Ministry of Justice

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

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint tender process was unfair and not transparent to complainant & that licensees misled vendor to advantage offer from listing agent’s client / Real Estate Agents Act 2008, s743a, s107A, s112 / HELD / no obligation to disclose (without vendor’s instructions) vendor would not accept, and had previously rejected, vendor finance condition / was vendor’s decision to bring forward tender deadline / no evidence licensees brought forward deadline themselves or acted contrary to vendor’s interests / no evidence vendors not aware of complainant’s interest in property / vendors not obliged to give complainant more time to improve offer / licensees not required to disclose information about previous offers (unless instructed by vendors) / licensees kept complainant informed to extent necessary / application dismissed / Registrar’s decision confirmed 

Costs / first compensation referral decision / Tribunal awarded compensation to complainant in the sum of $35,101.65 / parties invited to file submissions on costs / Real Estate Agents Act 2008, s931ha, s1104, s1105, s1106, s110A / HELD / Tribunal’s approach to costs awards differs from civil court proceedings / under s110A, Tribunal to consider whether and to extent any party has participated in good faith, facilitated or obstructed information gathering, and facilitated the resolution of issues / approach to compensation referral prioritises access to justice and would not wish to deter complainants from seeking compensation due to potential costs exposure / no adverse factors indicating costs should be awarded in favour of either party / licensees generally cooperative throughout / costs to lie where they fall

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 / applicant’s misunderstanding as to second annual fee payment caused by erroneous assumption / 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

Compensation referral / Committee found licensee one failed to ensure property was sold as a going concern and include vendor’s GST registration in sale and purchase agreement (ASP) and licensee two failed to supervise / Real Estate Agents Act 2008, s110, s1105 / Professional Rules 2012, r5.1, r5.2, r8.3, r8.4, r9.8, r9.9 / KD v Donaldson [2023] NZREADT 12 / HELD / first compensation referral decision / Tribunal may have regard to principles from its compensation jurisdiction under s1102g / must apply, and must not overturn, Committee’s determination of any substantive matter in the case / no jurisdiction to award interest under Interest on Money Claims Act 2016 / satisfied loss caused by licensee’s unsatisfactory conduct / commission repayment by licensee should be taken into account as it offset vendor’s losses / 15 per cent reduction for vendor’s failure to mitigate loss by signing ASP  and not seeking legal advice / licensees ordered to pay $35,1011.65

Interlocutory application for full disclosure of confidential information / unsuccessful tenderer alleged licensees’ tender process was not transparent, did not reasonably explain shift in tender date, had unreasonable time constraints, and lacked proper communication with tenderer’s agent / Registrar relied on information not fully disclosed to complainant in determining not to pursue complaint, concluding it disclosed inconsequential matters / Real Estate Agents Act 2008, s743a, s105, s109, s112 / HELD / Tribunal considered unredacted documents to determine appropriateness of disclosure / failure to disclosure “secret” information prima facie breach of natural justice / however, complainant was provided sufficient description of documents to answer licensees’ defence / redactions appropriate in light of privacy interests / Registrar should have advised complainant its possession of confidential information but failure to do so not error of law / redacted information of insufficient probative value to warrant breaching its confidentiality by disclosure / interlocutory application declined / substantive decision to follow

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / Real Estate Agents Act 2008, s74, s107A, s112 / Professional Conduct and Client Care Rules 2012, r5.1 and r6.4 / HELD / purchaser alleged licensee enticed consideration of property with lower price than in fact sought / Registrar overlooked licensee’s admission as to communicated price expectation / nonetheless, Registrar’s conclusion that licensee did not give incorrect or misleading advice justified / purchaser not misled as to price at critical time of making offer / purchaser also disputed licensee’s statements regarding leak / licensee assured purchaser that leak was historic / Registrar failed to consider evidence of licensee’s knowledge of ongoing leak and failure to disclose until after settlement / purchaser further alleged licensee unduly pressured her into purchase / frequency of phone communications reasonable / Registrar correct to find no evidence of undue pressure / application upheld / Registrar directed to reconsider leak allegation and any other matters at its discretion

