Real Estate Agents Authority v A - [2017] NZHC 2929

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF RESPONDENT PROHIBITED BY S 201
OF THE CRIMINAL PROCEDURE ACT 2011.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF REAL ESTATE AGENCY EMPLOYING THE RESPONDENT PURSUANT TO S 202 CRIMINAL PROCEDURE ACT
2011.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2017-412-000032 [2017] NZHC 2929

BETWEEN
REAL ESTATE AGENTS AUTHORITY

Appellant

AND

A Respondent

Hearing: 13 September 2017

Appearances:

M Hodge for the Appellant
C S Withnall QC and M Ryan for the Respondent

Judgment:

28 November 2017

JUDGMENT OF NATION J

[1] In July 2016, the respondent pleaded guilty to 26 charges of aiding and abetting a company to apply PAYE deductions for a purpose other than payment to the Commissioner of Inland Revenue, and five charges1 of aiding and abetting the
same company to fail to furnish GST returns.2 The total amount of unpaid tax was

1 This appeal arises indirectly out of those proceedings. In those proceedings, orders were made for the suppression of the respondent’s name and also that of the real estate agency which she was working with. Because of the need to recognise those orders, neither the respondent nor the agency are referred to by name in this judgment.
2 Tax Administration Act 1994, ss 143A and 143B.

REAL ESTATE AGENTS AUTHORITY v A [2017] NZHC 2929 [28 November 2017]

$233,866.31. The offending occurred between July 2013 and September 2015. Between October 2013 and October 2015, the respondent spent approximately
$278,000 on online gambling.

[2] On 2 September 2016, the respondent was sentenced to five months’ community detention and 200 hours’ community work. She was also ordered to pay reparation of $233,866.31.

[3] In August 2016, the respondent applied to renew her salesperson licence under the Real Estate Agents Act 2008 (the Act). The appellant, the registrar of the Real Estate Agents Authority (the registrar), declined her application for renewal on the basis she was not satisfied the respondent was a fit and proper person to be licenced as a sales person.

[4] The respondent subsequently applied for a review of the registrar’s decision

to the Real Estate Agents Disciplinary Tribunal (the Tribunal).

[5] In a decision of 1 March 2017, the Tribunal granted the respondent’s application and renewed her salesperson licence.3 The registrar appeals against that decision.

Previous decisions

[6]
In her decision of 14 September 2016, the registrar said:

The offences you were convicted of required knowledge of wrong doing on

your part. Licence holders under the Act have a number of obligations

which require them to act with the highest level of honesty and integrity. While tax evasion is not a crime of dishonesty under section 2(1) of the

Crimes Act 1961 these convictions mean that … you are not a fit and proper

person to hold a licence. It is essential that consumers are able to rely on the honesty and integrity of real estate agents in respect of…

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: [2017] NZHC 2929
Decision Date: 28 November 2017

CaseChat Overview and Summary

The appeal arose out of the decision of the Real Estate Agents Disciplinary Tribunal to renew the salesperson's licence of a woman who had been convicted of 26 charges of aiding and abetting a company to apply PAYE deductions for a purpose other than payment to the Commissioner of Inland Revenue, and five charges of failing to furnish GST returns. The total amount of unpaid tax was $233,866.31. The respondent was sentenced to five months' community detention and 200 hours' community work. In August 2016, she applied to renew her salesperson licence under the Real Estate Agents Act 2008. The registrar of the Real Estate Agents Authority declined her application on the basis she was not satisfied the respondent was a fit and proper person to be licenced as a sales person. The respondent applied for a review of the registrar's decision to the Tribunal which granted her application and renewed her salesperson licence. The registrar appealed against that decision. The appeal was brought pursuant to s 116 of the Act which provides a general right of appeal for any decision of the Tribunal to the High Court. The appeal was conducted on the record before the Tribunal. There was no dispute that the principles affirmed by the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar applied in respect of appeals against licencing decisions under the Act. However, counsel emphasised different aspects of the Supreme Court's judgment. The appeal was ultimately against the Tribunal's assessment as to whether the respondent was a fit and proper person to hold a salesperson's licence. The appeal Court had the responsibility of arriving at its own assessment of the merits of the case. It was not enough for the Tribunal to say it was satisfied the respondent was a fit and proper person. The Court had to consider the evidence before the Tribunal, the submissions made for the parties and the relevant statutes and rules. The Court was not at a disadvantage in making its own assessment of the merits of the appeal as it was not necessary for the Court to make any findings of fact or degree. The Court was able to evaluate the case on its own facts and merits, the importance of being forward-looking and considering all relevant matters in the round. The Court had to consider whether the Tribunal was wrong in the conclusion it reached. In its judgment, the Court found that the Tribunal had not given appropriate weight to the seriousness and recent nature of the respondent's convictions for dishonesty offences. The Tribunal had inadequately considered the impact of the respondent's financial pressures and incentives that might put consumers at risk in their dealings with the respondent as a sales person. The Tribunal had inadequately considered the respondent's underlying psychological vulnerabilities in its assessment. The Court allowed the appeal, cancelled the order made by the Tribunal approving her licencing as a sales person under the Act and reinstated the decision made by the registrar declining her application.

Orders