Ministry of Justice

Applications to adduce new evidence & for an oral hearing / alleged misrepresentation about difficulty obtaining council consent / Real Estate Agents Act 2008, s 105, s 107, s 107A, s 111 / Nottingham v Real Estate Agents Authority [2017] NZCA 1 / Eichelbaum v Real Estate Agents Authority (CAC 303) [2016] NZREADT 3 / Complaints Committee No.1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC) / HELD / admissibility / purchaser’s son’s statement and relevant email admitted by consent / purchaser’s wife’s evidence is hearsay & not cogent, cannot be adduced / licensee’s Deal Transaction Report could have been provided to Committee & not cogent, cannot be adduced / licensee’s wife’s evidence about who was at meeting is relevant & cogent; but hearsay or unimportant evidence inadmissible / oral hearing / critical factual issue turns on credibility of witnesses / interests of justice require oral hearing to give evidence and be cross-examined / applications partially granted

Appeal / complaint licensee did not disclose suicide at property / Committee took no further action / Real Estate Agents Act 2008, s 111 / Professional Rules 2012, r 6.4 / HELD / purchasers contend licensee advised them of a sudden death at the property, but did not specify it was a suicide / no other evidence provided by purchasers / licensee and manager provided considerable supporting evidence as to disclosure of suicide / disclosure of suicide is confirmed in listing agreement / other prospective purchasers confirm the suicide was disclosed / other licensees at agency confirm disclosure requirements were clearly communicated by manager at team meetings / implausible that licensee disclosed suicide to other prospective purchasers but not the purchasers / appeal dismissed

Application to be heard / licensees request to be heard on a review of Registrar’s determination that complaint discloses only an inconsequential matter and need not be pursued / Real Estate Agents Act 2008, s 74, s 105, s 106, s 112 / Real Estate Agents (Complaints and Discipline) Regulations 2009, regs 9, 10 / HELD / deliberate distinction in s 106 to exclude reviews from rights of appearance / reg 9 provides copy of review application must only be given to the Registrar, contrasted with reg 10 for appeals which must be given to licensees / hearing from licensees at this stage risks raising merits of complaint / licensees fully protected by subsequent complaints process / Tribunal observes that it would be reluctant to grant leave to allow new evidence on a review of a s 74(3) determination / application dismissed

Appeal / complaint licensees fraudulently advertised property / claim that destocking date in sale and purchase agreement did not reflect the lease, despite licensees advising it would / also, licensees failed to disclose that water tanks on property belonged to lessee and were not connected to district scheme, as set out in supplied property reports / Committee took no further action / Real Estate Agents Act 2008, s 111 / Professional Rules 2012, rr 6.4 / HELD / no breach of r 6.4 / appellant knew licensees did not have a copy of the lease / licensees made proper enquiries to check consistency / on the facts, destocking date in agreement consistent with lease / appellant raised no relevant query about water tanks, nothing to alert licensees about ownership issue / property reports warned information was supplied by vendors / obligation under r 6.4 is not a substitute for purchaser due diligence / Committee’s decision confirmed 

Appeal / licensee incorrectly represented rental income from cottage and loft as legal / failed to recognise cottage not residentially consented; did advise loft not consented / did not draw warranties to vendors’ attention / showed property without agency agreement / Real Estate Agents Act 2008, s 111 / Professional Rules 2012, rr 5.1, 6.4, 9.6 / unsatisfactory conduct for breach of rr 5.1 (vendor warranties), 6.4 (cottage consent, cottage & loft income) / no penalty for minor breach of r 9.6 (agency agreement), no prejudice / instructed not to disclose suicide on property / licensee appropriately disclosed significant event occurred / no evidence appellant could cancel agreement after sale confirmed as unconditional / Committee has no power to order compensation when conduct occurred / $3,500 fine confirmed / censure confirmed / appeal dismissed

Costs application by licensee / Committee withdrew charges against licensee close to substantive hearing / Real Estate Agents Act 2008, s 110A / survey of applicable principles for costs in READT / tribunals have broader costs discretion than courts / no rule that costs follow the event, but may be appropriate in some cases / requires something more than success / relevant that Committee is exercising a public function / licensee’s defence was that it is normal practice for agents to take client lists when leaving an agency, despite contractual obligations / expert evidence supported this defence / Committee lacked diligence in investigating defence before tribunal processes invoked and charges laid / appropriate case for costs to follow the event / quantum is a contribution towards reasonable actual costs / parties accept High Court costs scale is useful to assess reasonable costs / costs of $14,340 awarded to licensee  DP

Appeal under s 111 of the Real Estate Agents Act 2008. Breach of r 10.6 of the Rules by failing to explain the end date of the extended agency agreement; breach of r 9.7 of the Rules by failing to recommend legal advice; breach of s 132 of the Act by failing to provide a copy of the amendment agreement.

False and misleading information / website listing categorised part rural zoned property as residential / whether complainant was misled at the time contract went unconditional / Real Estate Agents Act 2008, s 73, s 111 / Professional Rules 2012, r 6.4, r 8.3 / new evidence on appeal / partial extract of valuation report unable to be relied on / r 6.4 does not require an intention to mislead / advertisement contained false and misleading information, reader entitled to take information at face value / unlikely complainant did not know of true zoning /  information present on sale contract and certificate of title / advised to undertake due diligence / determination confirmed.

Application for review of Registrar's determination under s 112 of the Real Estate Agents Act 2008. Application for award of costs against Registrar in respect of hearing in the Tribunal. Outcome: Registrar to pay $15,000 as contribution towards costs.

Application for review of a Registrar's decision under s 112 of the Real Estate Agents Act 2008. Ruling of the Tribunal on the Tribunal's jurisdiction to consider application for review. Outcome: right of review under s 112 is not restricted to Registrar's licensing decision, Tribunal has jurisdiction to hear and determine application.

Charge laid under s 91 of the Real Estate Agents Act 2008. Defendant found guilty of misconduct under s 73(a) of the Act. Censured, licence suspended for 18 months and ordered to pay a fine of $5,000.

An appeal under section 111 of the Real Estate Agents Act 2008. Penalty decision. Outcome: financial penalties reduced.

Charge laid under s 91 of the Real Estate Agents Act 2008. Penalty decision. Found guilty of misconduct under s 73(c)(i) of the Act. Defendant wilfully or recklessly failed to comply with a Notice issued under s 85 of the Act. Censured and ordered to pay a fine of $5,000. Ordered to pay $1,400 to the Authority as contribution towards the Committee's costs.