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Application to review Registrar’s determination / Registrar cancelled licence as licensee failed to pay annual fee for keeping licence suspended / HELD / licensee notified that application would be dismissed if submissions not filed / licensee did not file submissions / no error by Registrar in cancelling licence / application dismissed, Registrar’s decision confirmed
Appeal / agency released deposits before condition in sale and purchase agreement was satisfied and without express consent of purchaser’s solicitor / Committee took no further action / Real Estate Agents Act 2008, s111 / HELD / agency entitled to release deposits if every condition was fulfilled or waived / two conditions in agreement not satisfied before deposit released / non-fulfilment of conditions waived by purchaser’s solicitor signing forms confirming satisfaction or waiver of conditions / waivers permitted agency to release deposits / purchaser’s solicitor did not give express consent to release deposits, but no evidence he expressly declined consent or told agency not to release them / agency entitled to view signed forms and silence on deposits as authority to release them / appeal dismissed / Committee’s decision confirmed
Appeal / licensee allegedly made false statement to purchaser there were problems with body corporate resulting in loss of conditional offer / did not promptly remove web advertisements after sale of two properties went unconditional / Committee took no further action / Real Estate Agents Act 2008, s111 / HELD / alleged conversation not proven on balance of probabilities given purchaser and licensee denied it took place / any such conversation did not constitute real estate agency work / licensee was not engaged in the vendor’s transaction or in any other transaction / was not doing work on behalf of another person or for the purpose of any transaction involving licensee or buyer / no evidence statement was false / conversation could not amount to unsatisfactory conduct or misconduct / discussion with vendor also not real estate agency work / extended web advertisement did not affect vendor / was promptly removed / appeal dismissed / Committee’s decision confirmed
Liability and penalty / misconduct / agency charged under s73b for errors in trust account transactions, non-compliance with audit regulations and failing to provide timely reconciliations over three financial years / Real Estate Agents Act 2008, s3, s73b, s110, s122 / Audit Regulations 2009, reg7, reg14, reg15, reg16, reg17 / Complaints Assessment Committee 520 v AJS Rental Realty Ltd [2020] NZREADT 20 / HELD / agency admitted charge / compliance with audit regulations is mandatory and breaches are taken seriously / length, extent and seriousness of agency’s non-compliance puts conduct at higher end of misconduct under s73b / period of time over which agency’s offending took place was concerning, particularly given compliance advice received by the Authority in late 2020 / credit given for admitting liability, cooperation with Authority and difficulties arising from COVID-19 pandemic / agency censured / ordered to pay $15,000 financial penalty
Appeal / licensee failed to inform purchaser that property’s spa pool was not compliant and of risk of asbestos in ceiling / Committee found unsatisfactory conduct in relation to spa pool / took no further action in relation to asbestos issue / purchaser appealed against decision to not refer compensation and take no further action / Real Estate Agents Act 2009, s931f, s931ha, s111 / Professional Rules 2012, r5.1, r6.2, r6.4, r10.7 / HELD / conduct in relation to spa pool not minor or technical / Committee should have referred compensation, but Tribunal would not have awarded it as failure to pass on council’s information not the operative or real cause of purchaser’s loss / licensee gave written warning spa area was unconsented / purchaser should have asked what warning meant / presence of asbestos in textured ceiling only a possibility and not likely or significant potential risk / no defect requiring disclosure / no breach of Rules / appeal dismissed / Committee’s decision confirmed
Appeal / licensee failed to inform purchasers that property’s cladding had risk of weathertightness issues and obtaining finance would be difficult / whether licensee ought to have put clause in purchase agreement as to how cladding could affect finance / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r6.4, r10.7 / HELD / licensee not required to give financing advice / licensee only obliged to refrain from withholding information that in fairness should be provided and to disclose known defects / licensee verbally informed co-purchaser at a viewing of the cladding and advised him to obtain building report / purchaser initialled acknowledgement in disclosure form prior to auction that property had cladding which risked weathertightness issues and expert advice should be obtained / purchaser incorrectly assumed acknowledgement was irrelevant / purchasers failed to undertake due diligence / appeal dismissed / Committee’s decision confirmed
Appeal / ruling on whether Committee correct not to refer compensation / Committee found licensee guilty of unsatisfactory conduct for completing GST schedules in sale and purchase agreement without complainant’s knowledge / Real Estate Agents Act 2008, s931f, s931ha, s1106 / HELD / Committee made error of law in describing threshold for referral as “more than mid-level” and approaching high level conduct / statutory threshold is “more than minor or technical breach” / Committee found mid-level unsatisfactory conduct, so threshold was met / Committee has no power to assess merits of compensation / complainant not required to establish case for compensation before Committee / “any substantive matter” in s1106b refers to Committee’s findings in determining unsatisfactory conduct that is more than minor or technical / findings on evidence and causation in relation to compensation not binding on Tribunal as they were outside Committee’s jurisdiction / appellant to file compensation claim
