Nottingham v Real Estate Agents Authority [2022] NZCA 488 (18 October 2022)

Last Updated: 24 October 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA406/2020 [2022] NZCA 488

	BETWEEN	DERMOT GREGORY NOTTINGHAM PHILLIP RAYMOND NOTTINGHAM ROBERT EARLE MCKINNEY Appellants
	AND	THE REAL ESTATE AGENTS AUTHORITY First Respondent
	AND	MARTIN RUSSELL HONEY Second Respondent

Hearing:	19 September 2022
Court:	Simon France, Ellis and Dunningham JJ
Counsel:	Appellants in person S S McMullan and M Djurich for First Respondent D W Grove for Second Respondent
Judgment:	18 October 2022 at 11 am

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. The second respondent’s cross appeal is allowed.

100. The High Court decision reinstating the appellants’ appeals in the Real Estate Agents Tribunal is set aside and the Tribunal’s decision striking out the appellants’ appeals is reinstated.

4. The appellants must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

• [1] The appellants have been engaged in a long-running and multifaceted dispute with Mr Martin Honey and certain people associated with him about events that took place in 2009. The dispute began with complaints made by the appellants in 2011 about Mr Honey (who was then a real estate agent) to the Real Estate Agents Authority (the Authority) but there has been a proliferation of related litigation—both criminal and civil—since then.
• [2] In 2012 one of the Authority’s Complaints Assessment Committees (the CAC) declined to take further action on the appellants’ original complaints.^[1] The appellants appealed unsuccessfully to the Real Estate Agents Disciplinary Tribunal (the Tribunal)^[2] but had partial success on further appeals to the High Court and this Court; the appeal from the CAC was remitted back, on a limited basis, to the Tribunal.^[3] As will be explained in more detail shortly, no further progress was made in that forum until 2019, when the Tribunal granted Mr Honey’s application to strike out the appeal on the grounds that it was—or had become—vexatious and an abuse of process.^[4] But in a judgment dated 3 July 2020, Wylie J allowed the appellants’ appeal from that decision; the appeal was, again, reinstated.^[5]
• [3] Despite this success, the appellants have appealed the High Court’s decision. They say they need direction from this Court as to the material that may (and may not) be considered by the Tribunal in determining the appeals before it. Most particularly, they take issue with the references made by both the Tribunal and the High Court to earlier decisions of the District Court and the High Court regarding Dermot Nottingham’s failed private prosecution against Mr Honey. They seek a direction that, when determining their reinstated appeal, the Tribunal may not take into account these matters.
• [4] The appellants also appeal the High Court’s subsequent refusal to award them indemnity costs on their successful appeal.^[6]
• [5] Mr Honey has cross-appealed the substantive decision overturning the Tribunal’s decision striking out the appeals.
• [6] The Authority appeared before us to assist but otherwise abides our decision on all matters.

Background

• [7] The background to this longstanding and tortuous dispute is regrettably complex. But in light of the conclusions we have reached, it is important to set it out in some detail. Because of the temporal overlap between the various proceedings, it is impossible to do so in strict chronological order.

The original complaints

• [8] In February 2011 Dermot Nottingham and a company associated with him made a complaint to the Real Estate Agents Authority, alleging Mr Honey had:

(a) operated a website for RE/MAX for which he no longer held a franchise;

(b) intentionally misled the public into believing he was operating as RE/MAX when he was now officially operating as Ray White; and

(c) as a result caused loss to the new RE/MAX franchise holder, a company with which Mr Nottingham was associated.

• [9] In June 2011 Mr Honey complained to the Authority about threats and intimidation he said he and his wife had suffered at the hands of Dermot and Phillip Nottingham and their associate, Mr McKinney.
• [10] The Nottingham brothers and Mr McKinney (the appellants in this appeal) then made a complaint about Mr Honey’s complaint, alleging it was knowingly false and was, itself, misconduct deserving of disciplinary action.^[7]
• [11] In its 18 July 2012 decision the CAC declined to recommend that charges of misconduct under the Real Estate Agents Act 2008 (the Act) be laid against Mr Honey by the Authority. The Tribunal dismissed the appellants’ appeals against that decision on 13 October 2014.^[8]

