Kumandan v Real Estate Agents Authority (Complaints Assessment Committee 404) [2016] NZHC 2545 (25 October 2016)

Last Updated: 3 November 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000616 [2016] NZHC 2545

IN THE MATTER	of an appeal under s 116 of the Real Estate Agents Act 2008
BETWEEN	DELAWER HOOSAIN KUMANDAN Appellant
AND	REAL ESTATE AGENTS AUTHORITY (COMPLAINTS ASSESSMENT COMMITTEE 404) Respondent

Hearing:	20 October 2016
Appearances:	Appellant in person J Simpson for Respondent
Judgment:	25 October 2016

_{JUDGMENT OF DOWNS J}

This judgment was delivered by me on Tuesday, 25 October 2016 at 4 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland.

_{Copy to: Appellant.}

KUMANDAN v REAL ESTATE AGENTS AUTHORITY (COMPLAINTS ASSESSMENT COMMITTEE 404) [2016] NZHC 2545 [25 October 2016]

The case

[1] Mr Kumandan is a real estate agent. He was investigated by the Complaints Assessment Committee. When the Committee advised him it intended to lay charges, Mr Kumandan lodged a notice of appeal with the Real Estate Agents Disciplinary Tribunal. The Tribunal dismissed the appeal on the basis it was out of time.

[2] Mr Kumandan now appeals that decision. The case turns on when the time period for an appeal to the Tribunal commences, or more particularly, the correct interpretation of s 111 of the Real Estate Agents Act 2008.

Background

[1] That Act creates a disciplinary scheme in relation to real estate agents. It establishes the Real Estate Agents Authority, which must appoint and maintain Complaints Assessment Committees. These Committees hear complaints about real estate agents, and have the power to make a range of orders.¹ Appeals against the decision of a Committee are made to the Real Estate Agents Disciplinary Tribunal.²

But an appeal to the Tribunal must be filed within 20 days of the Committee’s determination. And, there is no explicit power for the Tribunal to extend the time period for the filing of an appeal. So, when the time period commences is of importance beyond the instant facts.

[2] As to those, the Committee investigated a complaint against Mr Kumandan and concluded misconduct charges should follow. The detail of the proposed charges is not before me and in any event, irrelevant. The decision was recorded in writing pursuant to s 94 of the Act. Importantly, it was dated 12 November 2015. Mr Kumandan was served with a copy on 16 November 2015. He filed a notice of appeal to the Tribunal on 14 December 2015. That was the last day for filing if the

20 working-day period commenced on the date Mr Kumandan received the decision. But, it was two days outside the appeal period if time commenced on 12 November

_{2015, the date of the Committee’s decision.}

¹ _{Real Estate Agents Act 2008, ss 89 and 93.}

² Real Estate Agents Act 2008, s 102.

[3] The Tribunal dismissed the appeal on the basis it was time-barred. It concluded s 111 of the Act meant the appeal period commenced on the date of the Committee’s decision. The Tribunal also observed even if the appeal had been within time, it would have been unlikely to disturb the Committee’s conclusion there were sufficient grounds to lay charges.

The respective cases

[4] Mr Kumandan is self-represented. His notice of appeal to this Court included brief submissions on the issue. Unsurprisingly, Mr Kumandan contends the time period commences only when the decision of the Committee is served. In concise oral submissions, Mr Kumandan made the same point.

[5] The Real Estate Agents Authority abides the decision, but in helpful written and oral submissions, acknowledged the availability of both interpretations and invited my attention to the Tribunal’s practice and analogous provisions in other disciplinary contexts.

[6] The Authority acknowledged the Tribunal’s conclusion gave rise to the possibility of prejudice if service of the Committee’s decision was not prompt. And, it cited an instance in which the Committee overlooked service so that the appeal period expired long before the agent was ever served with the decision. It noted convenience favoured the Tribunal’s decision because, obviously, a Committee will know when it has reached a decision and can calculate the appeal period accordingly. But it was troubled by the risk of injustice if administrative convenience affected due process, especially if by oversight a decision was not served until after the appeal period had expired. In those circumstances, the appeal right would be nugatory.

