Tucker v Real Estate Agents Authority
[2017] NZHC 54
•1 February 2017
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 on 4 April 2017. On 27 January 2017, the day after the Tribunal’s penalty decision was given, Mr Tucker applied to this Court under s 117 of the Act6 for an order permitting him to carry out real estate agency work pending determination of the appeals. I heard that application urgently on 31 January. As I had not read all the papers by that time I reserved my decision overnight.
[5] Because of the need to give a prompt decision, I shall not set out in full the competing contentions. Rather, I limit my analysis to the background facts, the relevant law and an evaluation of whether it is appropriate for a stay to be granted.
Facts
[6] Given the nature of the present application, only a short summary of relevant facts is required. I give an outline of the background to identify relevant findings of fact made by the Tribunal in its decisions. I take my summary from the decision in which misconduct was found to be proved.
[7] Mr Wills is a director and shareholder of a company called Custom Residential Ltd. Mr Tucker was employed by that company as a contract sales person between January and July 2011. He became embroiled in a dispute about payment of commission to him on a particular property sale. It appears that Mr Wills had been a party to a decision that a commission earned on the sale of the property would be split with another real estate agency, thereby causing financial prejudice to Mr Tucker.
[8] The 2014 charges involved allegations that Mr Tucker had, in February, March and May 2014, sent letters, emails and packages to Mr Wills and another
5 Real Estate Agents Authority (CAC 301 and 304) v Tucker [2017] NZREADT 47 (Hon P J Andrews, Chairperson, Mr G Denley, and Ms C Sandelin)
6 Set out at para [12] below.
person, Mr Beard. The package was alleged to have contained faeces and broken glass. The letters were alleged to contain derogatory and offensive comments. There was also an allegation that he left an offensive voice message for Mr Wills.
[9] The 2015 charges involved conduct between 13 March 2015 and 28 October
2015 which consisted of allegations of verbal abuse of Mr Wills, sending offensive or derogatory letters to clients of Mr Wills’ company and posting an inappropriate comment on Mr Wills’ company’s Facebook page. In addition, Mr Tucker was alleged to have sent packages to both Mr Wills and Mr Beard containing soiled sanitary pads and a condom.
[10] Both charges of disgraceful conduct were based on the premise that Mr Tucker pursued his dispute with Mr Wills and his former employer “in a manner that would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful”.7
[11] Mr Tucker elected to represent himself at the August 2016 hearing at which the 2014 and 2015 charges were heard. After the charges were found to have been proved, he engaged counsel, Ms Pender, to make written submissions as to penalty. Ms Pender appeared in support of the present application.
Legal principles
[12] The application is brought under s 117 of the Act:
117 High Court may make interim order
(1) At any time before the final determination of an appeal, the High Court may make an interim order allowing an appellant who is a licensee to carry out real estate agency work until the close of the day on which the High Court finally determines the appeal.
(2) An interim order may be subject to any conditions that the High Court thinks fit.
[13] In the course of argument, counsel referred to a number of comparator decisions involving other professions. Both Mr Hodge, for the Real Estate Agents
7 Ibid, at para [2].
Authority, and Ms Pender agreed that the starting point for analysis should be taken from observations made by Fisher J in T v Preliminary Proceedings Committee of the Medical Council of New Zealand.8 In summarising the nature of the issues to be considered on an application for stay of a penalty involving cancellation of a licence, Fisher J said:9
… It seems to me that an appellant must place before this Court some ground for making an order staying the orders imposed by the Council but that that is as far as the initial obligation on the appellant goes. If the appellant does advance some tangible reason for a stay it becomes a matter of comparing the grounds for and against a stay without any predisposition towards either result. Many considerations will be relevant. Some have been helpfully enumerated by Elias J in LWB. They include the need to protect the public, the effect on the utility of a right of appeal if no stay is allowed and the impact upon the appellant if a stay is declined. In the end it must of course be a broad discretion to be exercised in the interests of justice.
