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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.
Penalty and compensation / unsatisfactory conduct / purchasers of residential property later discovered no legal vehicle access as driveway crossed a neighbouring property / licensees failed to identify and disclose access issue / Real Estate Agents 2008, s93, s110 / Professional Conduct and Client Care Rules 2012, r5.1 and r10.7 / HELD / wrongdoing at the upper end of low level or the lower end of medium level / no intention to deceive, though relatively high degree of carelessness / lack of legal vehicle access a relatively significant defect / red flag should have alerted licensees to potential issue / Tribunal reprimanded licensees and imposed fine of $2,500 each / purchasers’ losses of $5,920.43 casually connected to licensees’ wrongdoing / purchasers’ own failure to recognise potential issues against professional background and licensees’ lack of intention to deceive justified 40 per cent total reduction in compensation / licensees each ordered to pay $1,776.13 in compensation
Appeal / appellants alleged that second respondent licensee knowingly failed to disclose lack of CCC for original dwelling / Committee found licensee’s reliance on conveyancing solicitor’s advice as to effect of subsequent CCC obtained was reasonable, though failure to discuss cancelled sale and purchase agreement to colleague who later listed property was unsatisfactory conduct / alleged Committee erred in not referring complaint to Tribunal to consider misconduct / Real Estate Agents 2008, s89, s107, s107A, s111 / Professional Conduct and Client Care Rules 2012, r5.1, r6.2, r6.4 / HELD / no evidence to suggest second respondent did not honestly believe in conveyancing solicitor’s advice that entire dwelling had a CCC / Committee correct to find licensee actually relied on solicitor’s advice / reliance was reasonable in the circumstances, given phrasing of CCC in conjunction with advice received / no evidence of intention to conceal / Committee’s decision confirmed / appeal 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 / licensee used offensive language to describe complainant in text communications with complainant’s agent / Real Estate Agents Act 2008, s72, s73, s74, s112 / HELD / licensee’s comment was isolated communication / offensive language used relatively minor, falling short of threshold for unsatisfactory conduct or misconduct / 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 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 alleged licensee (also effectively acting as vendor) sold property without disclosing previous leak in building / further alleged vendor failed to disclose conflict of interest / Real Estate Agents Act 2008, s743a, s112, s136 / HELD / damage caused to property from burst pipe was repaired prior to sale / complainant, who had no connection to transaction, adduced no supporting evidence from purchaser / no evidence of material effect on property’s value following repairs / no defect to disclose / allegation of conflict of interest not supported by evidence / 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 / 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.
Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint alleged licensee who acted for mortgagee sold property in mortgagee sale significantly below market value, failing to conduct open homes or property marketing / complaint licensee did not provide notice of transaction to tenant prior to settlement / Real Estate Agents Act 2008, s743a, s112 / Professional Conduct and Care Rules 2012, r9.1 / HELD / significant discrepancy between valuation and alleged sale price not itself evidence of wrongdoing / no evidence to support allegation there was no open home nor proper marketing / licensee’s client was the mortgagee, not the mortgagor / licensee required to act in the best interests of mortgagee unless that would be contrary to law / no evidence from mortgagee supporting complaint / no credible evidence supporting wrongdoing / no error or 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
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 / 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 not to pursue complaint as it only disclosed inconsequential matters / complaint licensee misled purchaser as to compliance with Healthy Home standards / licensee allegedly failed to disclose known defects and provide relevant Healthy Home documentation / Real Estate Agents Act 2008, s72, s73, s743a, s112 / HELD / no evidence to support allegations of misrepresentation by the licensee / no evidence of licensee making statement concerning property’s compliance with Healthy Homes standards / licensee reviewed information provided by council and visited property prior to passing vendor disclosure document to applicant / report concluded property was in tidy condition with no apparent structural or moisture ingress concerns / no evidence licensee failed to provide all Healthy Homes documentation at time of transaction / no error or fact or law / application dismissed / Registrar’s decision confirmed
