Ministry of Justice

Liability and penalty / real estate agency admitted misconduct for failure to submit monthly trust account reconciliations on time over three financial years, breaching Audit Regulations on 25 occasions / breaches included delays due to staff changes, administrative issues and COVID-19 disruptions / corporate defendant / charge amended by consent / Real Estate Agents Act 2008, s73b, s911d, s110, s1102f / Real Estate Agents (Audit) Regulations 2009, reg15 / HELD / Tribunal emphasised importance of trust account compliance for public protection / misconduct aggravated by repeated non-compliance despite reminders and inadequate systems to safeguard client funds / mitigating factors included admission of liability, cooperation with Authority, no previous disciplinary history and acknowledgement of COVID-19 impact / Tribunal ordered agency to pay $7,000 fine, and censure

Applications to review Registrar’s determination and for leave to adduce new evidence / Registrar determined not to pursue complaint as it only disclosed inconsequential matter / Real Estate Agents Act 2008, s743a, s112, s137 / Professional Rules 2012, r10.3 / Kacem v Bashir [2010] NZSC 112 / Wilson v Registrar of the Real Estate Agents Authority [2023] NZREADT 2 / HELD / fresh, credible and cogent test for new evidence appropriate for s 112 reviews, but should only be applied in context of limited grounds of review in Kacem / applicant adduced no further evidence that was not already before Registrar / no evidence to support allegation that licensee’s advertising was misleading, that licensee was overcharged for advertising services, or that licensee’s manager failed to supervise and manage the licensee adequately / no error of fact or law / applications dismissed / Registrar’s decision confirmed

Application to review Registrar’s determination / Registrar cancelled licence as licensee failed to pay annual fee for keeping licence suspended / HELD / licensee notified that application would be dismissed if submissions not filed / licensee did not file submissions / no error by Registrar in cancelling licence / application dismissed, Registrar’s decision confirmed

Appeal / licensee allegedly made false statement to purchaser there were problems with body corporate resulting in loss of conditional offer / did not promptly remove web advertisements after sale of two properties went unconditional / Committee took no further action / Real Estate Agents Act 2008, s111 / HELD / alleged conversation not proven on balance of probabilities given purchaser and licensee denied it took place / any such conversation did not constitute real estate agency work / licensee was not engaged in the vendor’s transaction or in any other transaction / was not doing work on behalf of another person or for the purpose of any transaction involving licensee or buyer / no evidence statement was false / conversation could not amount to unsatisfactory conduct or misconduct / discussion with vendor also not real estate agency work / extended web advertisement did not affect vendor / was promptly removed / appeal dismissed / Committee’s decision confirmed

Appeal / licensee failed to inform purchaser that property’s spa pool was not compliant and of risk of asbestos in ceiling / Committee found unsatisfactory conduct in relation to spa pool / took no further action in relation to asbestos issue / purchaser appealed against decision to not refer compensation and take no further action / Real Estate Agents Act 2009, s931f, s931ha, s111 / Professional Rules 2012, r5.1, r6.2, r6.4, r10.7 / HELD / conduct in relation to spa pool not minor or technical / Committee should have referred compensation, but Tribunal would not have awarded it as failure to pass on council’s information not the operative or real cause of purchaser’s loss / licensee gave written warning spa area was unconsented / purchaser should have asked what warning meant / presence of asbestos in textured ceiling only a possibility and not likely or significant potential risk / no defect requiring disclosure / no breach of Rules / appeal dismissed / Committee’s decision confirmed

Appeal / ruling on whether Committee correct not to refer compensation / Committee found licensee guilty of unsatisfactory conduct for completing GST schedules in sale and purchase agreement without complainant’s knowledge / Real Estate Agents Act 2008, s931f, s931ha, s1106 / HELD / Committee made error of law in describing threshold for referral as “more than mid-level” and approaching high level conduct / statutory threshold is “more than minor or technical breach” / Committee found mid-level unsatisfactory conduct, so threshold was met / Committee has no power to assess merits of compensation / complainant not required to establish case for compensation before Committee / “any substantive matter” in s1106b refers to Committee’s findings in determining unsatisfactory conduct that is more than minor or technical / findings on evidence and causation in relation to compensation not binding on Tribunal as they were outside Committee’s jurisdiction / appellant to file compensation claim

