Ministry of Justice

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

Penalty / licensee misled purchaser as to status of builder and existence of transferable guarantee / Real Estate Agents Act 2008, s3, s50, s93, s108, s1104, s1115 / Professional Rules 2012, r6.4 / licensee’s misrepresentation was careless but unintentional / breach of Rules occurred more than 10 years ago / licensee was novice agent at time of misrepresentation and not subject to disciplinary complaints in intervening years / no need for personal deterrence against repetition / disciplinary orders not warranted / no clear claim for compensation from purchaser / reference to significant legal costs allegedly incurred by purchaser not supported by breakdown of costs or documentary evidence / causative link between misrepresentation and loss unproven / no penalty orders imposed / passage of time since unsatisfactory conduct insufficient to displace presumption of publication of licensee’s identity in interests of transparency

Appeal / licensee failed to disclose removal of gate and shower glass wall in sale agreement and during final inspection / Committee found licensee guilty of unsatisfactory conduct and ordered replacement of gate and shower / Real Estate Agents Act 2008, s931f, s111 / Professional Rules 2012, r5.1, r6.2, r6.4 / HELD / licensee incorrectly applied “legalistic lens” to vendors’ query concerning removal of gate / should in fairness have disclosed to purchaser, irrespective of whether chattel or fixture, and despite intention to redevelop property / incorrectly advised vendors shower wall could be removed / no evidence of purchaser’s consent to shower wall removal / breaches of r5.1, r6.2 and r9.1 / properly assessed as low to middle gravity of offending / Committee lacked jurisdiction to order relief as consequences of licensee’s errors were no longer operative following demolition / Committee’s modified / liability decision and training order upheld / relief orders vacated

Appeal / complaint licensee failed to deduct GST from price of chattels included with property resulting in purchaser paying too much / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r5.1, r5.2 / HELD /  Tribunal disagreed with Committee’s assessment that fundamental level of GST knowledge required expertise beyond what could be expected of licensee / licensee required to have basic understanding of GST or prompt purchaser to obtain professional advice / potential oversight from licensee / however, purchaser received legal advice and continued with transaction notwithstanding GST error which licensee declined to correct / purchaser waited more than four years to make complaint / delay in bringing complaint does not extinguish rights but is adverse factor / purchaser’s decision to continue with transaction notwithstanding error fatal to complaint / Committee’s decision confirmed / appeal dismissed

Liability and penalty / misconduct / licensee pleaded guilty to disgraceful conduct for non-compliance with Audit Regulations over period of nearly two years / failure to appoint auditor, notify Authority of trust account transactions, provide monthly balances, prepare statement or statutory declaration, and maintain adequate records / drew upon monies to pay personal and business expenses / Real Estate Agents Act 2008, s73a, s110, s1102f, s122, s123, s125, / Real Estate Agents (Audit) Regulations 2009, reg5, reg6, reg7, reg8, reg9, reg14, reg15 / HELD / trust account compliance necessary for public protection / deliberate and intentional breaches / personally benefitted from trust monies despite no loss to any client / discrepancies between trust monies required and those held often significant / aggravated by disciplinary history / serious wrongdoing / public interest favoured publication / Tribunal ordered censure, $16,784.17 in costs, and 5 year prohibition from real estate work

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / Real Estate Agents Act 2008, s72, s73, s74, s112 / HELD / licensee’s property management was not real estate agency work and therefore could not be assessed as unsatisfactory conduct, only misconduct / misconduct requires conduct reasonably regarded by agents of good standing or reasonable members of the public as disgraceful / licensee’s communications to complainant were direct and could be perceived as abrupt and rude, but behaviour not “disgraceful” / communications relating to rent relief viewed in context of longstanding dispute as to alleged rent arrears which licensee and colleagues sought to resolve / no evidence of threatening behaviour / application dismissed / Registrar’s decision confirmed

Penalty / unsatisfactory conduct / licensee breached fiduciary obligation having entered into commission sharing agreement with purchaser which he failed to disclose to vendors / Real Estate Agents Act 2008, s72, s93, s110, s110A / Professional Rules 2012, r6.1, r6.3 / HELD / licensee’s conduct towards the serious end of unsatisfactory conduct, but not the graver wrongdoing of misconduct / wider real estate profession must be deterred from entering into arrangements unknown to client / first disciplinary matter in more than 10 years / licensee has had successful career, acknowledged wrongdoing and expressed remorse / licensee’s health considered / usual award of costs appropriate / licensee’s defence was unsuccessful but acted in good faith throughout proceedings / parallel civil proceedings immaterial to disciplinary costs / Tribunal ordered censure, $3,000 fine and 50 per cent costs ($22,000)

Appeal / licensee facilitated sale following relationship property division agreement / property owner alleged that licensee enabled unauthorised entry of valuer into property, accepted ex-husband’s instructions without agreement, and improperly changed duration of agency agreement / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r5.1, r6.1, r6.2, r6.4, r9.1 / HELD / no evidence of wrongdoing by licensee in allowing valuer to enter house / owner was informed prior to visit and did not object / owner did not inform licensee to deal only with her or correct understanding that ex-husband was fully active participant / however, licensee wrong to alter duration of signed agency contract without owner’s consent / breach of r5.1, r6.2 and r9.1 / licensee acted on another beneficial owner’s instructions and immediately took steps to rectify / threshold for disciplinary response not met / Committee’s decision confirmed / appeal dismissed