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
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 / 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 / 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
Appeal / commercial lessee later found description of leased area size in advertising and agreement was incorrect / Committee did not inquire into complaint as it was inconsequential / incorrect advertising deemed technical breach with no material impact / Real Estate Agents 2008, s41, s72, s73, s792b, s111 / Professional Rules 2012, r5.1, r6.4 / HELD / allegations relating to property management generally not “real estate agency work” / unsubstantiated complaints could not amount to misconduct / however, licensee’s actions concerning procurement of lease “real estate agency work” / employment status immaterial / acted for “another person” / Committee failed to consider whether capable of misleading lessee and whether conduct lacked skill, care and diligence / delayed formal complaint - overlooked earlier complaint directly to licensee / inappropriately considered unsuccessful civil claim / decision reversed / Committee directed to inquire into complaint about area of premises
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
Appeal / sale of residential property following breakdown of marriage / appellant alleged that respondent licensees knew about personal circumstances and colluded to effect sale and did not act in best interests by failing to discuss open market advertisement, that no CMA or appraisal was provided / Committee joined director of agency to proceedings per allegation of improper supervision / Real Estate Agents 2008, s89, s111 / Professional Conduct and Client Care Rules 2012, r6.1, r6.2, r.6.4, r9.1, r9.2, r9.16, r10.1, r10.2 / HELD / appellant’s suggestion he was never provided a copy of CMA unsupported by evidence / CMA arrived at using due care, skill, expertise and judgement with reference to comparable sales information / subsequent sale of property at significantly higher price did not indicate deficiency in CMA / no evidence of undue or unfair pressure / joined respondent was not designated supervisor / no error of fact or law / Committee’s decision affirmed / appeal dismissed
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
Compensation referral / unsatisfactory conduct / Committee found licensee misrepresented extent of utility connections and failed to disclose geotechnical report to complainant purchasers / 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 / broad and pragmatic approach taken to determine causal connection between losses claimed and contravening conduct / not open for Tribunal to review finding of unsatisfactory conduct in lieu of appeal to challenge determination / agency’s commission, vendor’s legal costs, complainants’ legal costs and LIM report fees attributable losses to unsatisfactory conduct / claim for loss of growth in property market unsubstantiated / compensation sum to achieve justice to parties / licensee acted in good faith though carelessly / licensees ordered to pay $34,437.38
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
Appeal / licensee sent pre-signed agency agreement for a sale to mentally unwell tenant of property, expecting it to be passed to co-owners / Real Estate Agents Act 2008, s4, s50, s111 / Professional Conduct and Client Care Rules 2012, r5.1, r8.3, r9.9, r10.2, r10.6 / HELD / Committee erred in finding no “real estate work” / licensee sent agency agreement and undertook multiple steps for the purpose of bringing about a sale, seeking involvement of co-owners, through tenant / “other person” taken to be either tenant or co-owners, thus “real estate work” / licensee sent pre-signed agency agreement and appraisal to tenant without undertaking pre-contractual required work / however, dealings ended early in pre-listing process and occurred in context of persistence by unwell tenant / threshold for disciplinary response not met / similarly, disciplinary response not justified for manager’s lack of supervision / use of pre-signed agreements and appraisals cautioned against / appeal dismissed
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
Application to strike out compensation referral proceedings / Committee found licensee engaged in unsatisfactory conduct in failing to bring complainant’s attention to altered clause, as well as in failing to disclose in writing that he may financially benefit from transaction and to obtain signed acknowledgement / licensee applied to strike out proceedings as parallel civil proceedings had been decided by District Court / Real Estate Agents Act 2008, s109A, s110, s136 / Professional Rules 2012, r5.1, r6.2, r6.3 / HELD / Tribunal noted distinction between legal rights in parallel civil District Court proceedings and present disciplinary proceedings / claim before Tribunal whether complainant should be awarded for any loss suffered by reason of the licensee’s unsatisfactory conduct, rather than breach of contract / nature and extent of claimed losses unclear / relevance of res judicata and issue estoppel to considered in due course / strike-out application dismissed