Wyatt v Real Estate Agents Authority - [2013] NZCA 389

IN THE COURT OF APPEAL OF NEW ZEALAND

CA701/2012
[2013] NZCA 389

BETWEEN	GREGORY JOHN WYATT Appellant
AND	THE REAL ESTATE AGENTS AUTHORITY First Respondent
AND	BARFOOT & THOMPSON LIMITED Second Respondent

Hearing:	20 August 2013
Court:	O'Regan P, Randerson and Wild JJ
Counsel:	Appellant in person M J Hodge for First Respondent R B J Hern for Second Respondent
Judgment:	22 August 2013 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed for want of jurisdiction.
BThe appellant is to pay the second respondent’s costs for a standard appeal on a band A basis.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Mr Wyatt’s right to appeal to this Court is under s 120 of the Real Estate Agents Act 2008 (the Act). This provides:
120 Appeal to Court of Appeal on question of law
(1)If dissatisfied with a decision of the High Court on the ground that it is erroneous in law, a party to an appeal under this Part may appeal to the Court of Appeal on a question of law only.
(2)The appeal must be heard and determined in accordance with the rules of court.
(3)The decision of the Court of Appeal on any appeal under this section is final.
Neither in his notice of appeal nor in his written submissions did Mr Wyatt identify the question(s) of law on which he appeals. Accordingly, at the start of the hearing on 20 August, we asked Mr Wyatt to do that.
What became clear from the Court’s ensuing discussion with Mr Wyatt was that he had not grasped the strict limits placed on this Court’s jurisdiction by s 120. Counsel for both respondents were right to rely on the Supreme Court’s decision in Bryson v Three Foot Six Limited for its circumscription of this Court’s jurisdiction under s 120.[1] Bryson turned on s 214 of the Employment Relations Act 2000 which also restricted this Court’s jurisdiction to a “question of law”.[2]
[1]Bryson v Three Foot Six Limited [2005] NZSC 34, [2005] 3 NZLR 721.
[2]Section 214 is different in that appeal to this Court is by leave which this Court may grant if of the opinion that the question of law involved “is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision” (s 214(3)).
Relevant to this appeal the Supreme Court said this:
[25] An appeal cannot, however, be said to be on a question of law where the fact-finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in the light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding court, unless it is…

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: [2013] NZCA 389
Decision Date: 22 August 2013 at 3 pm

CaseChat Overview and Summary

Gregory John Wyatt appealed against the decision of the Real Estate Agents Disciplinary Tribunal, which dismissed his appeal against the Real Estate Agents Authority's decision not to take further action on his complaint against Barfoot & Thompson Limited. Wyatt's complaint alleged that Barfoot & Thompson negligently failed to use the eighth edition of the REINZ/ADLS approved form of Agreement for Sale and Purchase of Real Estate, resulting in his potential liability to the Inland Revenue Department for Goods and Services Tax. The Court of Appeal was required to determine whether the appeal was within its jurisdiction under section 120 of the Real Estate Agents Act 2008, and whether any errors of law in the High Court's judgment gave rise to questions of law.

The Court of Appeal held that Wyatt's appeal was not within its jurisdiction, as he had not identified any questions of law on which he was appealing. The Court found that the High Court's judgment did not give rise to any questions of law under section 120. The Court of Appeal dismissed the appeal for lack of jurisdiction and ordered Wyatt to pay the second respondent's costs for a standard appeal on a band A basis with usual disbursements. The first respondent did not seek costs.

Orders