Tucker v Real Estate Agents Authority

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002859 [2017] NZHC 1894

BETWEEN

GRANT TUCKER

Appellant

AND

REAL ESTATE AGENTS AUTHORITY

Respondent

Hearing:	4 April 2017
Counsel:	N M Pender for appellant M H Hodge and K H Lawson-Bradshaw for respondent
Judgment:	10 August 2017

JUDGMENT OF KATZ J

This judgment was delivered by me on 10 August 2017 at 11:00am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Meredith Connell, Auckland

Franks Ogilvie, Wellington

Introduction

[1]      Grant  Tucker  was  found  guilty  by  the  Real  Estate  Agents  Disciplinary Tribunal  (“Tribunal”)  of  two  charges  of  misconduct.1      The Tribunal  found  that Mr Tucker had pursued a dispute with his former employer, Johnathan Wills, and Mr Wills’ real  estate  agency,  Custom  Residential  Ltd,  in  a  manner  that  “would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful”.2    In a subsequent decision, the Tribunal concluded that the appropriate penalty was  to cancel Mr Tucker’s  real estate licence.3     Mr Tucker appeals both decisions.

[2]      Amongst other things, the Tribunal found that Mr Tucker:

(a)       sent a package containing faeces to David Beard, who was  Mr Wills’

and Custom Residential’s lawyer;

(b)sent anonymous letters to customers and employees of Custom Residential,  making  derogatory  and   offensive  allegations   about Mr Wills and Custom Residential;

(c)       left an offensive voice message on Mr Wills’ telephone; and

(d)sent two packages containing soiled sanitary pads and condoms to Mr Wills,  and  a  further  two  packages  with  the  same  contents  to Mr Beard.

[3]      The key issue on appeal is whether the Tribunal erred in finding, on the balance of probabilities, that Mr Tucker was the person who sent the four packages containing sanitary pads and  condoms  to  Messrs Wills  and  Beard.    Ms  Pender submitted, on behalf of Mr Tucker, that if that conduct (and also various communications that she argues were protected free speech) is excluded from the

Tribunal’s analysis, then Mr Tucker’s conduct would not reasonably be regarded as

1      Real Estate Agents Authority (CAC 301) v Tucker [2016] NZREADT 65 [Substantive Decision]

at [81].

2 At [80].

3      Complaints Assessment  Committees  301  and  403  v  Tucker  [2017]  NZREADT  4  [Penalty

Decision] at [47].

disgraceful by agents of good standing, or reasonable members of the public.   It necessarily  follows,  Ms  Pender  submitted,  that  the Tribunal  erred  in  cancelling Mr Tucker’s licence.

Approach on appeal

[4]      Mr Tucker’s  appeal  against  the Tribunal’s  finding  that  he  was  guilty  of misconduct is a general appeal.  The principles set out in Austin, Nichols & Co Inc v Stichting Lodestar accordingly apply. In that case the Supreme Court confirmed that on a general appeal the appellate court has the task of arriving at its own assessment of  the  merits  of  the  case.    Nevertheless,  in  cases  involving  an  assessment  of credibility of witnesses (as in this case), the advantage of the first instance court in hearing  directly from  the  witnesses  remains  a  matter  properly to  be  taken  into

account by the appellate…