Ministry of Justice

Liability and penalty / licensee pleaded guilty to charge of unsatisfactory conduct for failure to disclose trustee and nominee position to vendors in sale of residential property / licensee did not contact vendors directly about nomination nor provide independent valuation nor seek informed consent / Real Estate Agents Act 2008, s72, s134, s135 / Professional Rules 2012, r6.1, r6.3, r6.4 / HELD / professional failings amounted to unsatisfactory conduct / gravity of offending at moderate level / licensee admitted liability and cooperated with Authority / no previous disciplinary history / licensee censured / ordered to pay $2,500 financial penalty / repayment of commission recoverable pursuant to s134 / licensee carried out real estate agency work beyond the point at which ASP became unconditional, notwithstanding receipt of commission / licensee ordered to repay portion of commission

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint alleged that licensee had misled purchaser with false information, inducing him to sign agreement for sale and purchase / Real Estate Agents Act 2008, s74 / applicant alleged Registrar failed to consider evidence the licensee provided misleading information prior to purchase / Registrar considered and correctly identified that relevant correspondence did not support the applicant’s allegation / licensee did not make any positive statements about property owner’s specific rights or that there was a covenant the owner could enforce / no error of fact or law / application dismissed / Registrar’s decision confirmed

Penalty and compensation / unsatisfactory conduct / purchasers of residential property later discovered no legal vehicle access as driveway crossed a neighbouring property / licensees failed to identify and disclose access issue / Real Estate Agents 2008, s93, s110 / Professional Conduct and Client Care Rules 2012, r5.1 and r10.7 / HELD / wrongdoing at the upper end of low level or the lower end of medium level / no intention to deceive, though relatively high degree of carelessness / lack of legal vehicle access a relatively significant defect / red flag should have alerted licensees to potential issue / Tribunal reprimanded licensees and imposed fine of $2,500 each / purchasers’ losses of $5,920.43 casually connected to licensees’ wrongdoing / purchasers’ own failure to recognise potential issues against professional background and licensees’ lack of intention to deceive justified 40 per cent total reduction in compensation / licensees each ordered to pay $1,776.13 in compensation

Appeal / appellants alleged that second respondent licensee knowingly failed to disclose lack of CCC for original dwelling / Committee found licensee’s reliance on conveyancing solicitor’s advice as to effect of subsequent CCC obtained was reasonable, though failure to discuss cancelled sale and purchase agreement to colleague who later listed property was unsatisfactory conduct / alleged Committee erred in not referring complaint to Tribunal to consider misconduct / Real Estate Agents 2008, s89, s107, s107A, s111 / Professional Conduct and Client Care Rules 2012, r5.1, r6.2, r6.4 / HELD / no evidence to suggest second respondent did not honestly believe in conveyancing solicitor’s advice that entire dwelling had a CCC / Committee correct to find licensee actually relied on solicitor’s advice / reliance was reasonable in the circumstances, given phrasing of CCC in conjunction with advice received / no evidence of intention to conceal / Committee’s decision confirmed / appeal dismissed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / licensee used offensive language to describe complainant in text communications with complainant’s agent / Real Estate Agents Act 2008, s72, s73, s74, s112 / HELD / licensee’s comment  was isolated communication / offensive language used relatively minor, falling short of threshold for unsatisfactory conduct or misconduct / no error of fact or law / application dismissed / Registrar’s decision confirmed. 

