Wyatt v Real Estate Agents Authority
[2013] NZCA 37
•1 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA701/2012 [2013] NZCA 37 |
| BETWEEN GREGORY JOHN WYATT |
| AND THE REAL ESTATE AGENTS AUTHORITY |
| AND BARFOOT & THOMPSON LIMITED |
| Counsel: Appellant in person |
| Judgment: 1 March 2013 at 3.30 pm |
(On the papers)
JUDGMENT OF STEVENS J – REVIEW OF REGISTRAR’S DECISION RE REFUND OF FILING FEE AND WAIVER OF SETTING DOWN FEE
The application to review the decision of the Registrar declining to refund the filing fee of $1,087.50 and to waive the setting down fee of $2,658.40 is dismissed.
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REASONS
Introduction
This is an application for review of the Registrar’s decision on an application to refund the filing fee of $1,087.50 and to waive the payment of the setting down fee of $2,658.40. It arises from an appeal to this Court by the applicant Gregory John Wyatt against a judgment of Woodhouse J in the High Court.[1] The application to the Registrar was made under regs 5 and 8 of the Court of Appeal Fees Regulations 2001. I have personally considered the application to review the Registrar’s decision and the material provided by Mr Wyatt under s 100B of the Judicature Act 1908.
Registrar’s decision
[1]Wyatt v The Real Estate Agents Authority [2012] NZHC 2550.
The application to the Registrar was made on the ground that the appeal is a matter of genuine public interest.
The Registrar concluded on the basis of the material supplied that “there is not a question of law that is of significant interest to the public or to a substantial section of the public, rather the judgment relates to a particular set of facts relating only to you”.
The grounds of review
Mr Wyatt challenges the Registrar’s conclusion. He contends that the judgment “does not relate to a particular set of facts relating only to me and that it is a decision of general application affecting nearly all real estate transactions”. Mr Wyatt refers to parts of the High Court judgment[2] which he says support this view.
Discussion
[2] Particularly the material at [54]–[60].
There is no suggestion in the grounds for review that any of the criteria in reg 5(3) (legal aid or financial hardship) are satisfied. Nor could there be. The property the sale of which gave rise to the litigation was owned by Mr Wyatt’s family trust, through a company, and was sold for $1,350,000. Further, Mr Wyatt has not claimed that the appeal is unlikely to be continued “unless the fee is waived”.[3]
[3] Court of Appeal Fees Regulations 2001, reg 5(2)(b)(ii).
The only question is whether any of the criteria in reg 5(4) applies. Mr Wyatt has focussed on reg 5(4)(b), namely, that the proceeding raises issues of significant interest to the public or a significant section of the public.
I am satisfied that the Registrar was correct to conclude that Mr Wyatt had not established the criterion in reg 5(4)(b). It is true that the passages of the judgment relied upon by Mr Wyatt refer variously to the situation at a “general level”, considerations “of general application” and a “further general consideration”. However the central issue was whether the use of the seventh edition of the standard form approved by the Real Estate Institute of New Zealand Inc and the Auckland District Law Society in the circumstances of this case constituted unsatisfactory conduct by Barfoot & Thompson under s 72 of the Real Estate Agents Act 2008 (the Act) or misconduct under s 73 of the Act. Those questions needed to be assessed against the particular facts relating to the sale of the property owned by Mr Wyatt’s family trust.
This is made clear in the following two paragraphs of the judgment:
[59] Assessing the issue in relation to the particular circumstances of this case, I remain of the view that there was no unsatisfactory conduct by Barfoot & Thompson. The circumstance of this case of particular relevance is that Mr Wyatt made quite clear that he was assuming full responsibility for the terms of the agreement. Mr Wyatt’s express instructions as to terms to be included did not include instructions for modification or deletion of standard form clauses. But that absence of instructions in this regard has no bearing on the inference to be drawn from the express instructions given. Looking at it from a different perspective, there was nothing that could have indicated to Mr Reid that Mr Reid specifically, or Barfoot & Thompson in general, were being asked to assume any responsibility as to the suitability of any of the terms of the agreement.
[60] Mr Wyatt submitted that the provision of the seventh edition amounted to a representation that that edition was the current edition. Viewing that fact in isolation I do not accept that the mere use of the form amounted to a representation of any relevance. In any event, this must be put into the circumstances of this case, and the relevant circumstances are that Mr Wyatt by his own clear instructions effectively made clear that he was not relying upon any advice or representation, express or implied, that might be proffered by Mr Reid.
Accordingly, in the light of considerations such as those arising from the specific facts of this case, there was no prospect whatsoever of Mr Wyatt successfully contending that the appeal raised issues of significant interest to the public. The fact that Mr Wyatt does not seek compensation, as indicated at paragraph 16 of the notice of appeal, does not alter the position.
Result
The Registrar’s decision to decline to refund the filing fee of $1,087.50 and to waive the payment of the setting down fee of $2,658.40 was correct. Therefore, I dismiss the application under s 100B. The appellant must pay the setting down fee of $2,658.40 to the Registrar in relation to the present appeal if he wishes to reapply for the allocation of a hearing date.
Solicitors:
Meredith Connell, Auckland for First Respondent
McElroys, Auckland for Second Respondent
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