In the present case there are factors which would support a stay. One is hardship to the appellant pending the outcome of the appeal. I do not think that any minimum financial, social or professional impact must be attained before this becomes a relevant consideration. It is undeniable that the orders imposed must have a major and an adverse impact upon the appellant. ….
[14] I was also referred to a decision of Duffy J in Kumandan v Real Estate Agents Authority.10 In that judgment, Duffy J applied the approach articulated by Fisher J in T v Preliminary Proceedings Committee of the Medical Council of New Zealand. I adopt the same principles; where the interests of justice lie is the ultimate issue.
Competing contentions
[15] Ms Pender submitted that an interim order was required to ensure that undue hardship was not suffered by Mr Tucker in the period leading up to what could be a successful appeal. While acknowledging that public protection is a powerful consideration in determining whether such an order should be made,11 Ms Pender
contended that Mr Tucker’s appeal could be rendered nugatory if he were prevented
8 T v Preliminary Proceedings Committee of the Medical Council of New Zealand HC Auckland
HC21/96, 23 February 1996, at 2.
9 Ibid, at 2. The decision to which Fisher J referred is LWB v Preliminary Proceedings Committee
HC Auckland HC169/95, 18 December 1995.
10 Kumandan v Real Estate Agents Authority [2012] NZHC 1192, at para [7].
11 Ibid, at para [8], adopting Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1 (SC)
at para [128].
from working meantime. Further, she submitted there was no “appreciable risk to the public” in suspending the cancellation order.
[16] Mr Hodge submitted that the protection of the public was the paramount consideration and that any hardship caused by loss of licence in the period leading up to determination of the appeal did not justify a stay. On any view, Mr Hodge submitted, unless the appeal were successful on misconduct findings, a period of suspension would be the minimum sanction that ought to be imposed.
Analysis
[17] Adopting the approach taken by Fisher J in T v Preliminary Proceedings Committee of the Medical Council of New Zealand, I regard the strength (or otherwise) of the misconduct appeal, the likely impact of cancellation on Mr Tucker pending appeal and protection of the public as the relevant considerations.12 I focus on each in turn.
[18] First, I consider the strength of Mr Tucker’s appeal. When the appeals are considered by this Court, the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar,13 will apply. For present purposes, the relevant passage from the judgment of the Supreme Court, delivered by Elias CJ, is:
[13] The procedure prescribed for appeals by s 27 does not provide for full de novo rehearing of evidence. While “further material” can be brought forward under subs (8) either “in the manner prescribed or by special leave of the Court”, it is clearly envisaged that there will be rehearing on the record. That is usual, and is for example the manner of appeals under s 76 of the District Courts Act 1947. The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Rangatira Ltd v Commissioner of Inland Revenue.
(Emphasis added; footnotes omitted)
[19] Despite valiant attempts by Ms Pender, I do not consider that a penalty short of suspension is likely to be imposed if the finding that the 2015 charge was proved
12 See para [13] above.
13 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).
is not disturbed on appeal. That being so, I need to consider the strength of Ms Pender’s submission that the Tribunal erred in its approach to determination of that aspect of the case.
[20] Ms Pender suggested that the Tribunal had erred in its approach to determining whether the packages containing sanitary pads and condoms were sent by Mr Tucker to Mr Wills and Mr Beard. Mr Tucker denied having sent those items to Mr Wills and Mr Beard. He suggested that, for some reason, Mr Wills and Mr Beard had sent them to themselves. Notwithstanding the way in which Mr Tucker approached that issue before the Tribunal, Ms Pender submitted there were other candidates who ought to have been excluded before a finding that Mr Tucker sent the packages could be made on a balance of probabilities standard.
[21] Both Mr Wills and Mr Beard gave evidence. Mr Tucker put it to them that they had sent the packages to themselves. They denied doing so. The Tribunal accepted evidence given by Mr Wills and Mr Beard on that topic and rejected Mr Tucker’s. In making that credibility finding, the Tribunal said:
[68] Mr Tucker denied that he sent these packages. He said he had no doubt that Mr Wills and Mr Beard sent them to themselves, because they were bitterly disappointed that he had not been convicted in the criminal proceedings, and believed that (following his admission that he had sent Mr Beard the package of faeces) Mr Tucker would be the prime suspect. He rejected outright the suggestion put to him in cross-examination that the notion that Mr Wills or Mr Beard had sent the packages to themselves was absurd. He said he would never do anything as petty as this, but would go through proper processes.
