Vosper v Real Estate Agents Authority - [2017] NZHC 453

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2016-470-000150 [2017] NZHC 453

BETWEEN
FRANK VOSPER AND VOSPER

REALTY LIMITED Appellants

AND

THE REAL ESTATE AGENTS AUTHORITY

First Respondent

MATTHEW BIDDLE Second Respondent

Hearing: 2 February 2017

Appearances:

P J Crombie for Appellants
M Hodge for First Respondent
No appearance by or on behalf of Second Respondent

Judgment:

15 March 2017

JUDGMENT OF HEATH J

This judgment was delivered by me on 15 March 2017 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Cooney Lees Morgan, Tauranga
Meredith Connell, Auckland

VOSPER AND VOSPER REALTY LIMITED v THE REAL ESTATE AGENTS AUTHORITY [2017] NZHC
453 [15 March 2017]

The appeal CONTENTS
[1]

The High Court appeal [7]

Background facts [12]

The Committee’s decisions [25]

The Tribunal’s decision [30]

The issues [37]

Analysis

(a)      The complaints’ process

[40]

(b)      The Rules [54]

(c)      The r 6.4 appeal [57]

(d)      The r 12.1 appeal [66]

Result [78]

The appeal

[1] Mr Frank Vosper and Vosper Realty Ltd each appeal against a decision of the

Real Estate Agents Disciplinary Tribunal (the Tribunal) delivered on 26 August

2016.1 Mr Frank Vosper is the sole director and shareholder of Vosper Realty Ltd. Unless the context otherwise requires, I refer to those parties collectively as “the licensees”.

[2] The appeal arises out of a transaction for the sale and purchase of land, in respect of which Mr Frank Vosper acted as agent for a company called Vosper Property Ltd. That company is associated with Mr Frank Vosper’s son, Kirk, and his son’s partner. The purchaser was Mr Biddle. After the agreement had been cancelled, Mr Biddle made a complaint about the licensees’ conduct.

[3] After investigating the complaint,2 Complaints Assessment Committee 402 (the Committee), in a decision given on 8 September 2015, found that the licensees had breached rr 5.1, 6.4 and 12.1 of the Real Estate Agents Act (Professional
Conduct and Client Care) Rules 2012 (the Rules).3 The Committee found that:

1      Vosper v Real Estate Agents Authority (CAC 402) [2016] NZREADT 60 (Hon P J Andrews
(Chairperson), Ms N Dangen and Ms Sandelin).
2      A summary of the complaints’ process is set out at paras [40]–[53] below.
3      Those Rules deal respectively with failure to exercise skill, care, competence and diligence, misleading conduct and refusal to engage in a dispute resolution process. Rules 6.4 and 12.1 are set out at para [56] below.

(a) Both Mr Frank Vosper and Vosper Realty Ltd failed to exercise the skill, care, competence and diligence required by r 5.1;

(b) Contrary to r 6.4 of the Rules, Mr Frank Vosper misled Mr Biddle;

and

(c) Contrary to r 12.1, Mr Frank Vosper and Vosper Realty Ltd did not make a copy of their procedures for dealing with complaints available to Mr Biddle.

[4] The Committee took the view that, having found that the licensees were in breach of their professional obligations under the Rules, each had engaged in “unsatisfactory conduct”.4

[5] On…

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 453
Decision Date: 15 March 2017

CaseChat Overview and Summary

The appeal was brought by Mr Frank Vosper and Vosper Realty Ltd (the licensees) against a decision of the Real Estate Agents Disciplinary Tribunal (the Tribunal) which had allowed an appeal by the licensees against a decision of a Complaints Assessment Committee (the Committee) to find that the licensees had breached certain Rules of the Real Estate Agents Act 2008. The Committee had found that the licensees were in breach of r 5.1 (failure to exercise skill, care, competence and diligence), r 6.4 (misleading conduct) and r 12.1 (failure to make a dispute resolution process available to a client). The Tribunal allowed the licensees’ appeal against the finding of a breach of r 5.1 but dismissed their appeal against the findings of breaches of rr 6.4 and 12.1. The licensees appealed to the High Court against the Tribunal’s decision to uphold the finding of a breach of r 6.4. The Tribunal had substituted a penalty for that breach and the licensees also appealed against that penalty. The Real Estate Agents Authority did not cross-appeal against the Tribunal’s finding that r 5.1 had been breached. The court found that the licensees were not in breach of r 6.4, but were in breach of r 12.1. The court substituted a decision by the Committee not to take any action on the complaint, in accordance with s 80 of the Act. The court also set aside the penalty orders imposed by the Tribunal and ordered that the licensees pay costs to the Authority on the appeal on a 2B basis, together with reasonable disbursements.

Orders