Analysis

[7] Section 89 of the Act invests a Committee with power to determine a complaint against an agent. The Committee may decide the complaint be considered by the Disciplinary Tribunal; conclude the agent has engaged in unsatisfactory conduct; or take no further action in relation to the complaint.

[8] Section 94 provides:

94 Notice of determination

(1) When a Committee makes a determination under section 89, the Committee must promptly give written notice of that determination to the complainant and to the licensee.

(2) The notice must—

(a) state the determination and the reasons for it; and

(b) specify any orders made under section 93 and be accompanied by copies of those orders; and

(c) describe the right of appeal conferred by section 111.

[9] Section 111 provides:³

111 Appeal to Tribunal against determination by Committee

(1) A person affected by a determination of a Committee may appeal to the Tribunal against a determination of the Committee within 20 working days after the date of the notice given under section 81 or 94.

(2) The appeal is by way of written notice to the Tribunal of the appellant's intention to appeal, accompanied by—

(a) a copy of the notice given to the person under section 81 or 94; and

(b) any other information that the appellant wishes the Tribunal to consider in relation to the appeal.

(3) The appeal is by way of rehearing.

(4) After considering the appeal, the Tribunal may confirm, reverse, or modify the determination of the Committee.

(5) If the Tribunal reverses or modifies a determination of the Committee, it may exercise any of the powers that the Committee could have exercised

[10] The final section of relevance is s 154:

154 Service of notice and documents

(1) Any notice or other document required or authorised by this Act to be given to or served on any person, is sufficiently given or served if—

_{(a) it is delivered to that person; or}

³ Section 81 provides for notice of a decision to take no further action in relation to a complaint.

(b) it is left at that person's usual or last known place of abode or business or at an address specified for that purpose in any document received from that person; or

(c) it is posted in a letter addressed to that person by name at that place of abode or business or address; or

(d) it is sent in the prescribed manner (if any).

(2) Any notice or other document required or authorised by this Act to be given to or served on the Authority is sufficiently given or served if—

(a) it is delivered to the Registrar; or

(b) it is left at the office of the Authority; or

(c) it is posted in a letter addressed to the Authority at the office of the

Authority; or

(d) it is sent in the prescribed manner (if any).⁴

(3) Any notice or other document required or authorised by this Act to be given or served on a business partnership is taken to be given or served on the partnership if, in accordance with subsection (1), it is given or served on any one of the partners.

(4) If any notice or other document is sent by post, it is, unless the contrary is shown, treated to have been given or served on the addressee at the time when the letter would have been delivered in the ordinary course of the post, and, in proving service of the notice, it is sufficient to prove that the letter was properly addressed and posted.

(5) This section does not apply to notices or other documents served or given in any proceedings in any court.

[11] How does one interpret the phrase “after the date of the notice given under section 81 or 94” in s 111(1) of the Act? As the Real Estate Agents Authority acknowledges, two interpretations are available. On the first, the phrase refers to the date of the notice as given by virtue of the authorising statutory provision. On the second, the phrase refers to the date that notice was given to the affected agent.

[12] Section 154 provides some support for the second interpretation, or service

_{interpretation. It refers to “any notice or other document required or authorised by}

⁴ There is no prescribed manner in terms of subsection (d).

this Act to be given to or served on any person”, and then provides how that is

achieved, for example, by delivery of the notice to the person.⁵

[13] But the first interpretation is probably the more natural interpretation of the term “given”, because in context, it appears to refer to the authorising statutory provision (either ss 81 or 94). Not unreasonably, this was the view of the Tribunal. And, because ss 81 and 94 require the Committee to give written notice of its decision to the agent “promptly”, the legislative assumption may be that 20 working days is more than sufficient even if the agent does not immediately receive the decision.

[14] Section 112 of the Act also supports this interpretation. That section provides an agent may apply to the Tribunal against an adverse determination by the Registrar (of the register of agents). And unlike s 111, s 112(1) provides for a 20 working-day period which commences “after the date the applicant is notified of the determination”. So on one view, Parliament has made a considered choice the respective appeal periods should commence differently.

