Ministry of Justice

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

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matter / licensee referred complainant to brother for building works after being advised of roof defects and difficulty locating contractors / complainant alleged faulty workmanship following subcontracted works and inability to recover monies paid in error /  Real Estate Agents Act 2008, s72, s74, s112 / Professional Conduct and Client Care Rules 2012, r6.4, r10.2, r10.6, r10.7 / HELD / no evidence to suggest licensee was on notice of roof leaks prior to being contacted by complainant’s brother / no breach of disclosure obligations to prospective purchasers concerning roof issues / no conflict of interest in licensee referring complainant to brother having being advised of difficulty locating roofing contractors / no evidence of dishonesty in relation to progression of building works / no lack of written appraisal /  application dismissed / Registrar’s decision confirmed

Compensation referral / Committee found three licensees engaged in unsatisfactory conduct in failing to disclose known unconsented works in residential property / defects not disclosed in marketing materials nor to prospective purchaser / successful purchaser at auction seeks compensation for legal costs incurred, having cancelled agreement upon discovering unconsented works / Real Estate Agents Act 2008, s931ha, s1105 / Professional Rules 2012, r6.4 / HELD / principles developed by upper courts under Fair Trading Act 1986 relevant / quantum of loss or damage to be awarded, if any, to do justice to parties / purchasers undertook reasonable due diligence of property sold at auction two days after viewing, during COVID-19 restrictions / expenses reasonably and justifiably incurred, with loss arising due to licensees / no evidence of contributory negligence / high level of unsatisfactory conduct / licensees ordered to pay $10,076.44

Application to review Registrar’s determination not to pursue complaint was frivolous or vexatious or not made in good faith / sixth complaint stemming from initial allegation that licensee made misrepresentations in relation to property’s heating system / Real Estate Agents Act 2008, s743b, s792c, s112 / HELD / complainant sought to relitigate complaints previously made which have been dismissed by Registrar and Tribunal / sixth complaint simply repeats the substance of earlier complaints and is not made in good faith / no credible evidence to support allegations that licensee lied to Authority / complainant was advised of appeal rights to High Court following Tribunal decision but elected not to exercise those rights / application dismissed / Registrar’s decision confirmed

Professional responsibilities and professional practice / rubber stamping / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2e, cl14, cl18a, cl26ai, cl26aiii, cl26b, cl26d / adviser failed to maintain direct communications with client, could not communicate through unlicensed agent / breach of fundamental obligation to personally contract with and engage with visa applicant / adviser contributed to creating an environment for fraud to be perpetrated / failed to provide evidence of licence / failed to provide client opportunity to review INZ application / failed to personally confirm application lodged and provide timely updates / failed to retain visa application and records of communications / availability of visa application from INZ website immaterial to obligation to maintain records / however, no evidential foundation to indicate conflict of interest / alternative negligence heads dismissed / complaint partially upheld / sanctions to follow

Appeal / purchasers of residential property later discovered no legal vehicle access as driveway crossed a neighbouring property / licensees failed to identify and disclose access issue / Committee determined to take no further action, finding that reasonably competent licensee would not have been alerted to access issue / Real Estate Agents 2008, s111 / Professional Conduct and Client Care Rules 2012, r5.1 and r10.7 / HELD / licensee must “know what they are selling” but not expected to be solicitors, surveyors or building inspectors / obliged to disclose defects which are known or would appear “likely” or a “significant potential risk” / reasonably competent licensee would have identified significant risk posed by dual access to adjacent properties / fault apparent when documents considered alongside physical viewing of property / r5.1 and r10.7 breached / Committee’s decision reversed, finding of unsatisfactory conduct substituted against licensees / penalty decision to follow

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / applicant vendor alleged licensee failed to disclose conflict of independent dealings with purchaser, failed to adequately market property and settle transaction, and pressured vendor to sell by disclosing purchaser’s personal circumstances / Real Estate Agents Act 2008, s74, s112 / Professional Conduct and Client Care Rules 2012, r6.1, r6.3, r6.4, r9.1, r9.2, r9.3, r9.4, r 9.14, r9.16 / HELD / no evidence of improper conflict management / licensee had advised applicant of interest in engaging with purchasers prior to ASP / subsequent dealings were independent / no evidence to support allegation of undue pressure / no evidence of breach of professional obligations in respect of sales price achieved / no evidence of substandard marketing or settlement papers / application dismissed / Registrar’s decision to take no further action confirmed

