Ministry of Justice

Liability and penalty / misconduct / two licensees charged under s73b and s73c / first licensee marketed property for sale without agency agreement, failed to ensure conjunctional sale agreement was in place, failed to explain he was assisting second licensee, deprived agency of commission, performed real estate work without supervision, misled agency about commission / second licensee worked with first licensee without agreement between agencies / deprived agency of commission / Real Estate Agents Act 2008, s3, s73b, s73c, s93, s110, s110A / Professional Rules 2012, r5.1, r5.2, r6.2, r6.3, r6.4, r9.6 / HELD / both licensees plead guilty / reckless conduct but not dishonest / apologised and expressed remorse / first licensee continually failed to meet professional obligations / donated part of commission to charity / censured / $6,500 fine / second licensee intentionally paid full commission to first licensee / censured / $3,000 fine / 50 per cent costs ($1,552.50), split evenly

Liability / misconduct / licensee charged under s73b 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, s91 / Professional Rules 2012, r5.1, r6.1, r6.4, r9.1, r9.6, r9.9, r9.17 / HELD / breach of r9.6 / marketed lots by taking prospective purchasers to them, without agency agreement / breach of r5.1 and r6.4 / misrepresented lot sizes & lacked understanding of plans / should have sought clarification or recommended professional advice / purchasers relied on incorrect information / breach of r6.1, r9.1, r9.17 / disclosed vendor’s financial position without authority / breach of r5.1 and r9.9 / failed to ensure GST schedules were completed before agreements signed / breaches were seriously negligent or incompetent / charges upheld

Appeal / complaint licensee concealed identity of bidder from appellant & conspired with the bidder to enable appellant’s husband to purchase property & disclosed the reserve price / Committee took no further action / Real Estate Agents Act 2008, s892c, s111, s134, s136 / Professional Rules 2012, r6.2, r6.4 / HELD / licensee disclosed the name of the purchaser, a purported corporate entity / not required to disclose persons behind an incorporated entity, or that the company did not exist, unless the licensee knew the entity did not exist / disclosure would also be required if the licensee knew the husband intended to be nominated as purchaser, or if the bidder directed the licensee not to disclose their identity / no evidence that further disclosure was required / licensee did not conspire with bidder and husband / no evidence licensee disclosed reserve price to the bidder / bidder had prior knowledge of price expectations / appeal dismissed / Committee’s decision confirmed

Penalty / misconduct / licensee guilty (s73(c)(iii)) for recklessly contravening r6.3 by consensually hugging client, together with a peck on the cheek & their cheeks touching, and accidentally brushing of their lips / Real Estate Agents Act 2008, s3, s93, s110 / Professional Rules 2012, r6.3 / HELD / incident was consensual and not sexual / licensee was found to have overstepped professional boundaries / conduct was serious albeit a momentary lapse only / conduct at low-moderate to moderate level / licensee censured / ordered to pay $4,000 financial penalty / 20 per cent costs ($7,109)

Penalty / misconduct / first licensee guilty (s73b) for sending draft agreement to another licensee without deleting previous signatures and not ensuring new signatures were obtained / second licensee guilty (s73b) for failing to check whether he had consent to insert signatures / Real Estate Agents Act 2008, s3, s91, s110 / Professional Rules 2012, r5.1, r6.1, r6.3 / HELD / first licensee / two prior adverse disciplinary findings relevant / admitted wrongdoing early and co-operated / conduct at moderate to higher level / while not deliberate or dishonest, same outcome / first licensee censured / ordered to pay $10,000 financial penalty / second licensee / no prior disciplinary history / voluntary suspension of licence relevant / denied involvement for significant period before admitting wrongdoing / similar seriousness to first licensee / second licensee censured / ordered to pay $4,000 financial penalty / 50 per cent costs ($2,839), split evenly

