The case is headed into its fifth year of litigation, in 2017, following a just-released decision from the High Court at Dunedin, and is set to go back before the Real Estate Agents Authority (REAA).
Justice Cameron Mander’s decision notes that all parties involved could "claim some level of success" from the High Court appeal, which was heard in late September over two days and has just been released.
The case before the High Court was an appeal lodged by Edinburgh Realty and the Sievwrights contesting the jurisdiction of the REAA’s disciplinary tribunal, which also included directions from the tribunal that another REAA body formulate charges of misconduct.
The matter is between Edinburgh Realty and Barclay Sievwright and his sons Clayton and Lane, and Dunedin woman Glenys Scandrett and the REAA.The Sievwright Family Trust sold a Sim St house to Mrs Scandrett in 2009.
However, she sold it for $237,000, which was a "significant loss", in July 2011, allegedly because of the condition of the house, and laid a complaint with the REAA in July 2012.
Mrs Scandrett has sought compensation, reported in the past of more than $100,000, with the case coming before the courts and the REAA’s separate disciplinary tribunal and its (lower) complaints assessment committee, prompting several appeals, cross-appeals and determinations.
The REAA’s disciplinary tribunal had quashed an earlier complaints assessment committee finding of unsatisfactory conduct and $17,000 of fines against Edinburgh and the Sievwrights, and referred the case back to the REAA committee, with directions to formulate charges of misconduct.
In backgrounding the earlier REAA decisions, Justice Mander included comments from the REAA’s earlier tribunal decision, in quashing the (lower) complaints assessment committee decision.
"Simply put, when we stand back and take an objective look at the evidence overall with sensible inferences, we do not find it credible that the Sievwright licensees were unaware of the state of the [Sim St] property at material times."
However, Dunedin QC Colin Withnall, acting for Edinburgh and the Sievwrights, contested the REAA tribunal had no jurisdiction to make its findings.
He further claimed the REAA erred in several instances, including that it failed to consider the individual positions of the Sievwrights and that the Sievwrights’ actions constituted real estate work.
"The tribunal had no jurisdiction to remit the case back to the committee with a direction to frame and lay charges; and if the tribunal did have jurisdiction, it exercised it improperly and contrary to law," Mr Withnall’s appeal said.
On the question of whether the Sievwrights’ actions constituted real estate work, Justice Mander said he was satisfied their conduct "fell within the definition of real estate agency work".
"In my view, it is clear that Edinburgh Realty, as the agency, was selling the property as a normal part of its ordinary business.
"To the outside world, the Sievwrights’ direct and indirect involvement with the property was as licensed salespersons of Edinburgh Realty, both when initially marketing the property and subsequently prior to its settlement," Justice Mander said.
On Mr Withnall’s’s question of whether the REAA’s disciplinary tribunal had jurisdiction, and direction to frame charges, Justice Mander said the REAA’s disciplinary tribunal had no jurisdiction to direct the (lower) complaints assessment committee as to charges it should lay, but only to direct its reconsideration to decide "whether and what charges should be laid".
Justice Mander said the original findings of the complaints assessment committee, that brothers Lane and Clayton Sievwright had no knowledge of the house’s defects, was "reinstated" and will not form any part of the case to be considered by the complaints assessment committee.
Justice Mander said while a new REAA complaints assessment committee had determined to lay charges, "to lay new charges was premature".
"I consider both sets of parties can claim some level of success on the appeal," Justice Mander said, leaving each party to cover its own costs.
