Quin v Real Estate Agents Authority - [2012] NZHC 3557

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-256 [2012] NZHC 3557

IN THE MATTER OF an appeal under s 116 of the Real Estate
Agents Act 2008

BETWEEN ANDREA QUIN Appellant

ANDTHE REAL ESTATE AGENTS AUTHORITY
First Respondent

ANDPHILIP ANDREW BARRAS AND SANDRA KNAPTON
Second Respondents

Hearing: 8 August 2012

Counsel: PJ Napier for Appellant
MJ Hodge and H McKenzie for First Respondent
Second Respondents in person

Judgment: 19 December 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 19 December 2012 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS
Keegan Alexander (Auckland) for Appellant Meredith Connell (Auckland) for First Respondent (Copies to Second Appellants in person)

QUIN V THE REAL ESTATE AGENTS AUTHORITY HC TAU CIV-2012-470-256 [19 December 2012]

Introduction

[1] On 2 April 2012, the Real Estate Agents Disciplinary Tribunal (“the Tribunal”) upheld a decision of the Complaints Assessment Committee (“the Committee”) that the appellant had committed unsatisfactory conduct under the Real Estate Agents 2008 (“the 2008 Act”).1 The Tribunal also upheld the Committee’s decision to grant relief in favour of the second respondents, but increased the quantum awarded by the Committee.

[2] The appellant now appeals against the decision of the Tribunal. The second respondents cross-appeal on the issue of quantum.

Facts

[3] On 9 November 2009, the second respondents visited a Tauranga property that was for sale by auction. The appellant was the listing agent who showed them the property. At the time she was a salesperson licensed under the Real Estate Agents Act 1976 (“the 1976 Act”). Upon the coming into force of the 2008 Act, the appellant became licensed as a salesperson thereunder.

[4] During the visit to the property, the second respondents asked the appellant to point out the boundaries. The appellant’s response indicated that the eastern boundary of the property was marked by a nine-wire fence. This meant that the entire driveway to the house on the property, including a gateway, was part of the property.

[5] It was indicated to the appellant at that time by the second respondents that they wanted a property where they could build a workshop from which they could operate a business and which had heavy vehicle access. The second respondents identified a suitable area on the property for the construction of the workshop with
good access for heavy vehicles using the existing entranceway.

1 Quin v Real Estate Agents Authority [2012] NZREADT 13.

[6] The second respondents purchased the property at auction on 25 November

2009 for $290,000 and took possession of it on 9 December 2009.

[7] Following settlement, and while undertaking preliminary earthworks for the accessway to the proposed workshop, the second respondents discovered that the actual eastern boundary to the property was some eight metres inside the nine-wire fence. This meant that the workshop could not be constructed at the chosen location because it was too close to the actual boundary. A different location for the workshop was chosen. However, that required…

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: [2012] NZHC 3557
Decision Date: 19 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Andrea Quin, appealed a decision of the Real Estate Agents Disciplinary Tribunal, which had upheld a decision of the Complaints Assessment Committee that she had committed unsatisfactory conduct under the Real Estate Agents Act 2008. The appellant argued that the penalty provisions of the 2008 Act did not apply to her conduct as it occurred before the 2008 Act came into force. The second respondents cross-appealed on the issue of quantum. The Court found against the appellant on the first ground of appeal, holding that the appellant’s unsatisfactory conduct was ongoing and continued after the 2008 Act came into force. The Court found in favour of the appellant on the second ground of appeal, holding that the 2008 Act did not empower a Committee to order a licensee to pay compensatory damages. The appeal was allowed, the decision of the Tribunal awarding damages against the appellant was quashed, and the second respondents’ cross-appeal was dismissed. The appellant was entitled to costs.

Orders