Ministry of Justice

Liability / misconduct / licensee charged under s73ciii for acting in transaction without having any direct contact with client, and inserting client’s signature and initials on contractual documents without authority / Real Estate Agents Act 2008, s73, s126 / Professional Rules 2012, r5.1, r6.3, r9.6, r9.7, r12.2, r 12.3 / HELD / licensee did not attend hearing & admissions made prove charges / instructions were given by vendor’s daughter or assistant without proper authority from owner / breach of r9.6 as agency agreement invalid / breach of r9.7, r12.2 & r12.3 / licensee inserted signatures and had no contact with client / breach of r5.1 / obligation to communicate directly with client is fundamental to real estate work / breach of r6.3 / licensee’s conduct was wilful / attempted to conceal wrongdoing and lied to supervisor / charge upheld / penalty decision to follow

Appeal / licensee advertised property as legal home and income when minor dwelling was not legally consented as dwelling / Committee found unsatisfactory conduct / licensee appealed against publication order / sought to admit fresh evidence / Real Estate Agents Act 2008, s64aiv, s661fv, s84, s108, s111 / HELD / admitting fresh evidence concerning licensee’s health is in interests of justice / starting point on publication is open justice / gravity of wrongdoing is relevant / licensee was found guilty of unsatisfactory conduct, which is less serious than misconduct, and did not involve dishonesty / public does not need protecting from licensee / publication would likely seriously jeopardise her wellbeing / privacy of licensee trumps public interest in knowing wrongdoing of licensees / licensee and agency granted name suppression / appeal allowed

Penalty / unsatisfactory conduct / licensee found guilty under s72a (conduct falling short of expected standard) and s72b (conduct contravening Act or Rules) for misrepresenting to purchaser commercial property’s rental income / Real Estate Agents Act 2008, s931ha, s1102g, s1104, 110A / Professional Rules 2012, r5.1, r6.4 / HELD / first appearance before Tribunal / misrepresentation innocent but had no strong foundation / conduct low-medium in seriousness / not minor or technical breach as it concerned important matter for purchaser / licensee cooperated but no apology / Committee should have referred compensation / Tribunal can self-refer compensation if unsatisfactory conduct found on appeal / is consistent with consumer protection focus of Act / no compensation or relief awarded as no causal connection between purchaser’s expenses and losses and licensee’s misrepresentation / self-represented purchaser not entitled to costs / censured / ordered to pay $1,500 financial penalty

Application to review Registrar’s determination / Registrar cancelled licence as licensee failed to pay annual fee for keeping licence suspended / Real Estate Agents Act 2008, s54h, s55, s112 / HELD / licensee did not file submissions / not disputed that licensee was required to pay suspension fee by certain date, received required communications from Registrar, and did not make payment by deadline / Registrar correctly followed statutory process / Registrar must cancel licence as required by s54h / no error of fact or law / application dismissed, Registrar’s decision confirmed

Appeal / agency contract showed commission estimate included GST / agency charged additional GST on commission in invoice / Committee found unsatisfactory conduct in relation to agency and took no further action in relation to two licensees / Real Estate Agents Act 2008, s111, s126 / Professional Rules 2012, r5.1 / HELD / Committee correct to inquire into agency’s conduct / handwritten note on agency contract saying commission “Inc of GST” made by licensees / licensees knew and intended commission to be GST inclusive / Committee did not treat agency and licensees contradictorily / basis for agency’s unsatisfactory conduct was that the agency itself invoiced the GST to the vendors / agency lacked skill and care in issuing invoice when it knew licensees told vendors GST was already included / Committee’s order to refund GST not inequitable / contractual position between vendors and agency irrelevant in this case / appeal dismissed / Committee’s decision confirmed

Liability / misconduct / licensee charged under s73a with misconduct for producing false valuation report four times in respect of property he was seeking to acquire an interest in / licensee did not attend hearing / Real Estate Agents Act 2008, s73, s109A, s110 / HELD / licensee sought to pass off valuation report as legitimate and from reputable valuation company / licensee admitted facts underlying charge / Tribunal rejected explanation that it was impossible for valuations to occur during COVID-19 restrictions / forgery of valuation report is dishonest even though licensee would receive no financial benefit and vendors would suffer no loss had he been successful / honesty essential to achieving purpose of Act and maintaining public confidence in profession / conduct a marked and serious departure from required standard of conduct / conduct would be regarded by agents of good standing and reasonable members of the public as disgraceful / charges upheld / penalty decision to follow

Penalty / unsatisfactory conduct / licensee found guilty under s72a (conduct falling short of expected standard), s72b (conduct contravening Act or Rules) and s72d (unacceptable conduct) for harassing tenants in emails concerning property viewings, threatening to sue tenants & knowledge of Residential Tenancies Act 1986 falling short of obligations as a real estate agent selling a tenanted property / Real Estate Agents Act 2008, s3, s72, s73, s110, s110A / Professional Rules 2012, r5.2, r6.3, r9.1 / HELD / conduct at moderate level of seriousness / threats not as serious as threats made in Subritzky and Li Wang (Re Complaint No C26114) / conduct in harassing tenants in manner that she did and in threatening to sue tenants was inappropriate / failed to accept responsibility for conduct / costs reduced as most serious charges not upheld and agreed statement of facts filed / censured / ordered to pay $3,000 financial penalty / ordered to undergo training / 20 per cent costs ($3,148.56)

