Wyatt v Real Estate Agents Authority

• Jurisdiction: New Zealand
• Judge: Gault J
• Judgment Date: 13 December 2019
• Neutral Citation: [2019] NZHC 3291
• Docket Number: CIV-2018-404-2880
• Court: High Court

UNDER the Companies Act 1993

IN THE MATTER of an appeal against a decision of the Registrar of Companies

Between

Gregory John Wyatt

Appellant

and

Real Estate Agents Authority

Respondent

[2019] NZHC 3291

Gault J

CIV-2018-404-2880

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Companies — company directed to change name by Registrar of companies — name similar to a statutory entity and Crown agent — Companies Act 1993 — Flags, Emblems, and Names Protection Act 1981

Appearances:

Appellant in person

D T Broadmore and L C Sizer for the Respondent

JUDGMENT OF Gault J

This judgment was delivered by me on 13 December 2019 at 10:30 am

pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

1 The appellant, Mr Wyatt, appeals under s 370 of the Companies Act 1993 against a decision of the Registrar of Companies (the Registrar) requiring the company Real Estate Authority Ltd to change its name. Mr Wyatt is the sole director.

2 The respondent, the Real Estate Agents Authority (the Authority), was established under s 10 of the Real Estate Agents Act 2008 (REAA). It is a statutory entity and a Crown agent under Schedule 1 of the Crown Entities Act 2004. The purpose of the REAA is “to promote and protect the interests of consumers in respect of transactions that relate to real estate and to promote public confidence in the performance of real estate agency work”. 1

3 Following the allocation of a fixture, Mr Wyatt confirmed that he wishes to have the appeal dealt with on the papers. The respondent does not oppose and abides the Court's decision on that issue. I consider the appeal can appropriately be dealt with on the papers.

Factual background

4 In February 2018 Mr Wyatt applied to the Registrar for approval of the name Real Estate Authority Ltd. On 27 February 2018 the Registrar approved that name and the company was incorporated.

5 In 2018 the Authority began using the operating name Real Estate Authority. Its website provided the following explanation:

A clarification on our name: The ‘Real Estate Authority’ or ‘REA’ is our operating name and how we should be referred to.

Our previous name — the ‘Real Estate Agents Authority’ or ‘REAA’ — is our legal name. It is only used for contracts we enter into and in the context of disciplinary decisions from Complaints Assessment Committees and our appearance before the Tribunal or other higher courts.

Registrar's decision

6 On 29 November 2018 the Assistant Registrar of Companies wrote to Mr Wyatt stating that the Registrar had become aware that the company name contravened

s 14(3)(c)(vi) of the Flags, Emblems, and Names Protection Act 1981 (FENPA), which prohibits the use of any word or statement that claims or implies the patronage of any Government department, namely the Authority. The letter stated that under s 22(2)(a) of the Companies Act 1993 the Registrar is not permitted to reserve a name, the use of which would contravene an enactment, and that the application to reserve the name Real Estate Authority Ltd should not have been accepted, therefore, the company was now required to change its name

Submissions

7 Mr Wyatt raises two broad grounds of appeal:

• (a) A Crown entity cannot have a different operating name unless Parliament says so.

• (b) There is no contravention of FENPA as there is no implication of patronage and, alternatively, the company's name was expressly authorised under s 22(3) of the Companies Act.

8 As to operating names, Mr Wyatt refers to s 25(1) of the Crown Entities Act which provides that the board is the governing body of a statutory entity, with the authority, in the entity's name, to exercise the powers and perform the functions of the entity. The REAA makes no provision for a different operating name. This can be contrasted with other Crown entities, in particular District Health Boards, which may adopt an operating name that is different from the name of the District Health Board with the written permission of the Minister. 2 Mr Wyatt relies on the Latin maxim expressio unius est exclusio alterius and the Supreme Court's discussion of it in Terminals (NZ) Ltd v Comptroller of Customs, 3 to warrant an inference that the omission of reference to an operating name in the REAA was intentional.