[69] The packages contain similar, offensive, contents, and they were received over a short period of some five weeks. They were sent over a similar period as the letters set out at [62], above. They were sent to two people towards whom Mr Tucker had particular animosity. We are satisfied that one person sent all four packages, and that they were sent by Mr Tucker. The Tribunal finds this particular proved.
[22] Mr Tucker had mentioned other possible candidates in interview with investigating officers appointed by the committees. Those people were called to give evidence. Mr Tucker had the opportunity to put to them that they had sent the packages. While I have not had an opportunity to read the transcript of evidence (which is not yet available to this Court), Mr Hodge informed me that no suggestion
to that effect was made during their evidence. In that situation, it will be difficult for
Ms Pender to submit successfully that the Tribunal’s “binary” approach was flawed.
[23] The importance of this aspect of the inquiry lies in the impact of the Tribunal’s finding that the second charge, involving the 2015 events, had been proved. Ms Pender submitted that, if one were to take the events involving the second charge out of the equation for penalty purposes, a penalty short of suspension or cancellation of the licence could properly have been imposed to mark the misconduct. Under s 110(2) of the Act, the Tribunal has jurisdiction to impose a fine
on an individual that does not exceed $15,000;14 it is also empowered to order that
compensation be paid to any person who has suffered loss in a sum not exceeding
$100,000.15 The Tribunal may impose one or more of the penalties available to it under s 110.16 If one or both of the misconduct findings survive an appeal, there is no possibility that a penalty involving censure could be imposed, as that is only available where a Complaints Assessment Committee makes a determination of unsatisfactory conduct.17
[24] While not ruling out the prospect that Mr Tucker may persuade this Court to revisit the factual findings made by the Tribunal, in terms of the principles identified in Austin Nichols, he has some difficult hurdles to overcome. If the second charge were upheld, I see no realistic possibility of a penalty short of a reasonable lengthy term of suspension or cancellation. Even if the existing penalty were commuted to a suspension, it would certainly be for a longer period than is to pass before the appeal is heard on 4 April 2017.
[25] I am not satisfied that the prospects of overturning those factual findings are sufficiently strong to outweigh the public interest in preventing Mr Tucker from continuing to operate as a real estate agent pending determination of the appeal.
[26] Mr Tucker is in the position of having to re-establish a business. His current position does not appear to be much worse than it was before the cancellation order
14 Real Estate Agents Act 2008, s 110(2)(f).
15 Ibid, s 110(2)(g).
16 Ibid, s 110(1).
17 Ibid, s 89(2)(b), 93(1)(a) and 110(4).
was made. Mr Tucker’s business had been detrimentally affected by publicity relating to the charges, in any event.
[27] Ms Pender referred to the fact that Mr Tucker, who is presently aged 59 years, has no previous disciplinary history, despite having been involved in the real estate industry for some time. That is a factor that tells in favour of Mr Tucker’s application.
[28] On balance, however, I am not satisfied that the impact of the cancellation order on Mr Tucker outweighs the public interest in maintaining cancellation of the licence pending determination of the appeal, particularly when it will be heard on 4
April 2017. In making that finding I do not overlook Mr Tucker’s previous unblemished history as a real estate agent. I consider that the nature of the conduct in issue requires cancellation to be maintained in the meantime, especially having regard to my reservations about the strength of the misconduct appeals. In other words, the interests of justice do not require an interim order to be made.
Result
[29] For those reasons, the application for an order permitting Mr Tucker to carry out real estate agency work pending determination of his appeals is dismissed.
[30] Costs are reserved. While, ordinarily, costs would be awarded against
Mr Tucker, if he were ultimately successful in his appeal a different view might reasonably be taken.
P R Heath J
Delivered at 12.30pm on 1 February 2017