Ministry of Justice

Applications to adduce new evidence & for an oral hearing / alleged misrepresentation about difficulty obtaining council consent / Real Estate Agents Act 2008, s 105, s 107, s 107A, s 111 / Nottingham v Real Estate Agents Authority [2017] NZCA 1 / Eichelbaum v Real Estate Agents Authority (CAC 303) [2016] NZREADT 3 / Complaints Committee No.1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC) / HELD / admissibility / purchaser’s son’s statement and relevant email admitted by consent / purchaser’s wife’s evidence is hearsay & not cogent, cannot be adduced / licensee’s Deal Transaction Report could have been provided to Committee & not cogent, cannot be adduced / licensee’s wife’s evidence about who was at meeting is relevant & cogent; but hearsay or unimportant evidence inadmissible / oral hearing / critical factual issue turns on credibility of witnesses / interests of justice require oral hearing to give evidence and be cross-examined / applications partially granted

Appeals by licensee against liability and penalty & complainants against penalty / Committee found unsatisfactory conduct / ordered apology / $7,000 fine / Real Estate Agents Act 2008, s 72, s 89, s 111 / Professional Rules 2012, r 6.2, r 6.4 / HELD / licensee misrepresented occupation could occur next month but should reasonably have known house was nowhere near completed, in breach of rr 6.2 and 6.4 / withheld information as to the effect on occupation of the lack of council certificates and title, in breach of r 6.4 / developer’s intention to cancel agreement was confidential until actually cancelled, related adverse findings set aside / penalty / gravity of wrongdoing not affected by vacated findings / prior disciplinary history aggravating / fine confirmed / licensee prepared to apologise / not worthwhile for licensee to complete same training again / Committee had no power to refer or award compensation when conduct occurred / compensation not awarded / appeal partially allowed

Appeal / complaint licensee did not advise purchasers of a multi-offer situation, and did not give the complainant an opportunity to present their offer / failure to comply with fiduciary obligations, act in good faith and fairly & keep vendors well informed / Committee found unsatisfactory conduct / licensee censured / ordered to undergo training / $1,000 fine / Real Estate Agents Act 2007, s 72, s 89, s 111 / Professional Rules 2012, rr 6.1, 6.2, 6.4, 9.3 / HELD / Tribunal hearings initially adjourned, stayed, pending appellant’s medical circumstances / further adjournments required full medical certificate / no medical evidence provided which could justify failure to participate / appellant did not provide substantive submissions / appellant bears onus of proof / Committee’s decisions confirmed

Jurisdiction / Registrar’s determination / Registrar determined not to pursue a complaint as it only disclosed an inconsequential matter / applicant continued corresponding with the Authority over some months and the Authority continued to advise that the complaint remained closed / applicant then applied to review an email advising that the complaint remained closed / Real Estate Agents Act 2008, s 74(3), s 112 / Lawrence v Registrar of the Real Estate Authority [2021] NZREADT 44 / Leaders Real Estate (1987) Ltd v Real Estate Agents Authority [2015] NZREADT 41 / HELD / email advising the complaint remained closed is not a determination under s 112(1) / does not make findings or decisions concerning rights / merely confirms that an earlier decision had been made / review of substantive earlier determination is out of time / Tribunal has no power to extend time for review applications under s 112 / no jurisdiction / application dismissed

Appeal / vendor sold property to another purchaser / complaint licensee dealt unfairly with an unsuccessful offeror, leading to unfair sale process and wasted due diligence costs / did not advise of another higher offer, and did not engage in multi-offer process / also alleged licensee failed to disclose subsidence issue to successful purchaser / Committee took no further action / Real Estate Agents Act 2008, s 109A, s 111 / Professional Rules 2012, rr 5.1, 6.2, 6.4, 10.7, 10.8 / HELD / strike-outgrounds not met / reasonable to recommend due diligence / licensee not aware of other bidder at times relevant to allegations / successful purchaser dealt directly with vendor / licensee raised multi-offer process but vendor declined / licensee disclosed subsidence issue to purchaser when sending draft sale and purchase agreement / no evidence purchasers not told of subsidence issue by vendor / purchasers declined to speak to investigator / Committee’s decision confirmed

Appeal and cross-appeal / licensees did not provide REAA guide before entering into agency agreement / also attended vendor’s property to serve demand for commission and photographed service / Real Estate Agents Act 2008, s 127 / Professional Rules 2012, rr 5.1, 5.2, 6.3, 9.11 / HELD / vendors’ appeal against no further action decision on complaints about privacy and inadequate supervision / not unprofessional to lawfully effect personal service or take photograph / privacy rights properly enforced in other jurisdictions / no failure to properly supervise / licensees’ appeal against breach findings for rr 5.1 and 9.11 / minor breach of s 127(1) and rr 5.1 and 5.2 by failing to provide REAA guide before entering into agreement / guide was supplied by consent later that evening / r 9.11 only applies on notice of cancellation, not when agency agreement expires / no breach of r 9.11 / $3,000 fine per licensee vacated, substituted with $500 fine per licensee  DP

Unprofessional behaviour / licensee wrote to vendor expressing concern about the junior agent they listed with / whether conduct likely to bring real estate industry into disrepute / Vosper v Real Estate Agents Authority [2017] NZHC 453 / Watson v Real Estate Agents Authority (CAC 1906) [2021] NZREADT 37 / Real Estate Agents Act 2008, s 72, s 111 / Professional Rules 2012, r 6.3 / no breach of r 6.3 / isolated communication using moderate language / no intention to offend / complaint made by principal of junior agent’s firm, not consumer / text message arguably below standard expected and might be unacceptable, but not sufficient to warrant disciplinary response / licensee apologised and donated to charity / Committee’s decisions reversed / no further action 

Charge laid under s 91 of the Real Estate Agents Act 2008. Penalty decision. Found guilty of misconduct under s 73(a) of the Act. Tribunal records it would have ordered cancellation of licence if that had been open to it to do so. Defendant ordered to pay $1650 as contribution towards Committee's costs.

Charges laid under s 91 of the Real Estate Agents Act 2008. Penalty decision. Finding of misconduct under s 73(c)(iii) of the Act. Defendant censured, fined $4,000, ordered to complete Unit Standards 23136 and 26149 and ordered to pay compensation of $15,050.

Charge laid under s 91 of the Real Estate Agents Act 2008. Defendant admitted charge of unsatisfactory conduct by not entering into agency agreement and not disclosing personal involvement. Censured, ordered to pay fine of $4,000.

Appeal under s 111 of the Real Estate Agents Act 2008 against Complaints Assessment Committee for finding unsatisfactory conduct against the appellant in the marketing of a property for sale. Outcome: appeal declined. 

Appeals under s 111 of the Real Estate Agents Act 2008. Appeals against decision to take no further action on complaint of collusion, Committee’s finding that licensees guilty of unsatisfactory conduct in relation to non-disclosure, and appeal against penalty. Outcome: appeals dismissed. Applicant allowed costs.