Appeal to the High Court and Court of Appeal

• [12] As noted, the appellants appealed the Tribunal’s decision to the High Court. In 2015 Thomas J allowed the appeal on the basis the Tribunal should hear evidence from two further witnesses—Ms Earlan and Ms Muller—and should reconsider the evidence of another witness, Mrs West.^[9] This evidence was said to be relevant to the appellants’ appeal in relation to Mr Honey’s alleged misleading operation of a RE/MAX website.
• [13] Despite this apparent success, the appellants appealed Thomas J’s decision. In a judgment dated 27 February 2017, this Court supplemented Thomas J’s order for a re-hearing with a direction that the rehearing be conducted by a differently constituted Tribunal.^[10] The appeal was otherwise dismissed.

Private prosecution

• [14] In the meantime, Dermot Nottingham had, in 2014 (before even the release of the Tribunal’s decision) commenced private prosecutions in the District Court against Mr Honey’s wife and Mr Honey’s IT consultant, Mr Taka and (slightly later in that year) against Mr Honey himself. The single charges against Mrs Honey and Mr Taka alleged obtaining or causing loss by deception. The four charges against Mr Honey were to the effect that he had conspired to defeat the course of justice by perjuring himself in the Tribunal and had conspired in various other ways to deceive the Authority.
• [15] The three witnesses whose evidence had caused Thomas J to allow the appeal from the Tribunal (Mrs West, Ms Earlan and Ms Muller) all gave evidence during the 17-day judge alone trial, which took place during April and May 2016. Their evidence is referred to (albeit briefly) at various times in Judge Paul’s 20 June 2016 decision.^[11] Judge Paul acquitted the defendants on all charges, essentially on the grounds that:

(a) as regards the charges against Mrs Honey and Mr Taka, no benefit to them or loss to anyone else had been proved; and

(b) as regards the charges against Mr Honey, no conspiracy had been proved, no intention to deceive had been proved and the alleged perjury was merely a mistake in his evidence that he had later corrected and which was, in any event, immaterial.

• [16] Judge Paul later ordered Mr Nottingham to pay the defendants’ costs in the sum of $117,000.^[12]
• [17] Mr Nottingham applied for leave to appeal Judge Paul’s decision to the High Court. In a detailed judgment dated 24 July 2017, Davison J dismissed the application.^[13] The Judge considered:^[14]

... the prosecution case brought against the defendants was misconceived from the outset. It was founded upon a series of speculative allegations and inferences for which there was never any sound and cogent basis.

He observed:^[15]

Once the appellant had formed his initial view that the presence and internet accessibility of the RE/MAX branded webpages was deliberate and intended to mislead the public by diverting internet based inquiries from RE/MAX to Ray White, he appears to have discounted any other possible explanation.

• [18] After Davison J’s judgment was released, Mr Nottingham sought an extension of time to file a separate appeal in respect of costs. That application was dismissed by Downs J on the basis that the proposed appeal would be an abuse of process.^[16]
• [19] Appeals against the decisions of both Davison J and Downs J were dismissed by this Court on 3 September 2018.^[17] Leave to appeal was declined by the Supreme Court on 5 December 2018.^[18]

The judicial review proceedings

• [20] Mr Nottingham also filed an application for judicial review of Judge Paul’s decision dismissing the charges against the Honeys and Mr Taka. He alleged that the Judge was involved in a criminal conspiracy to pervert the course of justice. The Honeys and Mr Taka were named as defendants. They applied to strike out that claim.^[19] In granting the application, Gilbert J observed the claim was replete with scandalous and outrageous allegations, with no attempt to provide supporting factual particulars.^[20] He said most of the relief sought was unavailable on review and the flaws in the claim were of such a fundamental character that they could not be saved by amendment.^[21] He awarded costs to Mr and Mrs Honey.^[22]
• [21] On 28 March 2018 this Court declined to grant Mr Nottingham leave to appeal Gilbert J’s decision out of time.^[23] On 20 November 2018 the Supreme Court declined him an extension of time to appeal this Court’s decision.^[24]

