Ministry of Justice

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

Application to review Registrar’s determination / Registrar declined licensee’s application to defer completion of required continuing education / Real Estate Agents Act 2008, s54, s55, s112 / Real Estate Agents (Continuing Professional Development Rules) Notice 2018 / HELD / licensee failed to comply with CPD obligations / Registrar correctly followed statutory process in sending required communications to licensee / required communications were received by licensee / licensee’s application for deferral to Registrar made no reference to new information submitted before Tribunal / Registrar made no error of fact or law in its decision to decline licensee’s application for deferral / licensee unable to show that exceptional circumstances prevented her from completing required CPD / application dismissed, Registrar’s decision confirmed

Appeal / licensee misrepresented number of bedrooms in property / Committee found unsatisfactory conduct / complainant brought appeal out of time / Real Estate Agents Act 2008, s111 / Catley v Real Estate Agents Authority [2019] NZREADT 57 / Beckett v Real Estate Agents Authority [2019] NZREADT 58 / HELD / complainant sought discussion with lawyer about possible claim in Disputes Tribunal / did not seek advice about appeal to this Tribunal / appeal filed 15 working days late / not a short delay / complainant informed of appeal rights in Committee’s decisions / research about appeal rights could have been done earlier / could have contacted Authority or Tribunal about appeal rights / high threshold for acceptance of late appeal not met / no exceptional circumstances / appeal not accepted

Penalty / unsatisfactory conduct / licensee found guilty under s72a (conduct falling short of expected standard) for miscommunication leaving prospective purchaser to understand he was asked to lie about reason for withdrawing offer / Real Estate Agents Act 2008, s3, s72, s110, s110A / HELD / low level of unsatisfactory conduct / licensee’s communication was garbled / no deceit involved / licensee cannot rely on clean record due to prior finding of unsatisfactory conduct / costs principles in TSM applicable to unsatisfactory conduct cases / orthodox position of 50 per cent costs can be displaced particularly where Committee failed on all charges and unsatisfactory conduct was not advanced by Committee but found by Tribunal / licensee admitted underlying facts early in case and admitted unsatisfactory conduct prior to hearing / no factors in s110A indicate costs should be awarded against licensee / censured / ordered to pay $2,000 financial penalty / no costs order made

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 / licensee did not file submissions / not disputed that licensee was required to complete CPD by certain date, received required communications from Registrar, and 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

Liability / misconduct / licensee found guilty of unsatisfactory conduct for giving false answer to question about safety of property and area / whether misconduct charges should be brought referred back to Committee / now charged under s73a or s73b / Real Estate Agents Act 2008, s4, s72, s73 / Professional Rules 2012, r6.4 / HELD / vendor licensee arranging and meeting purchasers on site meets definition of real estate agency work as property was marketed by licensee’s agency / carried out work normally performed by agent and not vendor / vendor conducting services on own behalf complies with definition / licensee asked if property and area was good, not if it was safe / purchasers’ evidence not credible / licensee not deliberately untruthful as previous burglaries not at top of her mind in answering question if area was good / negligently withheld information which should have been provided but was not disgraceful or seriously incompetent or negligent / charges dismissed

Liability / misconduct / licensee charged under s73a or s73ciii for requesting prospective purchaser to lie about reason for withdrawing offer / Real Estate Agents Act 2008, s72, s73, s91, s105, s109, s110 / Professional Rules 2012, r6.3 / HELD / purchaser’s affidavit inconsistent with oral evidence that it was his “impression” the licensee asked him to change withdrawal reason, thus did not establish on balance of probabilities that licensee made the request / Tribunal accepted licensee’s evidence that his message was to point out effect of withdrawal to vendors / misconduct charges require stronger evidence / licensee’s intention for message cannot be proven / licensee’s message consistent with request for purchaser to get second opinion due to discrepancy in repair cost estimates by vendors and building inspector / however, licensee found guilty of unsatisfactory conduct under s72a as purchaser was left with the impression to change withdrawal reason / penalty decision to follow

