IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2016-404-2859 [2017] NZHC 54
BETWEEN GRANT TUCKER
Appellant
AND
REAL ESTATE AGENTS AUTHORITY Respondent
Hearing: 31 January 2017 Counsel:
N M Pender for Appellant
M Hodge and K Lawson-Bradshaw for RespondentJudgment:
1 February 2017
JUDGMENT OF HEATH J
This judgment was delivered by me on 1 February 2017 at 12.30pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Franks Ogilvie, WellingtonMeredith Connell, Auckland
TUCKER v REAL ESTATE AGENTS AUTHORITY [2017] NZHC 54 [1 February 2017]
The application
[1] Disciplinary proceedings were taken against Mr Tucker following a decision by two Complaints Assessment Committees established under s 75 of the Real Estate Agents Act 2008 (the Act). The Committees determined that two charges should be brought:
(a) The first decision was made by Complaints Assessment Committee
301 (Committee 301). It laid a charge of misconduct, on the grounds
that Mr Tucker had engaged in conduct of a “disgraceful” nature.1
This charge related to events in 2014 (the 2014 charge).
(b) The second was made by Complaints Committee 403 (Committee
403). It too alleged that Mr Tucker had engaged in disgraceful conduct. It involved events that occurred in 2015 (the 2015 charge).
[2] The 2015 charge was also the subject of an appeal against the decision of Committee 403 to lay the charge.2 On 9 June 2016, the Real Estate Agents Disciplinary Tribunal (the Tribunal) allowed joinder of the 2014 and 2015 charges and directed that the appeal in respect of the 2015 charge be heard at the same time.3
That meant the Tribunal could make a decision as to whether misconduct had been proved in respect of both the 2014 and 2015 charges if it were to dismiss the appeal against Committee 403’s decision to lay the 2015 charge. The hearing took place over three sitting days, in August 2016.
[3] On 27 September 2016 the Tribunal gave a reserved decision in which it
dismissed Mr Tucker’s appeal in respect of the 2015 charge and found both charges of disgraceful conduct proved.4 Following submissions on penalty that were made
1 Real Estate Agents Act 2008, s 73(a).
2 An appeal against a decision of that type may be brought under s 111 of the Real Estate Agents Act 2008. There was no separate challenge to the decision of committee 301 to lay the 2014 charge.
3 Real Estate Agents Authority v Tucker [2016] NZREADT 58.
4 Real Estate Agents Authority (CAC 301 and 304) v Tucker [2016] NZREADT 65, at paras [56]
and [81] (Hon P J Andrews, Chairperson, Mr G Denley, and Ms C Sandelin).
on the papers, the Tribunal delivered a second decision on 26 January 2017, in which
it ordered that Mr Tucker’s licence be cancelled with effect from that date.5
[4] Initially, Mr Tucker appealed to this Court against the findings of misconduct. Later, an appeal against the penalty decision was filed. Both appeals are set down for hearing together…
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- Case
- [2017] NZHC 54
- Decision Date
CaseChat Overview and Summary
The Court considered the balance between the hardship to Tucker and the need to protect the public. Tucker argued that an interim order was necessary to prevent undue hardship, as his business had already suffered due to the publicity surrounding the charges. The Real Estate Agents Authority contended that public protection was paramount and that any hardship caused by the cancellation of Tucker’s licence did not justify a stay. The Court adopted the principles set out by Fisher J in T v Preliminary Proceedings Committee of the Medical Council of New Zealand, which emphasised that the interests of justice should guide the decision.
Upon evaluating the strength of Tucker’s appeal, the Court concluded that the likelihood of overturning the Tribunal’s findings of misconduct was low. The Court also noted that the nature of Tucker’s conduct warranted maintaining the cancellation of his licence to protect the public. Consequently, the Court found that the interests of justice did not require an interim order to be made, and the application was dismissed.
In summary, the Court held that the potential risk to the public outweighed the hardship to Tucker, and thus denied the application for an interim order permitting Tucker to resume his real estate activities.
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