Ministry of Justice

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 p…

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

Appeal / licensee advertised property as having “home automation” /  purchasers alleged that licensee had misrepresented that property featured a Control4 automation system / Committee took no further action / Real Estate Agents 2008, s111 / Professional Rules 2012, r6.4 / HELD / licensee provided base package material specifications which did not reference Control4 / purchasers made no queries about whether Control4 included and had obtained legal advice on sale and purchase agreement / purchaser had purchased base package with central hub wiring for smart home system / not proven that the licensee failed to accurately represent what was included in property’s home automation system / vendor’s evidence corroborated licensee’s evidence / appeal dismissed / Committee’s decision to take no further action confirmed

Appeal / licensee facilitated sale following relationship property division agreement / property owner alleged that licensee enabled unauthorised entry of valuer into property, accepted ex-husband’s instructions without agreement, and improperly changed duration of agency agreement / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r5.1, r6.1, r6.2, r6.4, r9.1 / HELD / no evidence of wrongdoing by licensee in allowing valuer to enter house / owner was informed prior to visit and did not object / owner did not inform licensee to deal only with her or correct understanding that ex-husband was fully active participant / however, licensee wrong to alter duration of signed agency contract without owner’s consent / breach of r5.1, r6.2 and r9.1 / licensee acted on another beneficial owner’s instructions and immediately took steps to rectify / threshold for disciplinary response not met / Committee’s decision confirmed / appeal dismissed

Appeal / complaint that licensee failed to disclose defective and non-consented work & misrepresented multi-offer situation / complaint licensee misled purchaser as to status of builder and existence of transferable guarantee / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r5.1, r6.2, r6.4, r10.7 / HELD / no evidence licensee withheld building report, was aware of defects or unauthorised building works, misled purchaser about multi-offer situation, or improperly responded to purchaser’s legal claims / extent of defects not evidence of licensee’s knowledge / licensee entitled to rely on council certification and engaged building professionals / finding that licensee made significant albeit innocent misrepresentation about builder’s status and building work having transferrable master builder guarantee / finding of unsatisfactory conduct warranted / Committee’s decision modified to reflect adverse findings / decision otherwise 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 does not dispute he failed to pay annual suspension fee but submits he did not receive reminder communications / Tribunal accepts Registrar followed correct process / licensees are responsible for updating their contact details / Registrar must cancel licence as required by s54h / no error of fact or law / application dismissed, Registrar’s decision confirmed

Appeal / complaint that licensees failed to fully disclose information relating to property’s weathertightness and defects / Committee found unsatisfactory conduct / Real Estate Agents Act 2008, s111, s 133 / Professional Rules 2012, r5.1, r9.3 / HELD / no breach of r9.3 / vendor’s evidence of knowledge of initial inspections incorrect / initial inspections’ recommendation to engage further expert not passed on, but immaterial as expert engaged per licensees’ advice / internal disclosures form updated and not passed on to vendors, but immaterial as vendors knew new information / breaches of r5.1 (and s133), but no disciplinary action warranted / expert not advised of initial findings, but identified same issues / offer presentation not signed in accordance with s133 but remedied quickly and purchaser was a licensee familiar with guide / Tribunal observed licensees in a team can be individually responsible for same failures / Committee’s decision reversed / appeal allowed