Delay in re-hearing of the appeal from the Tribunal’s 2014 decision

• [22] Following this Court’s February 2017 decision endorsing Thomas J’s referral of the original complaints proceeding back to the Tribunal,^[25] the re-hearing of the appellants’ appeals was scheduled for December 2017. Despite the apparently confined basis on which the referral back had been made (namely specifically to consider the evidence of three identified witnesses) the appellants applied to adduce further evidence. On 11 October 2017, the Tribunal granted that application, but only in part.^[26]
• [23] This prompted another appeal by the appellants. At their request, the Tribunal adjourned the substantive re-hearing, pending its determination.^[27]
• [24] Shortly afterwards, however, in a judgment issued on 7 December 2017,
  Duffy J struck out the appellants’ appeal as an abuse of process under r 5.35A(3) of the High Court Rules 2016.^[28]
• [25] A week later the Authority filed a memorandum in the Tribunal seeking directions for a new hearing date. That was supported by counsel for Mr Honey but opposed by the appellants on the grounds that they intended to appeal Duffy J’s decision or have it recalled. No new hearing date was set. Duffy J declined the application for recall on 21 December 2017.^[29] The record before us does not disclose whether an appeal was ever pursued.

Mr Nottingham’s bankruptcy

• [26] Mr Nottingham did not pay the costs awarded against him in the private prosecution. At the behest of the Honeys and Mr Taka a bankruptcy notice was issued on 29 August 2017. After a number of procedural wrangles, Mr Nottingham was adjudicated bankrupt on 11 September 2018.^[30] He was discharged from bankruptcy by operation of law in 2022.

The prosecution of Mr Nottingham

• [27] During April and May 2018 Dermot Nottingham stood trial for two breaches of non-publication orders and five charges of criminal harassment. Three of those five harassment charges related either directly or indirectly to matters involving the Honeys. A jury convicted him on all seven charges and on 26 July 2018 Judge Down sentenced him to 12 months’ home detention and 100 hours community work.^[31]
• [28] Mr Nottingham appealed that sentence to this Court. By the time the appeal was heard, he had served three-and-a-half months of his sentence of home detention. This Court dismissed Mr Nottingham’s appeal, but allowed a Solicitor-General’s appeal.^[32] The Court quashed the part-served sentence of home detention and imposed a sentence of 12 months’ home detention together with 100 hours of community work (which in effect meant Mr Nottingham would serve 15-and-a-half months’ home detention). On further appeal to the Supreme Court, the home detention sentence was reduced to eight-and-a-half months.^[33]

Mr Honey’s strike-out application

• [29] Following the December 2017 adjournment of the rehearing of the appellants’ appeals in the Tribunal no steps were taken to progress the appeal for around 18 months. So on 20 July 2019, Mr Honey applied to the Tribunal for an order striking out the appeals under s 109A of the Act.^[34] Section 109A(1) provides:

109A Disciplinary Tribunal may strike out, determine, or adjourn proceeding

(1) The Disciplinary Tribunal may strike out, in whole or in part, a proceeding if satisfied that it—

(a) discloses no reasonable cause of action; or

(b) is likely to cause prejudice or delay; or

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of process.

(2) If a party is neither present nor represented at the hearing of a proceeding, the Disciplinary Tribunal may,—

(a) if the party is required to be present, strike out the proceeding; or

(b) determine the proceeding in the absence of the party; or

(c) adjourn the hearing.

• [30] The appellants opposed the application and submitted instead the Tribunal should set their appeals down for a re-hearing.

The Tribunal’s decision

• [31] The Tribunal noted the similarity between s 109A and r 15.1 of the HCR; case law relating to the latter provision was of assistance in interpreting s 109A.^[35] The Tribunal also observed the strike-out power should be interpreted in light of the consumer-focused purpose of the Act, so as not to unduly limit the ability of consumers to complain about the conduct of licensees.^[36]
• [32] The Tribunal granted Mr Honey’s application and struck out the appeal. It noted the close similarity between the Tribunal’s 2014 summary of the appellants complaints and the summaries by Judge Paul and Davison J of the criminal case advanced against the Honeys and Mr Taka; both involved allegations of conspiracy and a deliberate and dishonest intention to mislead.^[37] The Tribunal said:

[60] Plainly, the issues are the same in the appellants’ complaint, and in the charges brought in the District Court. Therefore, the factual findings by Judge Paul in the District Court (which his Honour Justice Davison found formed a proper basis for the Judge’s decision to dismiss all of the charges) cannot be ignored by the Tribunal now.

