Ministry of Justice

Liability / misconduct / licensee charged under s73a (disgraceful conduct) for failing to account for $92,210 of bond money relating to 49 residential tenancies paid to his property management company to be transferred to Tenancy Services / instead, bond money was retained for use by his businesses / Real Estate Agents Act 2008, s73, s91 / Residential Tenancies Act 1986, s19 / HELD / licensee admits charge and apologised at the hearing / conduct is a marked and serious departure from the expected standard of a professional real estate agent and would be regarded by agents of good standing and reasonable members of the public as disgraceful / honesty is essential to achieve the purpose of the Act, particularly public confidence in the industry / charge upheld / penalty decision to follow

Costs applications by appellant and licensee / appellant unsuccessfully appealed Committee’s decision to take no further action / complaint and appeal alleged licensee was dishonest, acted in bad faith, and faked a document / Real Estate Agents Act 2008, s110A, s111 / HELD / no evidential basis for complaint / s110A2 factors not present / appellant did not lack good faith and did not obstruct process, and believed allegations to be true / no reasonable basis for appeal, particularly regarding dishonesty, fake document and bad faith allegations / licensee entitled to reasonable contribution towards costs, but in the absence of bad faith or obstruction, not entitled to indemnity costs / two-thirds of reasonable costs appropriate / costs of $11,560 awarded to licensee / no basis for appellant’s costs application

Appeal / complaint licensee did not disclose specific leak, conspired to have appellant vacate property to hide the leak, falsely alleged the appellant delayed listing and settlement, and overcharged for marketing / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r6.2, r10.7 / HELD / no breach of r10.7 or r6.2 / Committee addressed defects generally, did not specifically address specific leak / nevertheless, property marketed and sold on “as is, where is” basis, and evidence shows licensee disclosed specific leak to potential purchasers / not required to investigate gravity or source of leak / advice that vacant premises would achieve best sale price appropriate, no bad faith motive / no evidence of overcharging, or that licensee blamed appellant for delaying listing or settlement / licensees must be honest to owners about disbursements / appeal dismissed

Liability / misconduct / first licensee charged under s73b or s72b for using previous signed agreement to draft a new agreement, sending that new agreement to another licensee without removing previous signatures, and not ensuring new signatures were obtained / second licensee charged under s73a or s73b for amending new agreement to include initials, instead of having agreement signed / Real Estate Agents Act 2008, s3, s72b, s73a, s73b / Professional Rules 2012, r5.1, r6.1, r6.3 / HELD / neither licensee found to be a credible witness / first licensee breached rr5.1, 6.1 & 6.3, guilty under s73b / failure to delete signatures and initials of parties before forwarding document a serious departure from acceptable standards / second licensee guilty under s73b / failure to check whether he was acting correctly in inserting initials was seriously negligent / penalty decision to follow

Application to review Registrar’s determination / Registrar cancelled licence as person failed to complete required continuing education / Real Estate Agents Act 2008, s37, s54d, s55, s112 / Real Estate Agents (Continuing Professional Development Rules) Notice 2018, cl7 / HELD / not disputed that licensee was required to complete CPD by certain dates, received required communications from Registrar, and did not complete CPD by deadline / statutory process followed correctly / Registrar must cancel licence as required by s54d / no error of fact or law / application dismissed, Registrar’s decision confirmed

Appeal / complaint licensee and/or agency refunded deposit to incorrect party / relevant conduct occurred in 2003, complaint made in 2021 / Committee took no further action under s801a due to length of time that had elapsed / Real Estate Agents Act 2008, s801a, s111/ HELD / Committee’s use of s801a an exercise of discretion / Kacem v Bashir [2010] NZSC 112 / Committee’s decision has no error of law or principle, irrelevant considerations, failure to take into account relevant considerations, and is not plainly wrong / licensee has no documentation whatsoever relating to deposit monies and cannot provide a defence / relevant corporate agency is no longer a licensee and has been liquidated and removed from Companies Register / appeal dismissed   

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.