Wang v Real Estate Agents Authority

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2690 [2015] NZHC 1364

BETWEEN
JANE HONGBO WANG

Appellant

AND

REAL ESTATE AGENTS AUTHORITY Respondent

On the papers

Appearances:

T Rea for the appellant
M Hodge for the respondent

Judgment:

16 June 2015

JUDGMENT (NO. 2) OF TOOGOOD J

This judgment was delivered by me on 16 June 2015 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

WANG v REAL ESTATE AGENTS AUTHORITY [2015] NZHC 1364 [16 June 2015]

[1] In a judgment dated 13 May 2015 (“the principal judgment”), I upheld, in part, an appeal by Ms Jane Hongbo Wang against a finding of the Real Estate Agents Tribunal that she had been guilty of misconduct.1 I set aside the Tribunal’s finding and replaced it with a finding that Ms Wang was guilty of the alternative charge of unsatisfactory conduct under s 72 of the REA Act. I further held that, on the face of it, the reduction of Ms Wang’s offence to one of unsatisfactory conduct should have consequences as to penalty, but said it did not appear from the notice of appeal that the penalty was challenged. I provided an opportunity for counsel to file memoranda
indicating whether the Court had jurisdiction to address the question of penalty.

[2] I have subsequently received memoranda from counsel for both the appellant and the respondent agreeing that the Court has jurisdiction to remit the question of penalty to the Tribunal for further consideration in light of the Court’s findings on the appeal and inviting me to follow that course.

[3] Accordingly, by consent, this matter is referred back to the Real Estate Agents Disciplinary Tribunal to reconsider the appropriate penalty to be imposed, on the basis that Ms Wang has been held to be guilty of unsatisfactory conduct under s 72 of the REA Act for the reasons set out in the principal judgment.

Costs

[4] By consent, I order that costs on the appeal should lie where they fall.

………………………….

Toogood J

1 Wang v Real Estate Agents Authority [2015] NZHC 1011 at [70]-[71].

CaseChat Overview and Summary

The appeal was brought by Jane Hongbo Wang against a decision of the Real Estate Agents Tribunal. The Tribunal had found Ms Wang guilty of misconduct, but the High Court, in a judgment dated 13 May 2015, overturned that finding in part. The Court found Ms Wang guilty of unsatisfactory conduct under section 72 of the Real Estate Agents Act. The Court set aside the Tribunal's finding of misconduct and substituted it with a finding of unsatisfactory conduct. The Court noted that, in theory, the reduction of the offence to one of unsatisfactory conduct should have consequences for the penalty but did not see any challenge to the penalty in the notice of appeal. The Court invited the parties to file memoranda to clarify whether the Court had jurisdiction to address the penalty question.

The court had to decide whether it had jurisdiction to remit the penalty issue back to the Tribunal for reconsideration, in light of the Court's findings on the appeal. Both counsel for Ms Wang and the Real Estate Agents Authority agreed that the Court had jurisdiction to address the penalty issue and invited the Court to remit the matter back to the Tribunal. The Court accepted this invitation by consent and ordered that the matter be referred back to the Tribunal to reconsider the appropriate penalty, given the Court's finding of unsatisfactory conduct. The Court also ordered, by consent, that costs on the appeal should lie where they fall.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

On the papers
Appearances:	T Rea for the appellant M Hodge for the respondent
Judgment:	16 June 2015