• [33] The Tribunal noted its jurisdiction was limited by the terms of the remittal back—namely to “give further consideration to Mrs West’s evidence, and to consider the evidence of Ms Earlan and Ms Muller in relation to the complaint made against Mr Honey”.^[38] All three women had given evidence at the trial in the District Court.^[39] It went on:

[63] In particular, Judge Paul found that Mr Nottingham had not proved that Mr Honey conspired with Mrs Honey and Mr Taka to “invent a Google caching excuse”, or to make a false allegation against the appellants, or that he intended to mislead the Tribunal, the Authority, or the Police.

[64] His Honour Justice Davison found that Mr Taka’s explanation of cached pages was consistent with it being a genuine and honest explanation; Mr and Mrs Honey’s subsequent repetition of it was reasonable – they could be expected to rely on Mr Taka; Mrs Payne’s subsequent (different) explanation does not detract from that; there was credible evidence for Judge Paul’s conclusion that Mr Honey was not acting to deceive the Tribunal, the Authority; and that the presence of RE/MAX branded accessible webpages was a the result of a mistake and not a deliberate plan to deceive.

• [34] The Tribunal said that the appellants’ submission that Davison J “completely ignored” Ms Earlan’s evidence was not tenable, given that the Judge had referred expressly to, and discussed, her evidence (and the evidence of Ms Earlan and Ms Muller) in his judgment.^[40] The Tribunal’s view was that the reconsideration of that evidence directed by Thomas J in 2015 had therefore effectively occurred in the District Court and been reviewed by Davison J.^[41] Both Judges had accepted the evidence but found that “it did not establish the appellants’ fundamental claim, which is that Mr Honey operated a fraudulent RE/MAX website and invented a ‘google caching excuse’ to mislead the Tribunal”.^[42]
• [35] The Tribunal acknowledged the different standards of proof applying in the Tribunal and the District Court, but said:^[43]

... given the serious nature of the allegations made by the appellants in their complaint against Mr Honey, we do not consider that the application of a different standard of proof causes us to reach a different conclusion on the application before us.

• [36] So the Tribunal concluded that the appeals were now an abuse of process:

[68] The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

[69] By pursuing their appeals to the Tribunal and seeking charges against Mr Honey, the appellants are attempting to do what the House of Lords in Hunter v Chief Constable of the West Midlands Police and the Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd held cannot be done: to relitigate issues which have been explored in considerable detail in the proceedings they brought in the District Court, and in respect of which they had the full opportunity (which they took) to contest the District Court’s decision on appeal to the High Court and Court of Appeal.

[70] We find that it would be frivolous, vexatious, and an abuse of the Tribunal’s processes to repeat the re-consideration and consideration directed by Justice Thomas, and already undertaken by Judge Paul, whose findings were upheld in the High Court. ...

The decisions under appeal

Strike out

• [37] The appellants appealed the Tribunal’s decision to the High Court. Wylie J agreed with the Tribunal that s 109A of the Act fell to be interpreted by reference to its text and (consumer protection) purpose and that a useful analogy could be drawn between s 109A and r 15.1 of the HCR.^[44]
• [38] As to whether the appeals were frivolous, vexatious and an abuse of process, the Judge observed it was not, in principle, an abuse of process for a later disciplinary inquiry to examine an element of a criminal charge that had not necessarily been resolved in the criminal proceedings.^[45] But he acknowledged it would undermine the integrity of the criminal justice system if the disciplinary process was used as a means to substantially replicate unsuccessful criminal proceedings.^[46]
• [39] Unlike the Tribunal, Wylie J was not satisfied the appellants were seeking to use the disciplinary proceedings to relitigate matters already determined in the unsuccessful criminal proceedings. In particular, he noted:^[47]

(a) it could not be said the complaints against Mr Honey mirrored the private prosecution against him as no disciplinary charges had yet been laid; and