9 Mr Wyatt acknowledges there might be an issue with the names but submits it is not one of “patronage” under FENPA. Relying on s 15, he submits that patronage

refers to supply of goods or services to, or carrying out work for, any Government department

10 Mr Wyatt's alternative argument relies on the Registrar's approval under the Companies Act on 27 February 2018, which he submits made the name “expressly authorised by or under any other Act” in terms of s 14(4)(a) of FENPA.

11 The respondent submits that the name of the company implies the patronage of the Authority regardless of the weight placed on the operating name. Therefore, Mr Broadmore, counsel for the Authority, submits therefore that the issue of whether the Authority is entitled to operate under the name Real Estate Authority should not need to be determined in this appeal. In any event, he submits that the Crown Entities Act provides that a Crown entity, such as the Authority, may do anything that a natural person of full age and capacity may do. 4

12 Mr Broadmore also submits that whether a word or statement in a company's name claims or implies the patronage of a Government entity such as the Authority should be assessed by asking whether the words or statements either claim or imply that the company is supported or controlled by, or otherwise has the protection of, the department or entity. He submits that Real Estate Authority Ltd plainly claims or implies the support, protection or control of the Authority.

13 Alternatively, the use by the company of the name Real Estate Authority Ltd is not expressly authorised under s 22(3) of the Companies Act. Even if it was so authorised, the Registrar may still direct the company to change its name under s 24(1).

Nature of appeal

14 An appeal from a decision of the Registrar under s 370 of the Companies Act is by way of rehearing. 5 This Court's approach on such an appeal is settled following the Supreme Court's decisions in Austin, Nichols & Co Inc v Stichting Lodestar and

Kacem v Bashir. 6 The appellate court has the responsibility of considering the merits of the case afresh. 7 The appellate court must be persuaded that the decision is wrong, 8 but the weight it gives to the reasoning of the decision-maker under appeal is a matter for the appellate court's assessment. 9 Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. 10

15 Under s 370(2) of the Companies Act, on hearing the appeal, the Court may approve the Registrar's act or decision or may give such directions or make such determination in the matter as the Court thinks fit.

Discussion

Company names

16 Section 22(2)(a) of the Companies Act provides:

The Registrar must not reserve a name—

(a) The use of which would contravene an enactment; …

17 Section 22(3) provides:

The Registrar must advise the applicant by notice in writing—

• (a) Whether or not the Registrar has reserved the name; and

• (b) If the name has been reserved, that, unless the reservation is sooner revoked by the Registrar, the name is available for registration of a company with that name or on a change of name for 20 working days after the date stated in the notice.

18 Section 24(1) provides:

If the Registrar believes on reasonable grounds that the name under which a company is registered should not have been reserved, the Registrar may serve written notice on the company to change its name by a date specified in the notice, being a date not less than 20 working days after the date on which the notice is served.

FENPA

19 The Registrar's decision was based on s 14(3)(c)(vi) of FENPA. Section 14 in full provides:

14 Unauthorised use of words suggesting Royal or government patronage

(1) Subject to subsection (4) of this section, every person commits an offence against this Act who—

• (a) Causes any association (whether incorporated or unincorporated) to be formed under any name, title, style, or designation that includes any word or statement to which this subsection applies; or

• (b) Publicly uses in connection with any business, trade, or occupation any word or statement to which this subsection applies.

(2) Every association (whether incorporated or unincorporated) commits an offence against this Act which carries on its activities under any name, title, style, or designation that includes any word or statement to which subsection (1) of this section applies.

(3) Subsection (1) of this section applies to the following:

• (a) The word “Royal”:

• (b) The word “Government”:

• (c) Any other word or statement that claims or implies the patronage of—

  • (i) Her Majesty or any other member of the Royal Family; or

  • (ii) The Governor-General; or

  • (iii) The House of Representatives; or

  • (iv) The Government; or

  • (v) Any Minister of the Crown; or

  • (vi) Any Government department:

• (d) Any word or statement that claims or implies connection with any society or body incorporated by Royal Charter.

(4) Subsection (1) of this section does not apply to the use of any word or statement—

• (a) Expressly authorised by or under any other Act, or by—

  • (i) Her Majesty or the Governor-General in any case to which paragraph (a) of subsection (3)...