Application to review Registrar’s determination / Registrar determined not to pursue complaint as it only disclosed inconsequential matter / parties filed joint memorandum noting complainant intended to file fresh complaint addressing additional issues and inviting Tribunal to reverse Registrar’s decision by consent, so Registrar may refer matter to Committee / Real Estate Agents Act 2008, s743a / HELD / application granted, Registrar’s decision reversed
Application to review Registrar’s determination / Registrar determined not to pursue complaint as it only disclosed inconsequential matter / parties filed joint memorandum inviting Tribunal to reverse Registrar’s decision by consent, so Registrar may refer matter to Committee / Real Estate Agents Act 2008, s743a / HELD / application granted, Registrar’s decision reversed
Penalty / misconduct / licensee found guilty under s73ciii (wilful breach of Rules) for acting in transaction without direct contact with client, and personally inserting client’s signature and initial on documents without authorisation / Real Estate Agents Act 2008, s3, s73, s110, s110A / Professional Rules 2012, r5.1, r6.3, r9.6, r9.7, r12.2, r12.3 / HELD / licensee sought to cover up wrongdoing when confronted by employer / did not engage with Tribunal until after liability decision issued / explanations not accepted / offending a serious example of misconduct / obligation to deal directly with client or someone with power of attorney is fundamental / conduct wilful and spanned entire transaction / no confidence licensee learned from wrongdoing or can be rehabilitated / credited for clean record, late apology, admitting facts at early stage and no party suffering financial loss / financial hardship not established / censured / licence cancelled / 50 per cent costs ($8,520)
Applications to review Registrar’s determination and for leave to adduce new evidence / Registrar determined not to pursue complaint as it only disclosed inconsequential matter / Real Estate Agents Act 2008, s743a, s112, s136 / Professional Rules 2012, r6.4, r10.7 / Kacem v Bashir [2010] NZSC 112 / Wilson v Registrar of the Real Estate Agents Authority [2023] NZREADT 2 / HELD / fresh, credible and cogent test for new evidence appropriate for s112 reviews, but should only be applied in context of limited grounds of review in Kacem / applicant had plenty of opportunity to provide evidence to Registrar / evidence credible but not sufficiently cogent to prove Registrar’s decision was wrong / Registrar has discretion to decide if complaint has sufficient evidence or would justify disciplinary response / Registrar not required to conduct investigation / has considered all the evidence provided by parties / no error of fact or law / applications dismissed, Registrar’s decision confirmed
Liability / misconduct / licensee charged under s73ciii for acting in transaction without having any direct contact with client, and inserting client’s signature and initials on contractual documents without authority / Real Estate Agents Act 2008, s73, s126 / Professional Rules 2012, r5.1, r6.3, r9.6, r9.7, r12.2, r 12.3 / HELD / licensee did not attend hearing & admissions made prove charges / instructions were given by vendor’s daughter or assistant without proper authority from owner / breach of r9.6 as agency agreement invalid / breach of r9.7, r12.2 & r12.3 / licensee inserted signatures and had no contact with client / breach of r5.1 / obligation to communicate directly with client is fundamental to real estate work / breach of r6.3 / licensee’s conduct was wilful / attempted to conceal wrongdoing and lied to supervisor / charge upheld / penalty decision to follow
Application to lift non-publication orders and for permission to publish submissions and evidence / cross application for extension of non-publication orders / Tribunal made non-publication order prohibiting publication of purchaser, auctioneer and any third party’s name / appellant subsequently requested a revocation of that order / appellant also requested permission to publish submissions, evidence, witness statements, transcripts, recordings and correspondence / respondent cross-applied to extend non-publication order to cover all evidence and submissions / Real Estate Agents Act 2008, s108 / HELD / Tribunal expressly empowered to revoke existing non-publication order but not to modify it / once decision is published, request for further orders would involve recall of earlier decisions / no miscarriage of justice or other exceptional circumstance established / Tribunal functus officio in relation to publication / appellant and respondent’s requests declined
Appeal / licensee advertised property as legal home and income when minor dwelling was not legally consented as dwelling / Committee found unsatisfactory conduct / licensee appealed against publication order / sought to admit fresh evidence / Real Estate Agents Act 2008, s64aiv, s661fv, s84, s108, s111 / HELD / admitting fresh evidence concerning licensee’s health is in interests of justice / starting point on publication is open justice / gravity of wrongdoing is relevant / licensee was found guilty of unsatisfactory conduct, which is less serious than misconduct, and did not involve dishonesty / public does not need protecting from licensee / publication would likely seriously jeopardise her wellbeing / privacy of licensee trumps public interest in knowing wrongdoing of licensees / licensee and agency granted name suppression / appeal allowed