Application to review Registrar’s determination / Registrar cancelled licence as licensee failed to pay annual fee for keeping licence suspended / Real Estate Agents Act 2008, s54h, s55, s112 / HELD / licensee did not file submissions / not disputed that licensee was required to pay suspension fee by certain date, received required communications from Registrar, and did not make payment by deadline / Registrar correctly followed statutory process / Registrar must cancel licence as required by s54h / no error of fact or law / application dismissed, Registrar’s decision confirmed

Appeal / auctioneer misinterpreted indication of maximum price as bid and put purchaser under undue pressure at auction / licensee misrepresented property’s location and number of bedrooms / Committee found unsatisfactory conduct for misrepresenting number of bedrooms and took no further action on other heads of complaint / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r6.4, r9.2 / HELD / purchaser’s narrative of auction events improbable / common practice for auctioneer to privately negotiate with bidders when auction stalled / threshold for undue pressure is high / purchaser more likely than not understood he placed bid / online advertising text itself misleading as to location of property, but advertising material in totality not misleading / purchaser’s email was a submission / submissions process followed by Committee was proper / Tribunal agreed with penalty imposed by Committee for same reasons as Committee / appeal dismissed / Committee’s decision confirmed

Appeal / licensee misled or misrepresented to purchaser commercial property’s rental income, tenant identity and tenure, loan conditions, outgoings and property yield / withheld bank statements for rent / licensee and auctioneer put purchaser under undue pressure at auction / Committee took no further action / Real Estate Agents Act 2008, s72, s892c, s111 / Professional Rules 2012, r5.1, r6.4, r9.2, r9.4 / Vosper v Real Estate Agents Authority [2017] NZHC 453 / Tesar v Real Estate Agents Authority [2014] NZREADT 18 / HELD / breach of r5.1 &  r6.4 / statement of net annual rent implies actual rent paid and was misleading as actual rent paid was lower due to rental rebates / actual rent paid objectively significant to purchasers of commercial property, and purchaser was clear it was important / licensee can be liable for innocently misstating important information / other heads of complaint dismissed / unsatisfactory conduct in relation to rental income found / appeal partially allowed

Appeal / licensee marketed property as providing rental income when renting downstairs area for residential purposes not permitted / failed to disclose downstairs area was unconsented / licensee contacted purchaser after complaint was referred to Committee / Committee found unsatisfactory conduct / Real Estate Agents Act 2008, s4, s72, s111 / Professional Rules 2012, r5.1, r6.2, r6.3, r6.4, r10.7 / HELD / evidence shows marketing referred to income from residential and not commercial use / evidence shows downstairs area was unconsented / due diligence clause not a justification for failure to disclose unconsented downstairs area as licensee was aware of defects / email to purchaser was not real estate agency work, and even if it was, would not warrant disciplinary action / Committee should have had regard to context and content of email / Committee’s decision partially reversed / unsatisfactory conduct finding in relation to email vacated / penalty reduced / appeal partially allowed

Penalty / misconduct / former licensee found guilty under s73b (seriously negligent or seriously incompetent) for marketing lots without agency agreements, misrepresenting lot sizes & failing to ensure purchasers obtained professional advice, disclosing confidential information, and failing to ensure agreements contained material GST particulars before signature / Real Estate Agents Act 2008, s3, s73, s110, s110A / Professional Rules 2012, r5.1, r6.1, r6.4, r9.1, r9.6, r9.9, r9.17 / HELD / higher level of misconduct / lacked fundamental understanding of professional obligations and real estate transactions / no previous disciplinary history / voluntarily suspended license, but did not acknowledge responsibility or show remorse until after lengthy hearing / licensee indicated she had limited funds available / censured / ordered to pay $7,500 financial penalty / 50 per cent costs ($27,271.50)

Liability / licensee charged under s73 and s72 for communications with tenants as selling agent regarding consent for viewings / Evidence Act 2006, s50 / Real Estate Agents Act 2008, s4, s72, s73, s91, s109 / Residential Tenancies Act 1986, s48 / Professional Rules 2012, r5.2, r6.3, r9.1 / admissibility / Tenancy Tribunal and District Court decisions admissible / misconduct charges not proven / does not meet threshold for disgraceful conduct, not proven wilful or reckless breach of r6.3, or seriously incompetent or seriously negligent real estate work / unsatisfactory conduct found / breach of s72a, s72b (for breach of r5.2, r6.3) & s72d / licensee was acting as a real estate agent during conduct / harassed and threatened tenants / demonstrated unsound knowledge of Residential Tenancies Act 1986 / charges partially upheld / penalty decision to follow