(b) it would be open to the Tribunal, following a re-hearing of the appeals, to determine Mr Honey should be charged with either unsatisfactory conduct or misconduct relying on matters arising from the complaints but not relying on the same matters advanced before the District Court.^[48]

• [40] In addition, the Tribunal had options available to it short of laying charges.^[49]
• [41] The Judge also noted that this Court’s decision upholding Thomas J’s judgment was issued after Judge Paul’s decision dismissing the charges against Mr Honey.^[50] While this Court’s judgment did not refer to the private prosecution in the District Court, he thought it unlikely that this Court was unaware of it.^[51]
• [42] Lastly, he held the proceedings are not so stale such that a fair hearing was no longer possible. The appeals were reinstated.^[52]

Costs

• [43] Following their success in appealing the strike out, the appellants sought indemnity costs. The Judge declined to order costs in their favour at all. He reasoned:^[53]

The appellants were lay litigants. They appeared in person. The Supreme Court has confirmed that in such circumstances, the primary rule is that there should be no costs award. The Court however noted that the law is not altogether settled and left open the issue whether or not it is possible for this primary rule to be departed from in exceptional circumstances. I recorded this in my substantive judgment and, in effect, invited the appellants to address the issue. They have not done so; no exceptional circumstances have been advanced by them and I cannot see that there is any justification for departing from the primary rule in this case.

Approach on appeals and cross-appeal

• [44] The present appeal and cross-appeal are brought under s 120 of the Act, which permits an appeal from a decision of the High Court on a question of law only.
• [45] The Supreme Court in Bryson v Three Foot Six Ltd held a question of law:^[54]

(a) may arise where the court below misdirects itself in law, for example, by misinterpreting a statutory provision, by failing to have regard to relevant matters, or by taking into account irrelevant matters;

(b) may arise where the conclusion of the court below is so clearly untenable that proper application of the law requires a different answer; such cases will be exceptional; but

(c) will not arise where the court below has merely applied the law, correctly understood, to the facts of an individual case. In particular, allegations that the court below did not properly consider certain factors will not amount to an error of law, as weight is a matter for that court.

The appeals

Substantive

• [46] Both the original notice of appeal and the amended notice are wide-ranging, if not prolix. But it was clear from the appellants’ more focused written and oral submissions that their concern in fact lay with whether the Tribunal and Wylie J were permitted to take account of the decisions of Judge Paul and Davison J in reaching their respective decisions. We accept that issue may be of some moment for them in terms of the future conduct of their appeals in the Tribunal, if the cross-appeal does not succeed.
• [47] While, in the abstract, we think this is capable of constituting a question of law, the difficulty is that the answer sought by the appellants to it (and indeed the answer to all the matters raised in the notices of appeal) cannot be material to the decision appealed from. That is because the appellants succeeded in the High Court, despite Wylie J’s reference to those decisions and despite the correctness or not of those other matters now raised.
• [48] Although we have acknowledged the appellants’ wider concern for the future conduct of their appeals, it is not this Court’s role to give advisory opinions. We simply observe that s 109 of the Act gives the Tribunal considerable latitude as to the material and information it may take into account; admissibility in accordance with the usual rules of evidence is not required. What material is received by the Tribunal and the weight it is given is a matter for the Tribunal.^[55]
• [49] The short point is, however, that the appeal must be dismissed for the reasons we have given above.

Costs

• [50] Wylie J’s decision declining the appellants costs was plainly right; the Judge correctly applied the law as it stands. The appellants did not engage with the relevant principles before him and nor, in their notice of appeal, have they identified any matter which might bring them within the possible “exceptional circumstances” exception to the primary rule suggested by this Court in Re Collier (A Bankrupt).^[56] On any analysis, no such circumstances exist.
• [51] We dismiss the costs appeal accordingly.

