Quin v Real Estate Agents Authority [2013] NZHC 840 (22 April 2013)

Last Updated: 29 April 2013

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-256 [2013] NZHC 840

IN THE MATTER OF an appeal under s 116 of the Real Estate

Agents Act 2008

BETWEEN ANDREA QUIN Appellant

AND THE REAL ESTATE AGENTS AUTHORITY

First Respondent

AND PHILIP ANDREW BARRAS AND SANDRA KNAPTON

Second Respondents

Hearing: (On the papers) Counsel: PJ Napier for Appellant

MJ Hodge for First Respondent

Second Respondents in person

Judgment: 22 April 2013

JUDGMENT OF BREWER J (Costs)

This judgment was delivered by me on 22 April 2013 at 12 noon pursuant to Rule 11.5 High Court Rules.

_{Registrar/Deputy Registrar}

SOLICITORS

Keegan Alexander (Auckland) for Appellant Meredith Connell (Auckland) for First Respondent (Copies to Second Appellants in person)

QUIN V THE REAL ESTATE AGENTS AUTHORITY HC TAU CIV-2012-470-256 [22 April 2013]

Introduction

[1] In my judgment delivered on 19 December 2012, I found for the appellant on her second ground of appeal. I held that the appellant is entitled to costs and invited memoranda as to quantum.1

Decision

[2] For the reasons I give below, I have decided:

(a) The appellant is entitled to costs against the first respondent in the sum of $15,882.13, being costs on the appeal on a reduced 2B basis including disbursements of $1,444.96;

(b) The appellant is not entitled to costs against the second respondents on the appeal;

(c) The appellant is not entitled to costs against the second respondents on their cross appeal.

Reasons

[3] In the ordinary course of events, the party who fails should pay the costs of the party who is successful. As far as possible, costs should be predictable and expeditious and that is partly why the scale of costs exists. However, I have an overarching discretion to decline to award costs against an unsuccessful party or to order the payment of reduced costs.2

[4] In this case, the appellant did not challenge the findings of the Committee and the Tribunal that her conduct in relation to the second respondents amounted to

_{unsatisfactory conduct in terms of the Real Estate Agents Act 2008. The appeal}

1. The appellant’s memorandum was filed on 4 January 2013, the first respondent’s memorandum on 20 March 2013 and the second respondents’ memorandum on 21 March 2013.
2. Rule 14.7(g) provides that the Court may refuse to make an order for costs or may reduce the costs otherwise payable under rr 14.2 to 14.5 if a reason exists which justifies this.

challenged jurisdiction and, alternatively, the ability of the Tribunal to make an order for relief or compensation in favour of the second respondents.

[5] The second respondents represented themselves. They were concerned with the quantum of the award made in their favour by the Tribunal. They thought the award should have been higher. As lay litigants, they really could not take any part in the legal arguments which had to be determined by me on the appeal. Their factual arguments had already been raised before the Tribunal and occupied very little of the half-day hearing. My decision meant that I did not have to consider the second respondents’ quantum argument. It simply fell away.

[6] In circumstances where the appellant accepts that her actions were beneath the standard required of a real estate agent, and where the true contenders in the appeal were the appellant and the first respondent, it would be unjust to award costs against the second respondents and I decline to do so.

[7] The first respondent submits that reduced costs between $3,000 and $5,000 should be awarded. It submits that instead of costs being calculated on a 2B basis, they should instead be calculated on a 1A or 2A basis. I do not agree. Category 1 proceedings are proceedings of a straightforward nature able to be conducted by counsel considered junior in the High Court. This case raised novel issues of statutory interpretation in an area largely devoid of meaningful comparison. Similarly, band A is not applicable. I could not consider a comparatively small amount of time reasonable on the issues raised in this appeal.

[8] The first respondent also submitted that costs should be reduced because the appellant was unsuccessful on her first ground of appeal. The first ground of appeal was on a narrow issue of interpretation. I do not consider that in the context of a half-day hearing the appellant’s failure in relation to that cause of action significantly increased the costs of the first respondent. In any event, the argument was there to be made and overall the appellant succeeded in her argument that the significant monetary award against her was made without jurisdiction.

[9] I have concluded accordingly that the appellant is entitled to costs against the first respondent on a 2B basis. However, I will reduce the amount of $15,578 set out in the memorandum of counsel for the appellant as to costs dated 21 December 2012. The first reduction I will make is for the claim for one day for the appearance at the hearing. The actual hearing time did not amount to a full day. I will fix the costs at half a day or $995. This brings the total to $14,583. I will reduce the costs by a further 10% to take account of the preparation required in respect of the second respondents’ arguments. The first respondent should not have to bear that cost. That reduces the costs allowed to $14,437.17. To that will be added disbursements of

$1,444.96 bringing the total to $15,882.13.

[10] In making the second reduction and in allowing disbursements I do not strive for exact dollars and cents accuracy. Overall, I make what I consider to be a

_{reasonable award in the circumstances.}

Brewer J