[15] History is of little assistance. An appeal from a Disciplinary Committee to the Real Estate Agents Licensing Board under the Real Estate Agents Act 1976 had to be brought “within 28 days after the date on which the appellant was notified in writing of the Disciplinary Committee’s decision”,⁶ language presumably copied by the Legislature when enacting s 112—but not s 111. This too tends to support the first interpretation, so that the appeal period commences from the date of the Committee’s decision.

[16] Extrinsic materials are silent as to why s 111 is framed as it is. The provision went unchanged during the legislative passage.

⁵ Regulation 6 of the Real Estate Agents (Complaints and Discipline) Regulations 2009 requires service of charges “without delay”, so too written notice of the Committee’s decision to refer a complaint to the Disciplinary Tribunal.

⁶ Real Estate Agents Act 1976, s 118.

[17] Analogous provisions in other disciplinary contexts provide for the appellate timeframe to commence when the decision is received by the prospective appellant.⁷

Different language is used to achieve this approach:

(a) When the decision is “communicated” to the person concerned. (b) After “receipt” of the notice of the decision.

(c) When the notice is “served on, given to or otherwise brought to the attention of” the person.

[18] Before returning to the Act itself, a seemingly unrelated case requires consideration.

[19] In R v Vaihu, the Crown sought to appeal a question of law to the Court of Appeal in relation to an adverse determination of the District Court.⁸ But the appeal was out of time in circumstances in which there was no explicit power for the Court of Appeal to extend time. Materially, the mistake was not that of the Crown. It had learned of the decision of the District Court well after the decision was made. For the Court of Appeal, Hammond J observed the provision before it had to be read as referring to the date from when the prosecution was informed of the decision. If that were not so, the Crown could be out of time through no fault of its own. The Judge continued:⁹

This is the very sort of injustice that various final courts of appeal have had to grapple with in the civil sphere, and what gave rise to courts relying on the date of reasonable discovery rather than a fixed time limit. A fundamental juristic principle is that, particularly in a context such as the present, time should not run against a party until it knows of the determination.

[20] As will be apparent, this expression of principle was much broader than the instant facts—and expressed as “fundamental”.

⁷ Lawyers and Conveyancers Act 2006, s 198; Financial Advisors Act 2008, s 138; Education Act

1989, s 409; Immigration Advisers Licensing Act 2007, s 81; and Health Practitioners

_{Competence Assurance Act 2003, s 106.}

⁸ _{R v Vaihu [2010] NZCA 145.}

⁹ At [15].

[21] To return to the Act, both interpretations are available. Admittedly, the first interpretation is more natural linguistically, and one seemingly endorsed by the Legislature. However, that interpretation has the potential to give rise to injustice, especially as:

(a) There is no explicit power on the part of the Tribunal to extend time for the filing of an appeal.

(b) The Tribunal has concluded it possesses no such power.¹⁰

[22] In light of the Court of Appeal’s observations above and the approach in cognate disciplinary contexts, I conclude s 111 is better understood as referring to the date the Committee’s notice is served on the agent. This conclusion is without violence to the provision or the balance of the statute, because s 154 provides for modes of service, and these include orthodox modes such as leaving the decision at the agent’s last known address.¹¹ It follows service and the time for the commencement of the appeal period will not be indeterminate. And as Chambers J observed in R v Dixon: “The courts never support literalism at the expense of purpose and intent.” ¹²

Outcome

[23] The appeal is allowed on the basis Mr Kumandan’s appeal was filed within

time, albeit on the last available day.

[24] Mr Kumandan opposed the case being remitted to the Tribunal, essentially on the basis “enough was enough”. I disagree. Mr Kumandan is not prejudiced by this outcome, as it merely restores him to the position he would have been had the Tribunal concluded his appeal was lodged within time. That decision was made

_{recently: February of this year.}

¹⁰ _{Leaders Real Estate (1987) Ltd v Real Estate Agents Authority [2015] NZREADT 41.}

¹¹ _{Section 154(1)(b).}

¹² R v Dixon [2007] NZCA 398 at [28].

[25] Mr Kumandan sought costs and “damages”. He is not entitled to either.

...................................

Downs J