Ministry of Justice

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

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.