Ministry of Justice

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / applicant vendor alleged licensee failed to disclose conflict of independent dealings with purchaser, failed to adequately market property and settle transaction, and pressured vendor to sell by disclosing purchaser’s personal circumstances / Real Estate Agents Act 2008, s74, s112 / Professional Conduct and Client Care Rules 2012, r6.1, r6.3, r6.4, r9.1, r9.2, r9.3, r9.4, r 9.14, r9.16 / HELD / no evidence of improper conflict management / licensee had advised applicant of interest in engaging with purchasers prior to ASP / subsequent dealings were independent / no evidence to support allegation of undue pressure / no evidence of breach of professional obligations in respect of sales price achieved / no evidence of substandard marketing or settlement papers / application dismissed / Registrar’s decision to take no further action confirmed

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)