The cross-appeal

• [52] The notice of cross-appeal lists a number of questions of law said to arise from the High Court’s decision. In reality, however, we consider they can be reduced to this essence: was the High Court correct to find, as a matter of law, that the appeals to the Tribunal were not an abuse of process? We have formed the view that, in light of the extraordinary history of this matter, it was not.
• [53] First, the complaints that are the subject of the appeals in the Tribunal were made over ten years ago. On any rational analysis they were never complaints of the most serious kind. Any harm to consumers caused by Mr Honey’s acts or omissions (and there is no evidence that there was any) was minimal. Any actual harm to Mr Nottingham’s business is also far from clear. And despite there being some dispute about precisely when the remedial steps taken by Mr Honey took effect, there can be no question that any harm there was, was not ongoing.
• [54] The record of subsequent events we have attempted to summarise above makes it quite clear that Mr Honey and those associated with him have been the subject of a ten-year long, unrelenting, campaign by the appellants, conducted on many overlapping fronts. Mr Honey has been forced to participate in all these matters and to incur the considerable costs of doing so. As far as we are aware the appellants have not paid the costs awards against them, one of which led to Mr Nottingham’s bankruptcy in 2018.^[57] The prejudice to Mr Honey caused by the delay thus far is significant.
• [55] Following their initial success in the High Court and this Court, it was the appellants’ obligation to progress their appeals in the Tribunal in a timely way. Instead, they chose to pursue collateral criminal proceedings (which failed), sought to bring vexatious judicial review proceedings and pursued meritless further appeals. They took no steps in the Tribunal at all (despite there being no active appeals in relation to those proceedings) between December 2017 (when Mr Honey tried to maintain the fixture that had been allocated and have the appeals heard) and mid-2019, when the matter was reactivated not by the appellants, but by the Authority.^[58]
• [56] As well, there is the matter of Mr Nottingham’s harassment convictions. As noted earlier, three of the charges giving rise to those convictions can be seen as related to, or arising from, the matters before the Tribunal.^[59] Against that backdrop it is not difficult to see the continuation of the disciplinary matter after all this time and in the wider circumstances we have described, as simply further harassment. The use of litigation for that purpose is, itself, vexatious and an abuse of the courts’ processes.
• [57] Moreover, the only purpose of the resumed hearing in the Tribunal is for the Tribunal to consider (or reconsider) the evidence of the three witnesses identified in Thomas J’s judgment. Those witnesses have since given that evidence—some five years ago—in the District Court, where it was found inadequate to establish the matters the appellants now wish relitigate in in the Tribunal. While it is abundantly clear that the appellants will not rest unless and until they obtain findings of dishonesty and conspiracy, for the reasons given by the Tribunal in 2019 the prospect of any such findings is less than remote.
• [58] Not addressed below but highlighted by Mr Grove is the ongoing validity of the basis on which the matter was referred back. Not only has the evidence of the three witnesses now been tested and reviewed, but those assessments occurred within the context of wider evidence not before the Tribunal initially. There is a real doubt the evidence of the three can or should be heard or assessed in isolation from this other evidence, at which point any rehearing looks very much like the criminal trial. The potential scale of any further hearing is a factor strongly telling against continuation.
• [59] Relatedly, another determination by the Tribunal is unlikely to end matters, even if favourable to the appellants. The present appeal illustrates a willingness to carry on until the resolution exactly matches that which the appellants seek. There is a real risk of many further years of litigation in circumstances where there is already a real disproportion to the process. We consider the Tribunal was correct to recognise this and hold the litigation was now an abuse of process.
• [60] For these reasons we consider the High Court was wrong to conclude that the continuation of the appeals in the Tribunal was not vexatious and an abuse of process.

Result

• [61] The appeal is dismissed.
• [62] The second respondent’s cross appeal is allowed.
• [63] The High Court decision reinstating the appellants’ appeals in the Tribunal is set aside and the Tribunal’s decision striking out the appellants’ appeals is reinstated.
• [64] The appellants must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Meredith Connell, Auckland for First Respondent
Foy & Halse, Auckland for Second Respondent

---

^[1] Re Honey CAC 10057, 18 July 2012.

^[2] Nottingham v Real Estate Agents Authority [2014] NZREADT 80 [Tribunal’s 2014 decision].

^[3] Nottingham v Real Estate Agents Authority [2015] NZHC 1616 [Remittance decision]; and Nottingham v Real Estate Agents Authority [2017] NZCA 1 [Remittance appeal decision].

^[4] Nottingham v Real Estate Agents Authority [2019] NZREADT 53 [Strike out decision].

^[5] Nottingham v Real Estate Agents Authority [2020] NZHC 1561 [Strike out appeal decision].

