Ministry of Justice

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint tender process was unfair and not transparent to complainant & that licensees misled vendor to advantage offer from listing agent’s client / Real Estate Agents Act 2008, s743a, s107A, s112 / HELD / no obligation to disclose (without vendor’s instructions) vendor would not accept, and had previously rejected, vendor finance condition / was vendor’s decision to bring forward tender deadline / no evidence licensees brought forward deadline themselves or acted contrary to vendor’s interests / no evidence vendors not aware of complainant’s interest in property / vendors not obliged to give complainant more time to improve offer / licensees not required to disclose information about previous offers (unless instructed by vendors) / licensees kept complainant informed to extent necessary / application dismissed / Registrar’s decision confirmed 

Costs / first compensation referral decision / Tribunal awarded compensation to complainant in the sum of $35,101.65 / parties invited to file submissions on costs / Real Estate Agents Act 2008, s931ha, s1104, s1105, s1106, s110A / HELD / Tribunal’s approach to costs awards differs from civil court proceedings / under s110A, Tribunal to consider whether and to extent any party has participated in good faith, facilitated or obstructed information gathering, and facilitated the resolution of issues / approach to compensation referral prioritises access to justice and would not wish to deter complainants from seeking compensation due to potential costs exposure / no adverse factors indicating costs should be awarded in favour of either party / licensees generally cooperative throughout / costs to lie where they fall

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

Compensation referral / Committee found licensee one failed to ensure property was sold as a going concern and include vendor’s GST registration in sale and purchase agreement (ASP) and licensee two failed to supervise / Real Estate Agents Act 2008, s110, s1105 / Professional Rules 2012, r5.1, r5.2, r8.3, r8.4, r9.8, r9.9 / KD v Donaldson [2023] NZREADT 12 / HELD / first compensation referral decision / Tribunal may have regard to principles from its compensation jurisdiction under s1102g / must apply, and must not overturn, Committee’s determination of any substantive matter in the case / no jurisdiction to award interest under Interest on Money Claims Act 2016 / satisfied loss caused by licensee’s unsatisfactory conduct / commission repayment by licensee should be taken into account as it offset vendor’s losses / 15 per cent reduction for vendor’s failure to mitigate loss by signing ASP  and not seeking legal advice / licensees ordered to pay $35,1011.65

Interlocutory application for full disclosure of confidential information / unsuccessful tenderer alleged licensees’ tender process was not transparent, did not reasonably explain shift in tender date, had unreasonable time constraints, and lacked proper communication with tenderer’s agent / Registrar relied on information not fully disclosed to complainant in determining not to pursue complaint, concluding it disclosed inconsequential matters / Real Estate Agents Act 2008, s743a, s105, s109, s112 / HELD / Tribunal considered unredacted documents to determine appropriateness of disclosure / failure to disclosure “secret” information prima facie breach of natural justice / however, complainant was provided sufficient description of documents to answer licensees’ defence / redactions appropriate in light of privacy interests / Registrar should have advised complainant its possession of confidential information but failure to do so not error of law / redacted information of insufficient p…

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / Real Estate Agents Act 2008, s74, s107A, s112 / Professional Conduct and Client Care Rules 2012, r5.1 and r6.4 / HELD / purchaser alleged licensee enticed consideration of property with lower price than in fact sought / Registrar overlooked licensee’s admission as to communicated price expectation / nonetheless, Registrar’s conclusion that licensee did not give incorrect or misleading advice justified / purchaser not misled as to price at critical time of making offer / purchaser also disputed licensee’s statements regarding leak / licensee assured purchaser that leak was historic / Registrar failed to consider evidence of licensee’s knowledge of ongoing leak and failure to disclose until after settlement / purchaser further alleged licensee unduly pressured her into purchase / frequency of phone communications reasonable / Registrar correct to find no evidence of undu…

Appeal / licensee conducted two visits to complainant tenant’s property / complainant alleged that licensee failed to attend one arranged outside-only viewing and later forcibly entered property without consent / Registrar took no further action / Real Estate Agents 2008, s743a and s111 / Professional Rules 2012 / HELD / evidence supported conclusion that second visit had been agreed upon and was not rescheduling of missed appointment / in any event, a licensee’s forgetfulness resulting in a missed appointment could not justify disciplinary response / no evidence that licensee misled complainant as to scope of two arrangements / only independent evidence supported licensee’s assertion of consented entry / appeal dismissed / Registrar’s decision to take no further action confirmed

