Kumandan v Real Estate Agents Authority [2012] NZHC 1992 (7 August 2012)

Last Updated: 12 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-003909 [2012] NZHC 1992

IN THE MATTER OF an appeal against a decision of the Real Estate Agents Disciplinary Tribunal, pursuant to s 116 of the Real Estate Agents Act 2008

BETWEEN DELAWER HOOSAIN KUMANDAN Appellant

AND REAL ESTATE AGENTS AUTHORITY Respondent

Hearing: 7 August 2012

Appearances: D H Kumandan (Self-represented Appellant) in Person

J F MacGibbon and L J Clancy for the Respondent

Judgment: 7 August 2012

_{(ORAL) JUDGMENT OF DUFFY J}

Solicitors: Meredith Connell P O Box 2213 Shortland Street Auckland 1140 (DX CP24063) for the Respondent

Copy To: D H Kumandan (Self-represented Applicant) 5 Bolina Crescent Pakuranga

_{Auckland 2010}

KUMANDAN v REAL ESTATE AGENTS AUTHORITY HC AK CIV-2012-404-003909 [7 August 2012]

[1] The applicant, Delawer Kumandan, was a licensed real estate salesperson. By a decision dated 5 April 2012, the Real Estate Agents Disciplinary Tribunal (the Tribunal) found him guilty of one charge of misconduct under s 73 of the Real Estate Agents Act 2008 (the Act). The misconduct involved the applicant forging the signature of a solicitor on two settlement statements. By a decision dated 12 June

2012, the Tribunal decided that the applicant’s salesperson’s licence should be

cancelled.

[2] The applicant has now appealed to this Court against both the Tribunal’s

finding of misconduct and its decision on penalty.

[3] By an application dated 9 July 2012, the applicant applied for an interim order of this Court stopping the Tribunal’s orders and allowing him to carry out real estate agency work pending determination of the substantive appeals (a stay).

[4] The respondent opposes the granting of any stay.

[5] Section 117 of the Act provides that at any time before the final determination of an appeal, the High Court may make an interim order allowing an appellant, who is a licensee, to carry out real estate agency work until the close of the day on which the High Court finally determines the appeal. The interim order may be made subject to any conditions that the High Court thinks fit.

[6] The applicant has made a number of wide ranging arguments in support of the grant of a stay. I have found none of his arguments helpful or relevant to the granting of a stay.

[7] The key principles to the grant of a stay are well settled. In T v Preliminary Proceedings Committee of the Medical Council of New Zealand HC Auckland HC21/96, 23 February 1996, the Court considered an application for stay of an order removing the applicant’s name from the Medical Register. The Court held:

If the appellant does advance some tangible reason for a stay it becomes a matter of comparing the grounds for and against a stay without any predisposition towards either result. Many considerations will be relevant. Some have been helpfully enumerated by Elias J in LWB. They include the

need to protect the public, the effect on the utility of a right of appeal if no stay is allowed and the impact upon the appellant if a stay is declined. In the end it must be of course be a broad discretion to be exercised in the interests of justice.

[8] Public protection is a key consideration in considering whether or not to grant a stay. In Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1

NZLR 1, the Supreme Court stated at [128]:

The purpose of disciplinary proceedings is materially different to that of a criminal trial. It is to ascertain whether a practitioner has met the appropriate standard of conduct in the occupation concerned and what may be required to ensure that, in the public interest, such standards are met in the future. The protection of the public is the central focus.

[9] In the present case, I have learnt that the real estate firm that employed the applicant is no longer functioning. The principal of the firm is deceased. If the applicant were to be granted an interim licence, he would be the last remaining licensee at the firm.

[10] The applicant has not brought to my attention any evidence that would show that the firm has now been taken over by another responsible licensed person under the Act, who would be prepared to supervise the applicant. In the absence of any evidence to show that any interim licence would result in the applicant being carefully supervised by a responsible person, the Court cannot have any confidence in permitting him to work in the interim between now and the appeal hearing. Thus, there is nothing to satisfy me that, in this case, the public protection can be preserved if a stay is granted. This tells against the grant of a stay.

[11] In terms of the effect on the utility of a right of appeal if no stay is allowed, I cannot see how refusing a stay will impact harmfully on the applicant’s appeal right. The hearing of the substantive appeal is only a fortnight away. Nor can I see that any great harm will result to the applicant if he is prevented from working as a real estate salesperson in the next fortnight. He has not put forward any evidence that would show that in the fortnight between today and the hearing of the appeal, he will suffer any significant harm if he is unable to work as a real estate salesperson.

[12] Nor has he drawn the Court’s attention to anything that would suggest that he has a strong appeal that is likely to succeed. The determination of the Tribunal in the disciplinary hearing in which it found him guilty of one charge is based on the Tribunal’s factual assessment of the evidence before it. The Tribunal has made clear credibility findings against the applicant and in favour of the witnesses, whose evidence was in conflict with his own. In such circumstances, it will be difficult for the applicant to persuade an appellate court that it should disregard the credibility findings of the Tribunal.

[13] Furthermore, the charge is a serious one. It involves dishonesty, which could also have resulted in criminal charges being laid against the applicant. Given the importance of the protection of the public, I consider it would place the public at risk of significant harm if the applicant were to be permitted to practise in the intervening period, particularly as there is nothing before this Court that would show that he would be subject to the type of supervision that could prevent any further misconduct on his part, should that occur. It follows that the application is declined.

Duffy J