Appeal / licensee conducted two visits to complainant tenant’s property / complainant alleged that licensee failed to attend one arranged outside-only viewing and later forcibly entered property without consent / Registrar took no further action / Real Estate Agents 2008, s743a and s111 / Professional Rules 2012 / HELD / evidence supported conclusion that second visit had been agreed upon and was not rescheduling of missed appointment / in any event, a licensee’s forgetfulness resulting in a missed appointment could not justify disciplinary response / no evidence that licensee misled complainant as to scope of two arrangements / only independent evidence supported licensee’s assertion of consented entry / appeal dismissed / Registrar’s decision to take no further action confirmed

Appeal / licensees advertised cottage as having electricity connection linked to main house / following settlement, purchasers were required to pay for installation of separate connection / Committee found licensees’ misrepresentation, albeit made innocently, amounted to unsatisfactory conduct / Real Estate Agents 2008, s111 / Professional Rules 2012, r5.4 and r6.4 / Tribunal directed licensees to apply for leave to produce fresh evidence / fresh evidence not considered in absence of such application / in any event, licensees’ submissions supported Committee’s determination that licensees had misrepresented there was a separate electricity connection / appeal dismissed / Committee’s finding of unsatisfactory conduct confirmed

Appeal / licensee provided purchaser with key to property prior to settlement without vendor’s permission / Committee found licensee guilty of unsatisfactory conduct / Committee ordered censure, $1,500 fine and refund of commission to sum of $3,000 / licensee appealed against penalty / Real Estates Agents Act 2008, s3, s4, s892b, s93 and s111 / Professional Rules 2012, r5.1, r9.1 and r9.5 / Tribunal admitted licensee’s fresh evidence of commission statement / evidence relevant, cogent and credible / Committee did not refer to any evidential foundation when fixing sum of compensatory order at $3,000 / interests of natural justice supported admission of evidence / commission refund should identify and relate to particular aspect of work relating to disciplinary findings / unsatisfactory conduct did not pertain to entire range of work provided / Committee’s refund sum excessive / $1,500 refund and $1,500 fine appropriate / Committee’s decision modified / appeal partially upheld

Appeal / complaint licensee and agency mismanaged conflict of interest and agency failed to appropriately supervise licensee / licensee’s family member purchased property / Committee found licensee and agency guilty of unsatisfactory conduct for failure to follow s134 / fined agency $9,000 and published its name / vendor appealed against penalty / Real Estates Agents Act 2008, s3, s4, s72, s73, s93, s111, s134, s136 / Professional Rules 2012, r6.4 / HELD / Tribunal clarified Committee’s liability findings / found Committee erred in failing to consider refund under s134 / complainants in disciplinary proceedings need not commence civil proceedings to recover under s134 / nexus required between subject of upheld complaint and refund / s134 does not require licensee to act under agency agreement nor any loss to vendor / refund punitive, not compensatory / licensee and agency ordered to refund commission shares / Committee’s decision modified / appeal partially upheld   

Liability and penalty / real estate agency pleaded guilty to amended charge of unsatisfactory conduct for non-compliance with Audit Regulations over one year period / failure to appoint auditor, notify Authority of trust account transactions, provide monthly balances, and prepare statement or statutory declaration / Real Estate Agents Act 2008, s72, s110 / Real Estate Agents (Audit) Regulations 2009, reg9, reg15, reg16 / HELD / Tribunal emphasised importance of trust account compliance for public protection / amount of monies transferred in and out of trust account were at times significant / accepted that breaches occurred inadvertently due to miscommunication and change in auditors / agency admitted liability and cooperated with Authority / no prior disciplinary history / company implemented changes to ensure future compliance / low to mid-level penalty appropriate / Tribunal ordered censure, required company officer to undergo training and imposed $5,000 fine

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 / did not complete CPD by deadline / Registrar correctly followed statutory process / Registrar must cancel licence as required by s54d / Registrar has no discretion to consider health or financial circumstances / no application for deferral or exemption made / licensees are responsible for ensuring they receive correspondence from Registrar / no error of fact or law / application dismissed / Registrar’s decision confirmed