Soft Technology Jr Limited v Jones Lang Lasalle Limited

[2022] NZCA 115

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA164/2021
CA630/2021
CA719/2021
 [2022] NZCA 115

BETWEEN	SOFT TECHNOLOGY JR LIMITED Appellant
AND	JONES LANG LASALLE LIMITED Respondent

Court:	Clifford J
Counsel:	D R Bigio QC and A C Eager for Appellant M C Harris and A G H Bradley for Respondent S A Armstrong and G S A Morrison for Applicant to Intervene
Judgment: (On the papers)	5 April 2022 at 3 pm

JUDGMENT OF CLIFFORD J

The interlocutory application by the Real Estate Agents Authority to intervene in these appeals is granted.  The respondent is to file its substantive submissions responding both to the appellant and to the Authority by Friday 8 April 2022, with up to an additional five pages allowed to respond to the Authority’s substantive submissions.  All questions of costs are reserved.

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REASONS

1. This is an interlocutory application by the Real Estate Agents Authority to intervene in these appeals.  The Authority makes that application because the appeals involve, amongst other things, the interpretation of s 126 of the Real Estate Agents Act 2008.  The Authority says that — contrary to the finding of the High Court — s 126 requires a written agency agreement signed by the agent and their client to be in existence before an agent begins work on which or as a result of which commission is payable.[1] 

   [1]Jones Lang Lasalle Ltd v Soft Technology Jr Ltd [2021] NZHC 351 at [108(e)].

2. Given the Authority’s statutory role as the relevant regulator, and the significance of that point of statutory interpretation for the scheme of the Real Estate Agents Act, this is a proper case for a grant of leave to be made to allow the Authority’s intervention.

3. The Authority filed its application on 23 March 2022.  These appeals are set down to be heard on 27 April 2022.  The respondent opposed the application by reason, amongst other things, of its late filing.

4. Constructive discussions between the parties provided for the basis of agreed conditions to apply if the application were to be granted.  When agreed, those conditions were:

   (a)the respondent was to file and serve its submissions opposing the Authority’s application to intervene by 5 pm on Friday 25 March 2022;

   (b)counsel were available for a telephone conference the following week if that would assist the Court;

   (c)without prejudice to the respondent’s opposition, the Authority was to file its substantive submissions by Friday 1 April 2022 (limited to seven pages with no objection to the Authority elaborating orally if the Court allowed, provided it did not impede on the respondent’s time); and

   (d)the respondent’s substantive submissions responding to both the appellant and the Authority were to be filed by Friday 8 April 2022, with up to an additional five pages allowed to respond to the Authority’s substantive submissions.

5. The Authority filed its substantive submissions on the appeals on Friday 1 April as provided for in those conditions. 

6. Furthermore, at a telephone conference held yesterday morning the respondent, on the basis of those conditions, advised whilst it did not consent to the Authority’s application, it no longer opposed it. 

7. The application to intervene is granted accordingly.  The respondent is to file its substantive submissions responding both to the appellant and to the Authority by Friday 8 April 2022, with up to an additional five pages allowed to respond to the Authority’s substantive submissions. 

8. The Authority is encouraged to focus its submissions on the disputed point of statutory interpretation outlined above.

9. All questions of costs as regards this application are reserved.

Solicitors:
Hesketh Henry, Auckland for Appellant
Gilbert Walker, Auckland for Respondent