Ministry of Justice

Appeal / agency released deposit of $37,500 early without authority signed by all parties / transaction close to to holiday period / Committee found agency liable under s 123 and imposed $2,000 penalty / agency appealed against liability and penalty on basis of low gravity offending / Real Estate Agents Act 2008, s89, s111, s123 / Professional Conduct and Client Care Rules 2012, r5.1 / Real Estate Agents (Audit) Regulations 2009 / HELD / compliance with statutory and regulatory requirements not a ‘nice to have’ and breaches are treated seriously / public confidence underpins statutory provisions / agency’s wrongdoing at lower end of spectrum however not so low as to be below disciplinary threshold / Committee’s liability and penalty findings affirmed / appeal dismissed

Appeal / complainant vendor alleged that licensees misled him regarding ability to modify settlement date and did not recommend he seek legal advice / Committee determined it was clear to vendor that the date could only be adjusted by purchasers’ mutual agreement and that he was advised to seek legal advice / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Conduct and Client Care Rules 2012, r5.1, r6.4, r9.7 / HELD / appellant vendor must have understood that settlement was due to occur on specified date unless both parties agreed otherwise, with prior confirmation / no correspondence supported allegation that licensees represented settlement as flexible / licensees expressly reminded vendor of relevant clause and of his ability to seek legal advice / Committee’s decision confirmed / appeal dismissed

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

Appeal / purchasers entered into unconditional S&P agreement which could not settle due to lack of finance / incurred losses, including forfeited deposit / Committee found licensee engaged in unsatisfactory conduct in failing to exercise skill and care, and for failing to deal fairly with the parties / ordered $4,500 penalty and $6,678.44 in costs / Real Estate Agents 2008, s89, s111 / Professional Conduct and Client Care Rules 2012, r5.1, r6.2 / HELD / licensee aware of high risk aspects of transaction / took insufficient steps to mitigate risks / failed to raise or document vendor finance agreements / unsatisfactory conduct finding upheld / Committee erred in uplifting fine for lack of genuine remorse / fine reduced to $3,500 / Committee erred in costs orders / exercise of costs jurisdiction must adhere to natural justice / Committee provided brief reasons and failed to allow licensee opportunity to be heard / costs order reversed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint licensees failed to adequately communicate with complainant as to residential sale process relating to relationship property proceedings / alleged that licensees inappropriately managed and proceeded with sale, contrary to Family Court orders / Real Estate Agents Act 2008, s74, a112 / Professional Rules 2012 / HELD / licensees endeavoured to keep complainant informed throughout sale process / nature of dispute over compliance with Family Court orders not disciplinary matter involving licensees / allegation of unauthorised disclosure of information unsupported by evidence / licensees not responsible for safekeeping of complainant’s chattels and providing him access to property, especially given protection order in force restricting access / no evidence of misleading advertising / Committee’s decision upheld / no error of fact or law / application dismissed / Registrar’s decision confirmed

Application to review Registrar’s determination / Registrar cancelled licence as licensee failed to pay prescribed fee / Real Estate Agents Act 2008, s54h, s55, s112 / HELD / 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.

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint licensees failed to advise applicant that downstairs section of property had no “permit” / complaint licensees failed to explain that area still required “consent”, distinct from “permit” / Real Estate Agents Act 2008, s74, s112 / HELD / licensees not required to discover hidden or underlying defects, but must disclose known or likely defects to a customer / unauthorised work may be disclosable “legal defect” / licensees disclosed legal defect with downstairs area / reference to “permit” as opposed to “consent” immaterial given applicant’s due diligence / Committee’s decision upheld / no error of fact or law / application dismissed.

Appeal / property sold with numerous weathertight and other defects / building reports obtained by vendor, known to licensees, not disclosed to purchasers / Committee found unsatisfactory conduct for inadequate disclosure of defective window flashings, though not for defective roof or other items / licensees appealed against finding and penalty / purchasers appealed against dismissal of complaint regarding roof / Real Estate Agents 2008, s89, s111 / Professional Conduct and Client Care Rules 2012, r10.7 / licensees had no evidence supporting vendor’s assertion that window flashings had been repaired / re-inspection report indicated flashings had not been repaired / Committee correct to find breach / conversely, licensees’ failure to disclose specific roof defects immaterial given purchasers’ awareness of serious defects / re-inspection report suggested roof issues were addressed / $2,500 fine for licensee within acceptable range / appeals dismissed / Committee’s decision confirmed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint licensee misled purchaser as having a garage, when the garage was incomplete, defective and unconsented / Real Estate Agents Act 2008, s72, s73, s743a, s112 / Professional Rules 2012, r6.4, r10.7 / no evidence indicating that the licensee knew or should have known about the garage consent status or the incomplete retaining wall / no evidence of any “red flags” to otherwise notify the licensee about a possible issue with the garage’s consent status / Committee’s decision upheld / appeal dismissed / no error or fact or law / application dismissed / Registrar’s decision confirmed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complainant purchaser alleged listing licensees did not disclose that property was personal property of vendor licensee, pressured him to purchase, and that property was overpriced / Real Estate Agents Act 2008 / Real Estate Agents Act 2008, s74, s112, s136 /  HELD /  vendor licensee was not licensed at time of conditional sales agreement and therefore owed no obligation to disclose benefit / vendor obtaining licence shortly after settlement not captured by s 136 disclosure obligation / no evidence of property being sold at overvalue / price was determined by vendors and purchasers / preliminary inquiries supported dismissal of conflict of interest allegations / real estate transactions inherently stressful for parties / no evidence of undue or unfair pressure / no error of fact or law / application dismissed / Registrar’s decision confirmed.

Compensation referral / unsatisfactory conduct / Committee found license misled purchaser into believing a building consent application had been lodged, which did not in fact occur until after sale and purchase agreement had been signed / Real Estate Agents Act 2008, s72a, s93, s110 / Professional Rules 2012, r5.1, r6.4 / Fair Trading Act 1986, s43 / HELD / principles developed for award of loss or damage under FTA relevant to discretion to award compensation / while “loss by reason of the licensee’s unsatisfactory conduct” is to be interpreted broadly, the loss must have “casual connection” or be “closely connected” to wrongdoing / Tribunal unable to reconcile two differing sums claimed in original and amended statement of claim, as well as two differing breakdowns of claimed damages / failure to explain relevance of annexed invoices and casual or close connection to licensee’s wrongdoing / loss not proven / claim for compensation dismissed

Appeal / appellant alleged that licensee failed to market property in best interests, concealed conflict of interest, exerted undue or unfair pressure, and sold property at an undervaluation / Committee determined to take no further action / Real Estate Agents 2008, s892c, s 111 /  Professional Conduct and Client Care Rules 2012, r9.6 / HELD / evidence supported that appellant wanted to conclude sale without tenant’s knowledge, with no marketing / no evidence licensee did not act in vendors’ best interests / no evidence that licensee received payment or benefit from purchasers, or was acting to vendors’ detriment / no evidence of conflict of interest / licensee’s repeated expression of confidence in opinion as to best sales price available in face of higher expectations not unlawful pressure / no evidence of duress or coercion / licensee’s CMA supported by evidence and independent valuation / no evidence property sold at undervalue / Committee’s decision confirmed / appeal dismissed

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, cl17 / HELD / licensee did not complete CPD by deadline / Registrar correctly followed statutory process / Registrar must cancel licence as required by s54d / no error of fact or law / application dismissed / Registrar’s decision confirmed