Appeal / licensees advertised cottage as having electricity connection linked to main house / following settlement, purchasers were required to pay for installation of separate connection / Committee found licensees’ misrepresentation, albeit made innocently, amounted to unsatisfactory conduct / Real Estate Agents 2008, s111 / Professional Rules 2012, r5.4 and r6.4 / Tribunal directed licensees to apply for leave to produce fresh evidence / fresh evidence not considered in absence of such application / in any event, licensees’ submissions supported Committee’s determination that licensees had misrepresented there was a separate electricity connection / appeal dismissed / Committee’s finding of unsatisfactory conduct confirmed

Appeal / licensee provided purchaser with key to property prior to settlement without vendor’s permission / Committee found licensee guilty of unsatisfactory conduct / Committee ordered censure, $1,500 fine and refund of commission to sum of $3,000 / licensee appealed against penalty / Real Estates Agents Act 2008, s3, s4, s892b, s93 and s111 / Professional Rules 2012, r5.1, r9.1 and r9.5 / Tribunal admitted licensee’s fresh evidence of commission statement / evidence relevant, cogent and credible / Committee did not refer to any evidential foundation when fixing sum of compensatory order at $3,000 / interests of natural justice supported admission of evidence / commission refund should identify and relate to particular aspect of work relating to disciplinary findings / unsatisfactory conduct did not pertain to entire range of work provided / Committee’s refund sum excessive / $1,500 refund and $1,500 fine appropriate / Committee’s decision modified / appeal partially upheld

Appeal / complaint licensee and agency mismanaged conflict of interest and agency failed to appropriately supervise licensee / licensee’s family member purchased property / Committee found licensee and agency guilty of unsatisfactory conduct for failure to follow s134 / fined agency $9,000 and published its name / vendor appealed against penalty / Real Estates Agents Act 2008, s3, s4, s72, s73, s93, s111, s134, s136 / Professional Rules 2012, r6.4 / HELD / Tribunal clarified Committee’s liability findings / found Committee erred in failing to consider refund under s134 / complainants in disciplinary proceedings need not commence civil proceedings to recover under s134 / nexus required between subject of upheld complaint and refund / s134 does not require licensee to act under agency agreement nor any loss to vendor / refund punitive, not compensatory / licensee and agency ordered to refund commission shares / Committee’s decision modified / appeal partially upheld   

Liability and penalty / real estate agency pleaded guilty to amended charge of unsatisfactory conduct for non-compliance with Audit Regulations over one year period / failure to appoint auditor, notify Authority of trust account transactions, provide monthly balances, and prepare statement or statutory declaration / Real Estate Agents Act 2008, s72, s110 / Real Estate Agents (Audit) Regulations 2009, reg9, reg15, reg16 / HELD / Tribunal emphasised importance of trust account compliance for public protection / amount of monies transferred in and out of trust account were at times significant / accepted that breaches occurred inadvertently due to miscommunication and change in auditors / agency admitted liability and cooperated with Authority / no prior disciplinary history / company implemented changes to ensure future compliance / low to mid-level penalty appropriate / Tribunal ordered censure, required company officer to undergo training and imposed $5,000 fine

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 / HELD / did not complete CPD by deadline / Registrar correctly followed statutory process / Registrar must cancel licence as required by s54d / Registrar has no discretion to consider health or financial circumstances / no application for deferral or exemption made / licensees are responsible for ensuring they receive correspondence from Registrar / no error of fact or law / application dismissed / Registrar’s decision confirmed

Appeal / licensee advertised property as having “home automation” /  purchasers alleged that licensee had misrepresented that property featured a Control4 automation system / Committee took no further action / Real Estate Agents 2008, s111 / Professional Rules 2012, r6.4 / HELD / licensee provided base package material specifications which did not reference Control4 / purchasers made no queries about whether Control4 included and had obtained legal advice on sale and purchase agreement / purchaser had purchased base package with central hub wiring for smart home system / not proven that the licensee failed to accurately represent what was included in property’s home automation system / vendor’s evidence corroborated licensee’s evidence / appeal dismissed / Committee’s decision to take no further action confirmed