Real Estate Agents Authority v Catley - [2020] NZHC 1904

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002432

[2020] NZHC 1904

UNDER Section 116 of the Real Estate Agents Act 2008

IN THE MATTER

Of an appeal against the decision of the Real Estate Agents Disciplinary Tribunal

BETWEEN

REAL ESTATE AGENTS AUTHORITY

Appellant

AND

BRUCE CATLEY and TIMOTHY JOHN BOYLE

First Respondents

MARGARET FLANNINGAN and ROBERT FLANNIGAN

Second Respondents

Hearing: 5 May 2020

Counsel:

M J Hodge and R W Belcher for appellant

No appearance for respondents (attendances excused)

Judgment:

31 July 2020

JUDGMENT OF KATZ J

This judgment was delivered by me on 31 July 2020 at 3:00 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Auckland Copy to: [Respondents]

REAL ESTATE AGENTS AUTHORITY v CATLEY & ORS [2020] NZHC 1904 [31 July 2020]

Introduction

[1] The Real Estate Agents Act 2008 (“Act”) sets out a process for dealing with formal complaints about registered real estate agents (“licensees”). As part of that process, complaints may be referred to a Complaints Assessment Committee.

[2] Amongst other things, the Complaints Committee may make a determination of unsatisfactory conduct against a licensee. If such a determination is made, the usual practice of Complaints Committees is to notify the parties of the unsatisfactory conduct decision (with reasons) and give them the opportunity to make submissions on what orders, if any, should be made under s 93 of the Act.

[3] The issue raised by this appeal is when time starts running for the filing of an appeal against an unsatisfactory conduct determination. Is it:

(a)when the parties are notified of the unsatisfactory conduct determination; or

(b)when the parties have been notified of both the unsatisfactory conduct determination and any orders subsequently made under s 93?

[4] The Real Estate Agents Disciplinary Tribunal found that (a) is the correct interpretation of the relevant statutory provisions. The appellant, the Real Estate Agents Authority, submits that the correct answer is (b).

Should the Court decline to determine the appeal on the basis that it is moot?

[5] Following the Tribunal’s ruling that the appeals were filed out of time (the decision under appeal) the first respondents sought leave to file late appeals under s 111(1A) of the Act. That subsection enables late appeals to be filed, within 60 working days of the date of notice of the decision being given, if the Tribunal is satisfied that exceptional circumstances prevented the appeal from being made in time.

[6] The Tribunal accepted that the first respondents’ failure to file their appeals within time was in reliance on advice from the Authority and an understanding of the

law as set out in a previous Tribunal decision, Edinburgh Realty Ltd v Real Estate Agents Authority.1 These circumstances were held to be “exceptional” and the first respondents were accordingly given leave to file late appeals.

[7] Given this background, the Authority accepts that the present appeal is moot as between the parties, as the…

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: [2020] NZHC 1904
Decision Date: 31 July 2020

CaseChat Overview and Summary

The Real Estate Agents Authority appealed against a decision of the Real Estate Agents Disciplinary Tribunal. The Tribunal had found that the first respondents, Bruce Catley and Timothy Boyle, were guilty of unsatisfactory conduct, and that their appeals against that finding were out of time. The Authority contended that the Tribunal erred in its interpretation of s 111 of the Real Estate Agents Act 2008, which provides the time limits for appealing against a determination by a Complaints Committee. The Authority submitted that the time for filing an appeal against an unsatisfactory conduct determination starts to run when the parties are notified of the determination, rather than when they are notified of both the determination and any penalty orders made under s 93 of the Act. The Tribunal had previously held, in Edinburgh Realty Ltd v Real Estate Agents Authority, that the time for filing an appeal starts when the parties are notified of the determination. However, in this case, the Tribunal concluded that amendments made to s 111 in 2018 required a different interpretation, and that the time for filing an appeal starts when the parties are notified of both the determination and any penalty orders. Katz J held that the Tribunal erred in its interpretation of s 111. The 2018 amendments did not change the correct interpretation of the section, which is that the time for filing an appeal starts when the parties are notified of both the unsatisfactory conduct determination and any penalty orders made under s 93 of the Act. The appeal was allowed, and the first respondents' appeal against the liability decision of the Complaints Committee was held to have been filed within the 20 working day time limit prescribed by s 111(1) of the Act.

Orders