Ministry of Justice

Appeal / purchasers of residential property later discovered building work was previously undertaken without CCCs being obtained / purchasers complained about licensee’s alleged lack of disclosure / Registrar took no further action due to lack of evidence that licensee failed to disclose absence of CCCs / Real Estate Agents 2008, s111 / HELD / not in dispute that at time of purchase there were no CCCs for two building consents including original dwelling / mutually agreed that licensee sent LIM report to purchasers prior to auction / however, purchaser contended licensee did not disclose absence of CCCs / licensee contended absence of CCCs verbally disclosed during inspection / Tribunal noted unreliability of purchaser and licensee’s memories given effluxion of time / on balance, purchasers failed to discharge burden of proving factual basis of complaint / appeal dismissed / Registrar’s decision to take no further action confirmed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / Real Estate Agents Act 2008, s74, s107A, s112 / Professional Conduct and Client Care Rules 2012, r5.1 and r6.4 / HELD / purchaser alleged licensee enticed consideration of property with lower price than in fact sought / Registrar overlooked licensee’s admission as to communicated price expectation / nonetheless, Registrar’s conclusion that licensee did not give incorrect or misleading advice justified / purchaser not misled as to price at critical time of making offer / purchaser also disputed licensee’s statements regarding leak / licensee assured purchaser that leak was historic / Registrar failed to consider evidence of licensee’s knowledge of ongoing leak and failure to disclose until after settlement / purchaser further alleged licensee unduly pressured her into purchase / frequency of phone communications reasonable / Registrar correct to find no evidence of undu…

Liability / misconduct and incompetent or seriously negligent real estate work charges against licensee, managing director and agency arising from imbalances in VPA account balances / Real Estate Agents Act 2008, s3, s50, s72, s73b, s73c, s s85, s86, s110 / Professional Rules 2012, r5.1, r6.1, r6.3, r8.3, r8.4, r9.13 and r10.6c / HELD / licensee’s practice of ticking “no refund” without confirmation reckless / licensee liable for reckless contravention per s73b / director and agency did not have appropriate checks and balances to control VPA funds / numerous failings seen as systemic failure to reconcile VPA / properly characterised as negligence / director and agency liable per s73b / license failed to adequately particularise marketing and advertising costs / unsatisfactory conduct per s72a / director and agency’s failure to supervise licensee’s handling of VPA inadequate / director and agency liable for misconduct per s73b / penalty decision to follow

Penalty / licensee misled purchaser as to status of builder and existence of transferable guarantee / Real Estate Agents Act 2008, s3, s50, s93, s108, s1104, s1115 / Professional Rules 2012, r6.4 / licensee’s misrepresentation was careless but unintentional / breach of Rules occurred more than 10 years ago / licensee was novice agent at time of misrepresentation and not subject to disciplinary complaints in intervening years / no need for personal deterrence against repetition / disciplinary orders not warranted / no clear claim for compensation from purchaser / reference to significant legal costs allegedly incurred by purchaser not supported by breakdown of costs or documentary evidence / causative link between misrepresentation and loss unproven / no penalty orders imposed / passage of time since unsatisfactory conduct insufficient to displace presumption of publication of licensee’s identity in interests of transparency

Appeal / licensee failed to disclose removal of gate and shower glass wall in sale agreement and during final inspection / Committee found licensee guilty of unsatisfactory conduct and ordered replacement of gate and shower / Real Estate Agents Act 2008, s931f, s111 / Professional Rules 2012, r5.1, r6.2, r6.4 / HELD / licensee incorrectly applied “legalistic lens” to vendors’ query concerning removal of gate / should in fairness have disclosed to purchaser, irrespective of whether chattel or fixture, and despite intention to redevelop property / incorrectly advised vendors shower wall could be removed / no evidence of purchaser’s consent to shower wall removal / breaches of r5.1, r6.2 and r9.1 / properly assessed as low to middle gravity of offending / Committee lacked jurisdiction to order relief as consequences of licensee’s errors were no longer operative following demolition / Committee’s modified / liability decision and training order upheld / relief orders vacated

Appeal / complaint licensee failed to deduct GST from price of chattels included with property resulting in purchaser paying too much / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r5.1, r5.2 / HELD /  Tribunal disagreed with Committee’s assessment that fundamental level of GST knowledge required expertise beyond what could be expected of licensee / licensee required to have basic understanding of GST or prompt purchaser to obtain professional advice / potential oversight from licensee / however, purchaser received legal advice and continued with transaction notwithstanding GST error which licensee declined to correct / purchaser waited more than four years to make complaint / delay in bringing complaint does not extinguish rights but is adverse factor / purchaser’s decision to continue with transaction notwithstanding error fatal to complaint / Committee’s decision confirmed / appeal dismissed