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

Applications to review Registrar’s determination and for leave to adduce new evidence / Registrar determined not to pursue complaint as it only disclosed inconsequential matter / Real Estate Agents Act 2008, s743a, s112, s136 / Professional Rules 2012, r6.4, r10.7 / Kacem v Bashir [2010] NZSC 112 / Wilson v Registrar of the Real Estate Agents Authority [2023] NZREADT 2 / HELD / fresh, credible and cogent test for new evidence appropriate for s112 reviews, but should only be applied in context of limited grounds of review in Kacem / applicant had plenty of opportunity to provide evidence to Registrar / evidence credible but not sufficiently cogent to prove Registrar’s decision was wrong / Registrar has discretion to decide if complaint has sufficient evidence or would justify disciplinary response / Registrar not required to conduct investigation / has considered all the evidence provided by parties / no error of fact or law / applications dismissed, Registrar’s decision confirmed

Application to lift non-publication orders and for permission to publish submissions and evidence / cross application for extension of non-publication orders / Tribunal made non-publication order prohibiting publication of purchaser, auctioneer and any third party’s name / appellant subsequently requested a revocation of that order / appellant also requested permission to publish submissions, evidence, witness statements, transcripts, recordings and correspondence / respondent cross-applied to extend non-publication order to cover all evidence and submissions / Real Estate Agents Act 2008, s108 / HELD / Tribunal expressly empowered to revoke existing non-publication order but not to modify it / once decision is published, request for further orders would involve recall of earlier decisions / no miscarriage of justice or other exceptional circumstance established / Tribunal functus officio in relation to publication / appellant and respondent’s requests declined

Liability and penalty / misconduct / licensee charged under s73a for kissing client without consent / Real Estate Agents Act 2008, s3, s73a, s108, s110, s110A / HELD / licensee pled guilty / first appearance before Tribunal / conduct was at high level of misconduct / fell squarely within the concept of disgraceful conduct / conduct was non-consensual and invasive of client’s personal autonomy / went significantly beyond that in Complaints Assessment Committee 1904 v Bright [2022] NZREADT 23 / caused significant impact on client / licensee wrote apology letters to client and Tribunal / acted dishonestly during Committee investigation by advancing false alibi, but subsequently accepted full responsibility / costs reduced due to financial position / permanent name suppression appropriate given clean record, importance of rehabilitation and potential significant impact of publication on licensee’s health / censured / ordered to pay $7,500 financial penalty / 20 per cent costs ($4,422.40)

Penalty / misconduct / licensee found guilty under s73a (disgraceful conduct) for producing false valuation report four times in respect of property he was seeking to acquire an interest in / Real Estate Agents Act 2008, s3, s73, s110, s110A / HELD / licensee forged report for own benefit to proceed with purchase, but no financial benefit gained / dishonesty at higher end of misconduct / honesty essential to achieving purpose of Act / clean record given little weight due to licensee’s short career / expressed remorse in email to Authority, but false reasons given for wrongdoing and lack of engagement with Tribunal show expression is not sincere / no apology or explanation / no confidence licensee learned from complaint / s1102e order necessary to protect public / five year prohibition period appropriate given the conduct was an isolated incident and there was no financial benefit / censured / prohibited from engagement for five years / 50 per cent costs ($14,496.44)

Costs application by licensee / Committee unsuccessful in pursuing misconduct charges / Real Estate Agents Act 2008, s110A / Complaints Assessment Committee 2106 v Mather [2021] NZREADT 54 / HELD / statutory factors justifying costs award not present / no rule that costs follow the event / requires something more than mere failure of prosecution or successful defence / prosecution’s evidence not inherently unreliable or so lacking in credibility that there was insufficient basis to proceed with charges / Committee pursued charges in response to Tribunal’s direction to consider doing so / no fault in Committee giving weight to Tribunal’s view / costs may have been awarded to Committee if successful, but no principle of reciprocity for costs / factor favouring costs for successful prosecution is performance of public regulatory duty, which does not favour successful licensees / long history of proceedings does not justify costs in licensee’s favour / application dismissed

Appeal / licensee failed to disclose prior burglaries and ownership of property in writing / Committee found unsatisfactory conduct / purchasers claim compensation for expenses incurred in securing property / licensee challenges costs award / Real Estate Agents Act 2008, s931f, s111, s136 / Professional Rules 2012, r6.4 / HELD / new compensation provisions of Act do not apply as conduct occurred prior to new provisions taking effect / Committee cannot award broad compensation under guise of relief from rectification / tortious measure of damages applicable, rather than expectation damages / purchasers’ claim for compensation failed due to lack of valuation evidence and as expense of securing property not causally connected to licensee’s conduct / costs challenge failed as licensee withdrew appeal against penalty, purchasers’ appeals of Committee’s liability and penalty decisions not hopeless, and no legal basis to stay costs award / appeal dismissed, Committee’s decision confirmed