Compensation referral / ruling on jurisdiction / Committee found licensee guilty of unsatisfactory conduct for failing to disclose reports on damage to property and potential risks / Committee referred compensation to Tribunal under s931ha / Real Estate Agents Act 2008, s12, s72, s89, s93, s106, s110, s111 / Professional Rules 2012, r6.4, r10.7 / HELD / amicus curiae not required to determine Authority’s role or for proceeding to be just / Committee and Authority are not parties to referral / Authority can assist on issues of jurisdiction, powers and procedures, and interpretation of the Act including proper measure of loss, but should be neutral / preliminary view on compensation referral jurisdiction / confined to loss arising from unsatisfactory conduct as found by Committee, but complainant may reformulate compensation claims / must show a Court could order compensation or damages in accordance with law / full, formal procedures for civil claims not appropriate

Penalty / misconduct / former licensee found guilty under s73a (disgraceful conduct) for failing to account for $92,210 of bond money relating to 49 residential tenancies paid to his property management company to be transferred to Tenancy Services / instead, bond money was retained for use by his businesses / Real Estate Agents Act 2008, s3, s73a, s93, s110, s110A / HELD / theft of over $92,000 is at high end of misconduct and undermines purpose of the Act which is to protect the interests of consumers / consumers are entitled to expect licensees to act with honesty and integrity / licensee provided no evidence of financial circumstances / first appearance before Tribunal, but wrongdoing was not an isolated incident / admitted misconduct and apologised, but only at the last moment at the hearing / if licensee still retained a licence it would have been cancelled / censured / ordered to pay $15,000 financial penalty / 50 per cent costs ($17,477.75)

Appeal / complaint licensee made a misleading representation about it being easy to obtain council consent to substantially move building platform position on title plan / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r5.1, r6.4 / HELD / breach of r5.1 & r6.4 / Tribunal accepts licensee made the representation & that it was capable of affecting the purchaser’s decision / not necessary to prove reliance to breach Rules / representation made in good faith, as minor adjustments had been approved for other building platforms / breach does not meet threshold for disciplinary response / purchaser has been a real estate agent for decades / rejected due diligence clause offered / was aware consent would be required / vendor advised platform could not be moved / not reasonable to rely on representation / Committee’s decision confirmed

Application for leave to adduce new evidence / Real Estate Agents Act 2008, s105, s111 / appeals reconsider evidence and material provided to the Committee / admissibility / new evidence must be credible, not able with reasonable diligence to have been provided to the Committee, cogent & would have an important influence on the outcome / overriding consideration is the interests of justice / relevant whether admitting new evidence would require further evidence or cross-examination / not an opportunity to conduct case differently / HELD / complaints process provided multiple opportunities to produce evidence / all new evidence could have been provided to Committee with reasonable diligence / recordings of post-conduct conversations do not contain concessions as to liability & would not have important impact / generic information leaflet not material / better evidence available about auction conduct than letter from witness & would have no impact / application declined

Application for review / Registrar’s determination not to pursue a complaint as it only disclosed inconsequential matter / applicant applied to review Registrar’s decision alleging Registrar had erred / Real Estate Agents Act 2008, s 74(3)(a), s 112 / Kacem v Bashir [2010] NZSC 112 / Lawrence v Registrar of the Real Estate Authority [2022] NZREADT 6 / Vosper v Real Estate Agents Authority [2017] NZHC 453 / BL v SFK [2013] NZIACDT 57 / HELD / Registrar’s decision has no error of law or principle, irrelevant considerations, failure to take into account relevant considerations, and is not plainly wrong / licensee had no duty to inform prospective purchaser of an offer by another prospective purchaser if not instructed by vendor to do so / no evidence that information about vendor’s medical appointments was false / licensee’s written communications do not portray any antagonism / application dismissed