Liability / misconduct / licensee charged under s73a (disgraceful conduct) for failing to account for $92,210 of bond money relating to 49 residential tenancies paid to his property management company to be transferred to Tenancy Services / instead, bond money was retained for use by his businesses / Real Estate Agents Act 2008, s73, s91 / Residential Tenancies Act 1986, s19 / HELD / licensee admits charge and apologised at the hearing / conduct is a marked and serious departure from the expected standard of a professional real estate agent and would be regarded by agents of good standing and reasonable members of the public as disgraceful / honesty is essential to achieve the purpose of the Act, particularly public confidence in the industry / charge upheld / penalty decision to follow

Costs applications by appellant and licensee / appellant unsuccessfully appealed Committee’s decision to take no further action / complaint and appeal alleged licensee was dishonest, acted in bad faith, and faked a document / Real Estate Agents Act 2008, s110A, s111 / HELD / no evidential basis for complaint / s110A2 factors not present / appellant did not lack good faith and did not obstruct process, and believed allegations to be true / no reasonable basis for appeal, particularly regarding dishonesty, fake document and bad faith allegations / licensee entitled to reasonable contribution towards costs, but in the absence of bad faith or obstruction, not entitled to indemnity costs / two-thirds of reasonable costs appropriate / costs of $11,560 awarded to licensee / no basis for appellant’s costs application

Appeal / complaint licensee did not disclose specific leak, conspired to have appellant vacate property to hide the leak, falsely alleged the appellant delayed listing and settlement, and overcharged for marketing / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r6.2, r10.7 / HELD / no breach of r10.7 or r6.2 / Committee addressed defects generally, did not specifically address specific leak / nevertheless, property marketed and sold on “as is, where is” basis, and evidence shows licensee disclosed specific leak to potential purchasers / not required to investigate gravity or source of leak / advice that vacant premises would achieve best sale price appropriate, no bad faith motive / no evidence of overcharging, or that licensee blamed appellant for delaying listing or settlement / licensees must be honest to owners about disbursements / appeal dismissed

Liability / misconduct / first licensee charged under s73b or s72b for using previous signed agreement to draft a new agreement, sending that new agreement to another licensee without removing previous signatures, and not ensuring new signatures were obtained / second licensee charged under s73a or s73b for amending new agreement to include initials, instead of having agreement signed / Real Estate Agents Act 2008, s3, s72b, s73a, s73b / Professional Rules 2012, r5.1, r6.1, r6.3 / HELD / neither licensee found to be a credible witness / first licensee breached rr5.1, 6.1 & 6.3, guilty under s73b / failure to delete signatures and initials of parties before forwarding document a serious departure from acceptable standards / second licensee guilty under s73b / failure to check whether he was acting correctly in inserting initials was seriously negligent / 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, s37, s54d, s55, s112 / Real Estate Agents (Continuing Professional Development Rules) Notice 2018, cl7 / 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 / no error of fact or law / application dismissed, Registrar’s decision confirmed

Appeal / complaint licensee and/or agency refunded deposit to incorrect party / relevant conduct occurred in 2003, complaint made in 2021 / Committee took no further action under s801a due to length of time that had elapsed / Real Estate Agents Act 2008, s801a, s111/ HELD / Committee’s use of s801a an exercise of discretion / Kacem v Bashir [2010] NZSC 112 / Committee’s decision has no error of law or principle, irrelevant considerations, failure to take into account relevant considerations, and is not plainly wrong / licensee has no documentation whatsoever relating to deposit monies and cannot provide a defence / relevant corporate agency is no longer a licensee and has been liquidated and removed from Companies Register / appeal dismissed   

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

Appeal / complaint licensee did not disclose suicide at property / Committee took no further action / Real Estate Agents Act 2008, s 111 / Professional Rules 2012, r 6.4 / HELD / purchasers contend licensee advised them of a sudden death at the property, but did not specify it was a suicide / no other evidence provided by purchasers / licensee and manager provided considerable supporting evidence as to disclosure of suicide / disclosure of suicide is confirmed in listing agreement / other prospective purchasers confirm the suicide was disclosed / other licensees at agency confirm disclosure requirements were clearly communicated by manager at team meetings / implausible that licensee disclosed suicide to other prospective purchasers but not the purchasers / appeal dismissed