Ministry of Justice

Appeal / complaint licensees failed to disclose relevant information about an agreement affecting lessee’s liability for outgoings / Committee found unsatisfactory conduct / Real Estate Agents Act 2008, s72, s111 / Professional Rules 2012, r6.2, r6.4 / HELD / Tribunal not persuaded Committee’s conclusions were wrong / property was advertised as having a specific return, “+ ... OPEX” / failure to draw attention to a known agreement between vendor and lessee, reducing lessee’s liability for outgoings, affected purchaser’s knowledge of expected return / insufficient to rely on purchaser’s solicitor to identify agreement bundled in with sale and purchase agreement / licensees were also aware purchasers could have claimed a credit from vendor at settlement and did not disclose this / no submissions that Committee made a legal error in setting penalty / appeal dismissed / Committee’s decision confirmed

Liability / licensee charged under s73a & s73ciii / licensee recklessly contravened r6.3 by consensually hugging client, together with a peck on the cheek & their cheeks touching, and an accidental brushing of their lips / conduct occurred at remote open home and the parties were not previously known to each other / Real Estate Agents Act 2008, s3, s73, s91, s108, s110 / Professional Rules 2012, r6.3 / HELD / conflicting evidence given by complainant and licensee / Tribunal found complainant’s evidence was a fabrication due to an implausible narrative, an inconsistency with another witness, and evasiveness on whether she shared certain personal information / on licensee’s evidence, event was consensual and not disgraceful / however, conduct would likely bring industry into disrepute, as private space is critical in professional relationships / licensee was recklessly indifferent to the rules as he would have known it was inappropriate / penalty decision to follow

Application to review Registrar’s determination / Registrar cancelled licence as person failed to complete required continuing education / Real Estate Agents Act 2008, s54d, s55, s112 / Real Estate Agents (Continuing Professional Development Rules) Notice 2018 / HELD / not disputed that licensee was required to complete CPD, received required communications from Registrar, and did not complete CPD / statutory process followed correctly / Registrar must cancel licence as required by s54d / no error of fact or law / application dismissed, Registrar’s decision confirmed

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

Liability and penalty / salesperson charged under s73a / agency charged under s73ciii or s73b / salesperson forged signatures on six agency agreements / agency internally disciplined salesperson when first forgery discovered, but did not report misconduct to REAA / Real Estate Agents Act 2008, s3, s73a, s73b, s73ciii, s91, s110, s1102e, s110A / Professional Rules 2012, r7.2 / HELD / salesperson admitted disgraceful conduct / forgery deceitful, disgraceful, despite no loss or financial gain / ordered censure / licence would have been cancelled if held, instead s1102e order made prohibiting engagement for five years / no fine / agency admitted wilful contravention of r7.2, s73ciii charge upheld / internal handling motivated by welfare concern, but should have advised REAA of concerns with report / after learning of first forgery, should have investigated other sales / low-level wrongdoing / ordered censure / $2,000 fine / 50 per cent costs ($4,000), split evenly

Application to review Registrar’s determination / Registrar cancelled licence as person failed to complete required continuing education / Real Estate Agents Act 2008, s54d, s55, s112 / Real Estate Agents (Continuing Professional Development Rules) Notice 2018, cl7 / HELD / applicant did not file submissions / no dispute applicant failed to complete continuing education / satisfied Registrar made no error of law and followed correct process / s54 is imperative and if one provision applies, the Registrar has no discretion not to cancel the licence / application dismissed, Registrar’s decision confirmed

Appeal / complaint licensees misleadingly advertised property / ad specified there were two quality houses & licensees provided rental appraisal for both / bungalow lacked resource consent / whether licensees should have advertised there was no resource consent / Committee found unsatisfactory conduct / Vosper v Real Estate Agents Authority [2017] NZHC 453 / Professional Rules 2012, r 6.4 / HELD / question is whether statement or omission is capable of misleading a customer / advertisement accurate, not misleading, bungalow habitable and occupied / evidence demonstrates bungalow did not need resource consent at the time of sale as it was built before consent required / licensees did not tell purchasers bungalow had resource consent & advised all prospective buyers it did not / lack of resource consent immaterial / Committee’s decision reversed / unsatisfactory conduct finding vacated / penalty set aside / appeal allowed

Appeal / complaint licensee took commission before contractually entitled, did not hold deposit in trust account until agreement was fully unconditional, and should have refunded full deposit when agreement was cancelled / Committee took no further action / Real Estate Agents Act 2008, s111, s122, s124, s126 / Professional Rules 2012, r9.1 / HELD / applications to introduce further evidence declined / jurisdiction / fresh complaint licensee did not comply with s126 cannot be addressed on appeal / Tribunal not persuaded Committee was wrong that licensee entitled to take commission when agreement was declared unconditional / consequentially, licensee did not breach fiduciary duties or duties as stakeholder / appeal dismissed, Committee’s decision confirmed

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-out grounds 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