Ministry of Justice

Appeal / complainant vendor alleged that licensees misled him regarding ability to modify settlement date and did not recommend he seek legal advice / Committee determined it was clear to vendor that the date could only be adjusted by purchasers’ mutual agreement and that he was advised to seek legal advice / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Conduct and Client Care Rules 2012, r5.1, r6.4, r9.7 / HELD / appellant vendor must have understood that settlement was due to occur on specified date unless both parties agreed otherwise, with prior confirmation / no correspondence supported allegation that licensees represented settlement as flexible / licensees expressly reminded vendor of relevant clause and of his ability to seek legal advice / Committee’s decision confirmed / appeal dismissed

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 / applicant’s misunderstanding as to second annual fee payment caused by erroneous assumption / 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 / purchasers entered into unconditional S&P agreement which could not settle due to lack of finance / incurred losses, including forfeited deposit / Committee found licensee engaged in unsatisfactory conduct in failing to exercise skill and care, and for failing to deal fairly with the parties / ordered $4,500 penalty and $6,678.44 in costs / Real Estate Agents 2008, s89, s111 / Professional Conduct and Client Care Rules 2012, r5.1, r6.2 / HELD / licensee aware of high risk aspects of transaction / took insufficient steps to mitigate risks / failed to raise or document vendor finance agreements / unsatisfactory conduct finding upheld / Committee erred in uplifting fine for lack of genuine remorse / fine reduced to $3,500 / Committee erred in costs orders / exercise of costs jurisdiction must adhere to natural justice / Committee provided brief reasons and failed to allow licensee opportunity to be heard / costs order reversed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint licensees failed to adequately communicate with complainant as to residential sale process relating to relationship property proceedings / alleged that licensees inappropriately managed and proceeded with sale, contrary to Family Court orders / Real Estate Agents Act 2008, s74, a112 / Professional Rules 2012 / HELD / licensees endeavoured to keep complainant informed throughout sale process / nature of dispute over compliance with Family Court orders not disciplinary matter involving licensees / allegation of unauthorised disclosure of information unsupported by evidence / licensees not responsible for safekeeping of complainant’s chattels and providing him access to property, especially given protection order in force restricting access / no evidence of misleading advertising / Committee’s decision upheld / no error of fact or law / application dismissed / R…

Application to review Registrar’s determination / Registrar cancelled licence as licensee failed to pay prescribed fee / Real Estate Agents Act 2008, s54h, s55, s112 / HELD / 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.

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint licensees failed to advise applicant that downstairs section of property had no “permit” / complaint licensees failed to explain that area still required “consent”, distinct from “permit” / Real Estate Agents Act 2008, s74, s112 / HELD / licensees not required to discover hidden or underlying defects, but must disclose known or likely defects to a customer / unauthorised work may be disclosable “legal defect” / licensees disclosed legal defect with downstairs area / reference to “permit” as opposed to “consent” immaterial given applicant’s due diligence / Committee’s decision upheld / no error of fact or law / application dismissed.

Appeal / property sold with numerous weathertight and other defects / building reports obtained by vendor, known to licensees, not disclosed to purchasers / Committee found unsatisfactory conduct for inadequate disclosure of defective window flashings, though not for defective roof or other items / licensees appealed against finding and penalty / purchasers appealed against dismissal of complaint regarding roof / Real Estate Agents 2008, s89, s111 / Professional Conduct and Client Care Rules 2012, r10.7 / licensees had no evidence supporting vendor’s assertion that window flashings had been repaired / re-inspection report indicated flashings had not been repaired / Committee correct to find breach / conversely, licensees’ failure to disclose specific roof defects immaterial given purchasers’ awareness of serious defects / re-inspection report suggested roof issues were addressed / $2,500 fine for licensee within acceptable range / appeals dismissed / Committee’s decision confirmed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint licensee misled purchaser as having a garage, when the garage was incomplete, defective and unconsented / Real Estate Agents Act 2008, s72, s73, s743a, s112 / Professional Rules 2012, r6.4, r10.7 / no evidence indicating that the licensee knew or should have known about the garage consent status or the incomplete retaining wall / no evidence of any “red flags” to otherwise notify the licensee about a possible issue with the garage’s consent status / Committee’s decision upheld / appeal dismissed / no error or 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 purchaser alleged listing licensees did not disclose that property was personal property of vendor licensee, pressured him to purchase, and that property was overpriced / Real Estate Agents Act 2008 / Real Estate Agents Act 2008, s74, s112, s136 /  HELD /  vendor licensee was not licensed at time of conditional sales agreement and therefore owed no obligation to disclose benefit / vendor obtaining licence shortly after settlement not captured by s 136 disclosure obligation / no evidence of property being sold at overvalue / price was determined by vendors and purchasers / preliminary inquiries supported dismissal of conflict of interest allegations / real estate transactions inherently stressful for parties / no evidence of undue or unfair pressure / no error of fact or law / application dismissed / Registrar’s decision confirmed.

Compensation referral / unsatisfactory conduct / Committee found license misled purchaser into believing a building consent application had been lodged, which did not in fact occur until after sale and purchase agreement had been signed / 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 / while “loss by reason of the licensee’s unsatisfactory conduct” is to be interpreted broadly, the loss must have “casual connection” or be “closely connected” to wrongdoing / Tribunal unable to reconcile two differing sums claimed in original and amended statement of claim, as well as two differing breakdowns of claimed damages / failure to explain relevance of annexed invoices and casual or close connection to licensee’s wrongdoing / loss not proven / claim for compensation dismissed

Appeal / appellant alleged that licensee failed to market property in best interests, concealed conflict of interest, exerted undue or unfair pressure, and sold property at an undervaluation / Committee determined to take no further action / Real Estate Agents 2008, s892c, s 111 /  Professional Conduct and Client Care Rules 2012, r9.6 / HELD / evidence supported that appellant wanted to conclude sale without tenant’s knowledge, with no marketing / no evidence licensee did not act in vendors’ best interests / no evidence that licensee received payment or benefit from purchasers, or was acting to vendors’ detriment / no evidence of conflict of interest / licensee’s repeated expression of confidence in opinion as to best sales price available in face of higher expectations not unlawful pressure / no evidence of duress or coercion / licensee’s CMA supported by evidence and independent valuation / no evidence property sold at undervalue / Committee’s decision confirmed / appeal 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

Appeal / appellants alleged that licensee took advantage of elderly vendor through undue pressure to sell property, failed to act in his best interests and in accordance with her fiduciary obligations, failed to fulfil professional obligations in relation to contractual documents, and committed elder financial abuse / Committee determined to take no further action / Real Estate Agents 2008, s72, s73, s80, s111, s126 / Professional Conduct and Client Care Rules 2012, r6.3, r9.1, 9.17 / HELD / consumer protection purposes underpin requirement for licensee to recommend legal advice prior to signing document / Committee erred in considering subsequent circumstances / cannot retrospectively satisfy obligation / nonetheless relatively minor breach did not warrant disciplinary response / fresh issue s 126 compliance issue fell outside appellate jurisdiction / evidence did not support allegations of financial misconduct or undue pressure / Committee’s decision confirmed / appeal dismissed