Penalty / unsatisfactory conduct / licensee found guilty under s72a (conduct falling short of expected standard) and s72b (conduct contravening Act or Rules) for misrepresenting to purchaser commercial property’s rental income / Real Estate Agents Act 2008, s931ha, s1102g, s1104, 110A / Professional Rules 2012, r5.1, r6.4 / HELD / first appearance before Tribunal / misrepresentation innocent but had no strong foundation / conduct low-medium in seriousness / not minor or technical breach as it concerned important matter for purchaser / licensee cooperated but no apology / Committee should have referred compensation / Tribunal can self-refer compensation if unsatisfactory conduct found on appeal / is consistent with consumer protection focus of Act / no compensation or relief awarded as no causal connection between purchaser’s expenses and losses and licensee’s misrepresentation / self-represented purchaser not entitled to costs / censured / ordered to pay $1,500 financial penalty
Penalty / misconduct / licensee found guilty under s73a (disgraceful conduct) for producing false valuation report four times in respect of property he was seeking to acquire an interest in / Real Estate Agents Act 2008, s3, s73, s110, s110A / HELD / licensee forged report for own benefit to proceed with purchase, but no financial benefit gained / dishonesty at higher end of misconduct / honesty essential to achieving purpose of Act / clean record given little weight due to licensee’s short career / expressed remorse in email to Authority, but false reasons given for wrongdoing and lack of engagement with Tribunal show expression is not sincere / no apology or explanation / no confidence licensee learned from complaint / s1102e order necessary to protect public / five year prohibition period appropriate given the conduct was an isolated incident and there was no financial benefit / censured / prohibited from engagement for five years / 50 per cent costs ($14,496.44)
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 did not file submissions / not disputed that licensee was required to pay suspension fee by certain date, received required communications from Registrar, and did not make payment by deadline / 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
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 / agency contract showed commission estimate included GST / agency charged additional GST on commission in invoice / Committee found unsatisfactory conduct in relation to agency and took no further action in relation to two licensees / Real Estate Agents Act 2008, s111, s126 / Professional Rules 2012, r5.1 / HELD / Committee correct to inquire into agency’s conduct / handwritten note on agency contract saying commission “Inc of GST” made by licensees / licensees knew and intended commission to be GST inclusive / Committee did not treat agency and licensees contradictorily / basis for agency’s unsatisfactory conduct was that the agency itself invoiced the GST to the vendors / agency lacked skill and care in issuing invoice when it knew licensees told vendors GST was already included / Committee’s order to refund GST not inequitable / contractual position between vendors and agency irrelevant in this case / appeal dismissed / Committee’s decision confirmed
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
Liability / misconduct / licensee charged under s73a with misconduct for producing false valuation report four times in respect of property he was seeking to acquire an interest in / licensee did not attend hearing / Real Estate Agents Act 2008, s73, s109A, s110 / HELD / licensee sought to pass off valuation report as legitimate and from reputable valuation company / licensee admitted facts underlying charge / Tribunal rejected explanation that it was impossible for valuations to occur during COVID-19 restrictions / forgery of valuation report is dishonest even though licensee would receive no financial benefit and vendors would suffer no loss had he been successful / honesty essential to achieving purpose of Act and maintaining public confidence in profession / conduct a marked and serious departure from required standard of conduct / conduct would be regarded by agents of good standing and reasonable members of the public as disgraceful / charges upheld / penalty decision to follow
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
Penalty / unsatisfactory conduct / licensee found guilty under s72a (conduct falling short of expected standard), s72b (conduct contravening Act or Rules) and s72d (unacceptable conduct) for harassing tenants in emails concerning property viewings, threatening to sue tenants & knowledge of Residential Tenancies Act 1986 falling short of obligations as a real estate agent selling a tenanted property / Real Estate Agents Act 2008, s3, s72, s73, s110, s110A / Professional Rules 2012, r5.2, r6.3, r9.1 / HELD / conduct at moderate level of seriousness / threats not as serious as threats made in Subritzky and Li Wang (Re Complaint No C26114) / conduct in harassing tenants in manner that she did and in threatening to sue tenants was inappropriate / failed to accept responsibility for conduct / costs reduced as most serious charges not upheld and agreed statement of facts filed / censured / ordered to pay $3,000 financial penalty / ordered to undergo training / 20 per cent costs ($3,148.56)
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
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 did not file submissions / not disputed that licensee was required to pay suspension fee by certain date, received required communications from Registrar, and did not make payment by deadline / 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