to adduce further evidence on appeal. This is opposed by Mr Phillips (the licensee), the second respondent. The Real Estate Agents Authority (the Authority) abides the Court’s decision on this issue, but filed submissions for the Court’s assistance and Ms Ah Koy spoke to those submissions. Mr Moore, for the second respondent, adopted all of Ms Ah Koy’s submissions.

[4] The second is an application from the licensee to strike out the appeal on the grounds that he has not been properly served, and that the appeal has no merit. This is opposed by Mr Patel. The Authority takes no position on this application.

[5] The third is an application by Mr Patel to stay the enforcement of the costs order made in the Tribunal’s costs decision, pending determination of the appeal. This is opposed by the licensee. The Authority abides the Court’s decision.

Background

[6] The background is set out in full in the Tribunal decision and summarised in the costs decision.3

Background and sale of the property

[7] Mr Patel owned a property (the property) with Mr Kirti Kumar (the co-owner). The property had leaks and other defects. The appellant sought to buy the half interest in the property that he did not own but was unable to reach agreement with the co-owner. The co-owners stopped paying the mortgage and the bank issued a notice of default. The co-owners did not rectify the default and on 24 October 2017, the High

2 [Costs decision]. The costs decision is also subject to non-publication orders.
3 Tribunal decision, above n 1, at [3]–[65]; and costs decision, above n 2, at [4]–[31].

Court ordered the sale of the property and authorised a solicitor (the solicitor) to sell it.

[8] The solicitor appointed the second respondent in…

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 2047
Decision Date: 3 August 2023

CaseChat Overview and Summary

In Patel v Real Estate Agents Authority, the High Court considered three interlocutory applications made in relation to an appeal against a decision of the Real Estate Agents Disciplinary Tribunal. Mr Patel, the appellant, appealed the Tribunal’s decision to dismiss his appeal against a decision of the Complaints Assessment Committee that no further action should be taken on his complaint against a real estate agent, Mr Phillips. Mr Patel’s appeal was opposed by Mr Phillips, the second respondent, and the Real Estate Agents Authority, the first respondent, took no position on the applications. The first interlocutory application was made by Mr Patel to adduce further evidence on appeal, namely two video files and a property floor plan. The application was dismissed because the evidence was not fresh, was not cogent, and was not relevant to any matter in issue on appeal. The second interlocutory application was made by Mr Phillips to strike out the appeal. The application was allowed because the appeal disclosed no reasonably arguable cause of action, and there was an element of abuse of process in the appellant’s attempt to leverage the Tribunal into reconsidering its decision on costs by filing an appeal and offering to withdraw it. The third interlocutory application was made by Mr Patel to stay the enforcement of the costs order made in the Tribunal’s costs decision, pending determination of the appeal. The application was dismissed because there was nothing to suggest that if a stay was not granted, Mr Patel’s appeal rights would be rendered nugatory. The appeal was struck out, and Mr Patel was ordered to make the payment of $11,560 as ordered by the Tribunal, payable immediately.

### Legal Principles

- The admission of further evidence on appeal is governed by r 20.16 of the High Court Rules 2016, which provides that a party may adduce further evidence only with the leave of the court, which may be granted if there are special reasons for hearing the evidence.
- The principles relating to strike out of proceedings are well-established. Rule 15.1 of the High Court Rules provides that the court may strike out all or part of a pleading if it discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; is likely to cause prejudice or delay; is frivolous or vexatious; or is otherwise an abuse of the process of the court.
- A stay of enforcement of a judgment or order pending determination of an appeal is governed by r 20.10 of the High Court Rules. Rule 20.10(2)(b) provides that the Court may, on application, order a stay of enforcement of any judgment or order appealed against pending determination of an appeal.

### Court’s Reasoning and Outcome

- The Court found that the videos and floor plans sought to be adduced by the appellant were not fresh, were not cogent, and were not relevant to any matter in issue on appeal. Therefore, the application to adduce further evidence was dismissed.
- The Court found that the appeal disclosed no reasonably arguable cause of action, and there was an element of abuse of process in the appellant’s attempt to leverage the Tribunal into reconsidering its decision on costs by filing an appeal and offering to withdraw it. Therefore, the application to strike out the appeal was allowed.
- The Court found that there was nothing to suggest that if a stay was not granted, the appellant’s appeal rights would be rendered nugatory. Therefore, the application for stay of enforcement pending determination of the appeal was dismissed.

### Final Orders

- The appeal is struck out.
- The appellant is to make the payment of costs of $11,560 to the second respondent immediately in terms of the Tribunal’s costs order.

Orders