Liability and penalty / misconduct / licensee pleaded guilty to disgraceful conduct for non-compliance with Audit Regulations over period of nearly two years / failure to appoint auditor, notify Authority of trust account transactions, provide monthly balances, prepare statement or statutory declaration, and maintain adequate records / drew upon monies to pay personal and business expenses / Real Estate Agents Act 2008, s73a, s110, s1102f, s122, s123, s125, / Real Estate Agents (Audit) Regulations 2009, reg5, reg6, reg7, reg8, reg9, reg14, reg15 / HELD / trust account compliance necessary for public protection / deliberate and intentional breaches / personally benefitted from trust monies despite no loss to any client / discrepancies between trust monies required and those held often significant / aggravated by disciplinary history / serious wrongdoing / public interest favoured publication / Tribunal ordered censure, $16,784.17 in costs, and 5 year prohibition from real estate work

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / Real Estate Agents Act 2008, s72, s73, s74, s112 / HELD / licensee’s property management was not real estate agency work and therefore could not be assessed as unsatisfactory conduct, only misconduct / misconduct requires conduct reasonably regarded by agents of good standing or reasonable members of the public as disgraceful / licensee’s communications to complainant were direct and could be perceived as abrupt and rude, but behaviour not “disgraceful” / communications relating to rent relief viewed in context of longstanding dispute as to alleged rent arrears which licensee and colleagues sought to resolve / no evidence of threatening behaviour / application dismissed / Registrar’s decision confirmed

Liability and penalty / real estate agency pleaded guilty to unsatisfactory conduct for its failure to appropriately supervise new agent / agent failed to read building report and identify potential weathertightness issues / agent did not bring report to attention of potential purchasers but recommended independent building report / Real Estate Agents Act 2008, s3, s50, s72b, s93, s110, s1102f / Professional Rules 2012, r8.3 / HELD / Tribunal satisfied agency’s conduct amounted to unsatisfactory conduct / no evidence of pattern of unsatisfactory conduct amongst inexperienced salespeople at agency / unsatisfactory conduct most likely arose from agent’s misunderstanding as to supervisory structure / agency has since taken steps to revise supervision policies to ensure situation not repeated / no previous disciplinary record / agency cooperated with disciplinary processes / Tribunal ordered censure and imposed $7,500 fine

Application to review Registrar’s determination / Registrar cancelled licence as licensee failed to complete required continuing education / Real Estate Agents Act 2008, s54d, s55, s112 / Real Estate Agents (Continuing Professional Development Rules) Notice 2018 / HELD / did not complete CPD by deadline / Registrar correctly followed statutory process / Registrar must cancel licence as required by s54d / licensees are responsible for ensuring they receive correspondence from Registrar / no error of fact or law / application dismissed, Registrar’s decision confirmed   

Appeal / complaint that licensee placed unauthorised bid at auction and misrepresented bid to induce further bid / licensee disclosed identity of other bidder to purchaser / Committee took no further action / Real Estates Agents Act 2008, s3, s4, s111 / Privacy Act 2020 / Professional Rules 2012, r5.1, r6.2, r6.4 / HELD / purchaser did not establish that licensee made bid without instruction or falsely informed purchaser that bid was made by other known bidder / purchaser’s evidence as to bidding instructions contradicted bidding history at auction / suggestion that licensee misled purchaser as to leading bid implausible / purchaser may have forgotten or become confused as to instructions / licensee breached bidder’s privacy by disclosing identity and bidding number / breach of r5.1 and r6.2 but no disciplinary response required due to agency’s (barely adequate) corrective actions / threshold for unsatisfactory conduct not met / appeal dismissed / Committee’s decision confirmed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / Real Estate Agents Act 2008, s74, s112 / HELD / second complaint / Registrar’s decision on first complaint was not reviewed / Tribunal’s task is to determine whether Registrar appropriately exercised discretion under s74 / no evidence supporting allegations against licensee / not shown that Registrar’s findings were wrong / application dismissed / Registrar’s decision confirmed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / Real Estate Agents Act 2008, s72, s73, s74, s112 / Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012, r10.2 / Kacem v Bashir [2010] NZSC 112 / HELD / satisfied appraisal met requirements of r 10.2 / licensees not expected to predict future rateable value of properties / no evidence of any undue influence or pressure on part of licensees / no evidence of unsatisfactory conduct or misconduct requiring disciplinary action / not demonstrated Registrar’s decision was wrong / application dismissed / Registrar’s decision confirmed