Ministry of Justice

Appeal / licensee, neighbour of client vendor, omitted sale price of her property in CMA / licensee had sold own property to developer purchaser / Committee found licensee guilty of unsatisfactory conduct for failing to exercise skill and care, and failing to deal fairly with parties / also found agency guilty of unsatisfactory conduct for breaching supervisory obligations / Real Estate Agents Act 2008, s50, s89, s111 / Professional Conduct and Client Care Rules 2012, r5.1, r5.2, r6.4, r8.4 / HELD / licensee was in breach of obligation to deal fairly with parties in failing to disclose value of sale of her own property / factual finding that licensee did not disclose sale price over casual conversation / value relevant, recent and comparable / no supervisory failings by agency / branch manager not prosecuted / no evidence of systemic failure / no suggestion manager not suitably qualified / Committee’s determinations against licensee confirmed, determinations against agency reversed

Application to review Registrar’s determination / Registrar determined not to pursue complaint as it only disclosed inconsequential matter / parties filed joint memorandum inviting Tribunal to reverse Registrar’s decision by consent, so Registrar may refer matter to Committee / Real Estate Agents Act 2008, s743a / HELD / application granted, Registrar’s decision reversed

Compensation referral / unsatisfactory conduct / Committee found licensee marketed commercial property with incorrect rental return / goods and services tax (GST) specified as payable in addition to already GST-inclusive rent / Real Estate Agents Act 2008, s93, s110 / Professional Rules 2012, r5.1, r6.4 / rental return (yield) for commercial property a critical factor for purchasers / purchaser relied on representation, would have bid less knowing true yield / GST disclaimer in information memorandum does not displace express representation & does not account for errors beyond that document / settlement with vendor left unrecovered loss / no lack of care by purchaser / rent statements could not have alerted purchaser as it did not specify whether GST inclusive / legal costs negotiating with vendors not caused by agent’s wrongdoing, not awarded / general damages dismissed / licensee ordered to pay $46,875 (total loss of $62,500 reduced by 25 per cent as conduct not deliberate)

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / prospective purchaser applicant alleged licensee was incompetent or deceitful in his communications concerning rent review provisions, building consent and a building warrant of fitness relating to commercial property / applicant alleged Registrar made no proper assessment of complaint / Real Estate Agents Act 2008, s74 / licensee responded appropriately and professionally to applicant’s queries and contentions concerning rent review clauses / circumstances would not justify a disciplinary process given extent of licensee’s responses, whether ultimately substantively correct or incorrect / inquiries with vendor and building specialists in respect of building consent and warrant of fitness issues satisfied professional obligations / no evidence of unprofessional communications / Registrar’s decision confirmed / application dismissed.

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 concerned highly unusual buy-back sale agreement drafted by licensee / purchaser alleged financial loss and unprofessional conduct by two licenses, including introduction by one and drafting by the other / Real Estate Agents Act 2008, s74 / Registrar failed to consider relevant factors and to properly inquire into material allegations / multiple unusual features including high 28 per cent deposit and relationship between licensees and vendor-licensees warranted further investigation / natural justice required that complaint be referred to Committee / Tribunal reversed decision / matter referred to Committee for inquiry

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