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complainant alleged licensee (also effectively acting as vendor) sold property without disclosing previous leak in building / further alleged vendor failed to disclose conflict of interest / Real Estate Agents Act 2008, s743a, s112, s136 / HELD / damage caused to property from burst pipe was repaired prior to sale / complainant, who had no connection to transaction, adduced no supporting evidence from purchaser / no evidence of material effect on property’s value following repairs / no defect to disclose / allegation of conflict of interest not supported by evidence / no error of fact or law / application dismissed / Registrar’s decision confirmed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint alleged licensee who acted for mortgagee sold property in mortgagee sale significantly below market value, failing to conduct open homes or property marketing / complaint licensee did not provide notice of transaction to tenant prior to settlement / Real Estate Agents Act 2008, s743a, s112 / Professional Conduct and Care Rules 2012, r9.1 / HELD / significant discrepancy between valuation and alleged sale price not itself evidence of wrongdoing / no evidence to support allegation there was no open home nor proper marketing / licensee’s client was the mortgagee, not the mortgagor / licensee required to act in the best interests of mortgagee unless that would be contrary to law / no evidence from mortgagee supporting complaint / no credible evidence supporting wrongdoing / no error or fact or law / application dismissed / Registrar’s decision confirmed

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, cl17 / HELD / licensee did not complete CPD by deadline / Registrar correctly followed statutory process / 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 not to pursue complaint as it only disclosed inconsequential matters / complaint licensee misled purchaser as to compliance with Healthy Home standards / licensee allegedly failed to disclose known defects and provide relevant Healthy Home documentation / Real Estate Agents Act 2008, s72, s73, s743a, s112 / HELD / no evidence to support allegations of misrepresentation by the licensee / no evidence of licensee making statement concerning property’s compliance with Healthy Homes standards / licensee reviewed information provided by council and visited property prior to passing vendor disclosure document to applicant / report concluded property was in tidy condition with no apparent structural or moisture ingress concerns / no evidence licensee failed to provide all Healthy Homes documentation at time of transaction / no error or fact or law / application dismissed / Registrar’s decision confirmed

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 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 / commercial lessee later found description of leased area size in advertising and agreement was incorrect / Committee did not inquire into complaint as it was inconsequential / incorrect advertising deemed technical breach with no material impact / Real Estate Agents 2008, s41, s72, s73, s792b, s111 / Professional Rules 2012, r5.1, r6.4 / HELD / allegations relating to property management generally not “real estate agency work” / unsubstantiated complaints could not amount to misconduct / however, licensee’s actions concerning procurement of lease “real estate agency work” / employment status immaterial / acted for “another person” / Committee failed to consider whether capable of misleading lessee and whether conduct lacked skill, care and diligence / delayed formal complaint - overlooked earlier complaint directly to licensee / inappropriately considered unsuccessful civil claim / decision reversed / Committee directed to inquire into complaint about area of premises

Appeal / sale of residential property following breakdown of marriage / appellant alleged that respondent licensees knew about personal circumstances and colluded to effect sale and did not act in best interests by failing to discuss open market advertisement, that no CMA or appraisal was provided / Committee joined director of agency to proceedings per allegation of improper supervision / Real Estate Agents 2008, s89, s111 / Professional Conduct and Client Care Rules 2012, r6.1, r6.2, r.6.4, r9.1, r9.2, r9.16, r10.1, r10.2 / HELD / appellant’s suggestion he was never provided a copy of CMA unsupported by evidence / CMA arrived at using due care, skill, expertise and judgement with reference to comparable sales information / subsequent sale of property at significantly higher price did not indicate deficiency in CMA / no evidence of undue or unfair pressure / joined respondent was not designated supervisor / no error of fact or law / Committee’s decision affirmed / appeal dismissed

Compensation referral / unsatisfactory conduct / Committee found licensee misrepresented extent of utility connections and failed to disclose geotechnical report to complainant purchasers / Real Estate Agents Act 2008, s72a, s93, s110 / Professional Rules 2012, r5.1, r6.4 / Fair Trading Act 1986, s43 / HELD / principles developed for award of loss or damage under FTA relevant to discretion to award compensation / broad and pragmatic approach taken to determine causal connection between losses claimed and contravening conduct / not open for Tribunal to review finding of unsatisfactory conduct in lieu of appeal to challenge determination / agency’s commission, vendor’s legal costs, complainants’ legal costs and LIM report fees attributable losses to unsatisfactory conduct / claim for loss of growth in property market unsubstantiated / compensation sum to achieve justice to parties / licensee acted in good faith though carelessly / licensees ordered to pay $34,437.38