^[6] Nottingham v Real Estate Agents Authority [2020] NZHC 1793 [Costs decision].

^[7] This complaint resulted in a disciplinary charge being filed against the licensee company for which the appellants then worked, Property Bank Realtor Limited. This charge was eventually withdrawn (without prejudice), in part because the delay and intervening events after the charge had been filed led the prosecution to conclude proceeding with the case was no longer in the public interest.

^[8] Tribunal’s 2014 decision, above n 2.

^[9] Remittance decision, above n 3; and Nottingham v Real Estate Agents Authority [2015] NZHC 1998 at [18].

^[10] Remittance appeal decision, above n 3. The chairperson of the original Tribunal had, in any event, died by then.

^[11] Nottingham v Honey [2016] NZDC 9272.

^[12] Nottingham v Honey DC Auckland CRI-2014-004-3937, 13 July 2016.

^[13] Nottingham v District Court at Auckland [2017] NZHC 1715.

^[14] At [136].

^[15] At [136].

^[16] Nottingham v Honey [2017] NZHC 2921.

^[17] Nottingham v District Court at Auckland [2018] NZCA 345, [2018] NZAR 1308.

^[18] Nottingham v Taka [2018] NZSC 102, [2018] NZAR 1759.

^[19] Nottingham v Auckland District Court [2017] NZHC 777.

^[20] At [10].

^[21] At [16].

^[22] At [18].

^[23] Nottingham v Auckland District Court [2018] NZCA 75.

^[24] Nottingham v District Court at Auckland [2018] NZSC 110.

^[25] Remittance appeal decision, above n 3.

^[26] Nottingham v Real Estate Agents Authority (CAC 10057) [2017] NZREADT 61.

^[27] Nottingham v Real Estate Agents Authority (CAC 10057) [2017] NZREADT 69.

^[28] Nottingham v Real Estate Agents Disciplinary Tribunal [2017] NZHC 3018.

^[29] Nottingham v Real Estate Agents Disciplinary Tribunal [2017] NZHC 3279.

^[30] Honey v Nottingham [2018] NZHC 2382.

^[31] R v Nottingham [2018] NZDC 15373.

^[32] Nottingham v R [2019] NZCA 344.

^[33] Nottingham v R [2020] NZSC 74, [2020] 1 NZLR 642.

^[34] Section 109A was inserted into the Act on 14 November 2018.

^[35] Strike out decision, above n 4, at [52]–[53].

^[36] At [51] and [53].

^[37] At [57]–[60].

^[38] At [61].

^[39] At [62].

^[40] At [65].

^[41] At [66].

^[42] At [66]. It is not necessary for present purposes to go into what “google caching” means.

^[43] At [67].

^[44] Strike out appeal decision, above n 5, at [41] and [55].

^[45] At [60].

^[46] At [64].

^[47] At [65].

^[48] Whether or not they would be laid was the object of the Tribunal hearing.

^[49] At [65].

^[50] At [66].

^[51] At [66].

^[52] At [69].

^[53] Costs decision, above n 6, at [8] (footnotes omitted).

^[54] Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[26]. In Wyatt v Real Estate Agents Authority [2013] NZCA 389 at [3] and [13], this Court applied Bryson to s 120 of the Act, noting the limitations imposed by the provision must be strictly observed.

^[55] We note that in Deliu v National Committee of the New Zealand Law Society [2015] NZCA 399 at [34]–[36], this Court held it was open to the High Court to take into account judgments of a Judge against whom Mr Deliu had lodged a complaint, as well as other judgments in proceedings the subject of Mr Deliu’s complaints, under s 239 of the Lawyers and Conveyancers Act 2006—a materially identical provision to s 109 of the Act. The Court observed the judgments were relevant and not unfairly prejudicial, and the weight to be given to them was a matter for the Lawyers and Conveyancers Disciplinary Tribunal.

^[56] Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 441–442.

^[57] As noted earlier, his bankruptcy was specifically a consequence of the costs award in the private prosecution.

^[58] Mr Nottingham’s adjudication in September 2018 was no impediment to him taking steps in that forum, as his participation in the proceedings subsequently (before his discharge) shows.

^[59] See above at [27].