Tucker v Real Estate Agents Authority - [2017] NZHC 54

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 Respondent

Judgment:

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, Wellington
Meredith 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…

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: [2017] NZHC 54
Decision Date: 1 February 2017

CaseChat Overview and Summary

In Tucker v Real Estate Agents Authority, the High Court of New Zealand addressed an application by Grant Tucker to permit him to carry out real estate agency work pending determination of his appeals against the Real Estate Agents Disciplinary Tribunal’s decision to cancel his licence. Tucker was found guilty of two charges of disgraceful conduct related to incidents in 2014 and 2015. The primary legal issue was whether the Court should grant an interim order allowing Tucker to resume his real estate activities while his appeal was pending.

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.

Orders