SOFT TECHNOLOGY JR LIMITED v JONES LANG LASALLE LIMITED [2022] NZCA 115

SOFT TECHNOLOGY JR LIMITED v JONES LANG LASALLE LIMITED [2022] NZCA 115 [5 April 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA164/2021CA630/2021CA719/2021[2022] NZCA 115BETWEEN SOFT TECHNOLOGY JR LIMITEDAppellantAND JONES LANG LASALLE LIMITEDRespondentCourt: Clifford JCounsel: D R Bigio QC and A C Eager for AppellantM C Harris and A G H Bradley for RespondentS A Armstrong and G S A Morrison for Applicant to InterveneJudgment:(On the papers)5 April 2022 at 3 pmJUDGMENT OF CLIFFORD JThe interlocutory application by the Real Estate Agents Authority to intervene inthese appeals is granted. The respondent is to file its substantive submissionsresponding both to the appellant and to the Authority by Friday 8 April 2022,with up to an additional five pages allowed to respond to the Authority'ssubstantive submissions. All questions of costs are reserved.____________________________________________________________________REASONS[1] This is an interlocutory application by the Real Estate Agents Authority tointervene in these appeals. The Authority makes that application because the appealsinvolve, amongst other things, the interpretation of s 126 of the Real Estate AgentsAct 2008. The Authority says that — contrary to the finding of the High Court —s 126 requires a written agency agreement signed by the agent and their client to be inexistence before an agent begins work on which or as a result of which commissionis payable.1[2] Given the Authority's statutory role as the relevant regulator, andthe significance of that point of statutory interpretation for the scheme of theReal Estate Agents Act, this is a proper case for a grant of leave to be made to allowthe Authority's intervention.[3] The Authority filed its application on 23 March 2022. These appeals are setdown to be heard on 27 April 2022. The respondent opposed the application by reason,amongst other things, of its late filing.[4] Constructive discussions between the parties provided for the basis of agreedconditions to apply if the application were to be granted. When agreed, thoseconditions were:(a) the respondent was to file and serve its submissions opposing theAuthority's application to intervene by 5 pm on Friday 25 March 2022;(b) counsel were available for a telephone conference the following weekif that would assist the Court;(c) without prejudice to the respondent's opposition, the Authority was tofile its substantive submissions by Friday 1 April 2022 (limited to sevenpages with no objection to the Authority elaborating orally if the Courtallowed, provided it did not impede on the respondent's time); and(d) the respondent's substantive submissions responding to both theappellant and the Authority were to be filed by Friday 8 April 2022,with up to an additional five pages allowed to respond to the Authority'ssubstantive submissions.1 Jones Lang Lasalle Ltd v Soft Technology Jr Ltd [2021] NZHC 351 at [108(e)].[5] The Authority filed its substantive submissions on the appeals onFriday 1 April as provided for in those conditions.[6] Furthermore, at a telephone conference held yesterday morning the respondent,on the basis of those conditions, advised whilst it did not consent to the Authority'sapplication, it no longer opposed it.[7] The application to intervene is granted accordingly. The respondent is to fileits substantive submissions responding both to the appellant and to the Authority byFriday 8 April 2022, with up to an additional five pages allowed to respond tothe Authority's substantive submissions.[8] The Authority is encouraged to focus its submissions on the disputed point ofstatutory interpretation outlined above.[9] All questions of costs as regards this application are reserved.Solicitors:Hesketh Henry, Auckland for AppellantGilbert Walker, Auckland for Respondent