Penalty / managing director and agency guilty of misconduct under s73(c)(i) for failing to comply with s 85 notice / Real Estate Agents Act 2008, s3, s73ci, s85, s86, s93, s109A, s110 / Committee emailed director seven times, over eight months, requesting information required by to carry out the investigation into salesperson employed by agency / sustained failure to provide information / ensuring compliance with Act should have been foremost in licensee’s mind upon receiving s85 notice / subsequent improvements to regulatory processes considered / gravity of misconduct at mid-range licensees censured / director licensee fined $5,000, agency fined $10,000 / misconduct gave rise to reasonably incurred costs / no justification to depart from starting point of 50 per cent costs / licensees ordered to jointly pay $13,556.25 in costs

Penalty / misconduct and unsatisfactory conduct findings against licensee, their supervisor and  agency arising from failure to refund vendor-paid advertising (VPA) account balances / Real Estate Agents Act 2008, s3, s44, s72a, s73b, s73ciii, s110 /  Professional Rules 2012, r5.1, r6.1, r8.3, r8.4, r9.13 and r10.6c / HELD / licensee’s conduct at moderate to high level seriousness / no previous disciplinary history / cooperated with Committee / inadequate supervision / conduct continued over relatively lengthy period and was reckless / suspension not necessary / Tribunal ordered censure, training, and imposed $10,000 fine / supervisor and agency’s conduct at mid-range seriousness / no previous disciplinary history / cooperated with Committee / deficient practices leading to vendors being owed refunds & inadequate supervision / Tribunal ordered censure, vendor refunds, and imposed $7,500 fine each

Appeal / purchasers of residential property later discovered building work was previously undertaken without CCCs being obtained / purchasers complained about licensee’s alleged lack of disclosure / Registrar took no further action due to lack of evidence that licensee failed to disclose absence of CCCs / Real Estate Agents 2008, s111 / HELD / not in dispute that at time of purchase there were no CCCs for two building consents including original dwelling / mutually agreed that licensee sent LIM report to purchasers prior to auction / however, purchaser contended licensee did not disclose absence of CCCs / licensee contended absence of CCCs verbally disclosed during inspection / Tribunal noted unreliability of purchaser and licensee’s memories given effluxion of time / on balance, purchasers failed to discharge burden of proving factual basis of complaint / appeal dismissed / Registrar’s decision to take no further action confirmed

Liability / misconduct / managing director and agency charged under s73(c)(i) for failing to comply with s 85 notice / Real Estate Agents Act 2008, s3, s73, s85, s86, s109A, s110, s154 / High Court Rules 2016, r15.1 / HELD / Committee emailed director seven times, over eight months, requesting information required by to carry out the investigation into the salesperson employed by agency / notice served correctly / reasonable basis to believe that the information could be obtained by managing director / director failed to provide sought information / no evidence director was unable to provide required documents / day-to-day responsibilities and impact of COVID-19 lockdowns did not excuse non-compliance / finding that director was aware of s 85 notice and appreciated risk of contravening Act / sustained failure to provide information / misconduct charges against director and agency upheld / penalty decision to follow

Interlocutory application to adduce new evidence and raise further issues in appeal against Committee’s decision to take no further action / appellants sought to produce affidavit and annexed emails as new evidence / Real Estate Agents Act 2008, s743b, s105, s111 / HELD / fresh evidence must be cogent and credible, could not have been provided to Committee with reasonable diligence, and would have important influence on outcome / new allegations of failure to recommend legal advice, undue pressure, lack of supervision and defects in sale and purchase agreement not raised before Committee / allegations immaterial to principal issue before Tribunal / application to raise new issues dismissed / fresh affidavit evidence accepted as evidence to the extent it records appellants’ narrative and is relevant to principal issue in appeal / additional documents unsupported by application rejected / application partially successful

Liability / misconduct and incompetent or seriously negligent real estate work charges against licensee, managing director and agency arising from imbalances in VPA account balances / Real Estate Agents Act 2008, s3, s50, s72, s73b, s73c, s s85, s86, s110 / Professional Rules 2012, r5.1, r6.1, r6.3, r8.3, r8.4, r9.13 and r10.6c / HELD / licensee’s practice of ticking “no refund” without confirmation reckless / licensee liable for reckless contravention per s73b / director and agency did not have appropriate checks and balances to control VPA funds / numerous failings seen as systemic failure to reconcile VPA / properly characterised as negligence / director and agency liable per s73b / license failed to adequately particularise marketing and advertising costs / unsatisfactory conduct per s72a / director and agency’s failure to supervise licensee’s handling of VPA inadequate / director and agency liable for misconduct per s73b / penalty decision to follow