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Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / Real Estate Agents Act 2008, s74, s112 / HELD / second complaint / Registrar’s decision on first complaint was not reviewed / Tribunal’s task is to determine whether Registrar appropriately exercised discretion under s74 / no evidence supporting allegations against licensee / not shown that Registrar’s findings were wrong / 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
Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / Real Estate Agents Act 2008, s72, s73, s74, s112 / Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012, r10.2 / Kacem v Bashir [2010] NZSC 112 / HELD / satisfied appraisal met requirements of r 10.2 / licensees not expected to predict future rateable value of properties / no evidence of any undue influence or pressure on part of licensees / no evidence of unsatisfactory conduct or misconduct requiring disciplinary action / not demonstrated Registrar’s decision was wrong / application dismissed / Registrar’s decision confirmed
Appeal / licensee advertised property as having consented visitor facility and ready to generate income / facility had resource consent but did not have certificate of approval or code compliance certificate / purchasers contended licensee’s lack of due diligence was a serious error which impacted them financially / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r5.1, r6.4, r9.2, r10.7 / HELD / agents must take reasonable steps to verify representations of positive statement of fact / however, not reasonably expected to review resource consent line by line to identify need for further certification / here ‘red flag’ existed in form of small notation in advice notes / purchasers must also undertake their own due diligence and are responsible for their agent’s or solicitor’s actions / licensee made innocent misrepresentation but otherwise performed as competent agent / no sanctions warranted / Committee’s decision upheld / appeal dismissed
Liability and penalty / real estate agency pleaded guilty to amended charge of seriously incompetent or seriously negligent real estate agency work for non-compliance with Audit Regulations over period of nearly four years / failure to appoint auditor, notify Authority of trust account transactions, provide monthly balances, and prepare statement or statutory declaration / Real Estate Agents Act 2008, s73b, s110, s1102f / Real Estate Agents (Audit) Regulations 2009, reg9, reg12, reg15, reg16 / HELD / Tribunal emphasised importance of trust account compliance for public protection / concerning length and extent of non-compliance / agency obliged to be aware of its audit obligations / agency admitted liability and cooperated with Authority / no prior disciplinary history / company officer undertook courses to ensure audit compliance / mid-level penalty appropriate / Tribunal ordered censure and imposed $14,000 fine
Liability / unsatisfactory conduct / licensee charged under s73(a) and alternative charge of s72(b) for entering into commission sharing agreement with purchaser which he failed to disclose to vendors / Real Estate Agents Act 2008, s73, s72, s109, s110 / Professional Rules 2012, r6.1, r6.3 / HELD / voluntarily and unequivocally entered into agreement to share his commission with purchaser unknown to vendors / sharing agreement amounted to breach of fiduciary obligation of loyalty to client in breach of r6.1 / conflict of interest / no financial implications for client irrelevant / client entitled to know of licensee’s advantage / lowers the standing and reputation of industry in breach of r6.3 / not accepted licensee under duress / however, unable to conclude licensee wilfully contravened Rules due to irreconcilable factual accounts / breach of Rules and unacceptable conduct found, but not disgraceful conduct / unsatisfactory conduct charge upheld / penalty decision to follow
Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / complaint against agency and licensees arose out of purchaser’s failure to settle / Real Estate Agents Act 2008, s743a, s742b, s112 / Kacem v Bashir [2010] NZSC 112 / HELD / matters complained about included failing to send full documentation to purchaser, the appraisal valuation, disclosure of the purchaser’s identity, communication about relisting under the agency agreement, not seeking a sufficient deposit, altering documents and dishonesty / no evidence of breach of professional standards provided and applicant failed to establish Registrar’s decision was flawed / Tribunal declined to consider new allegations on review / Registrar not required to undertake any investigation / applicants can provide evidence from witnesses they deem necessary directly / application dismissed / Registrar’s decision confirmed
Appeal / complaint licensee did not disclose occupants of neighbouring property had gang connections / property also in rough condition / purchaser contended licensee avoided showing neighbouring property during video call / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r5.1, r6.2, r6.4, r10.7 / HELD / property purchased sight unseen / previous open home cancelled due to large gathering nearby neighbouring property with some gang members present / licensee not aware neighbouring property had gang connection or that gang tangi was being hosted there / one-off event / Complaints Assessment Committee 1907 v Tapu [2021] NZREADT 32 distinguished / gang connections and general condition not defects in land for r10.7 / insufficient evidence licensee avoided showing neighbouring property / Committee’s decision confirmed / appeal dismissed
Liability and penalty / real estate agency admitted misconduct for failure to submit monthly trust account reconciliations on time over three financial years, breaching Audit Regulations on 25 occasions / breaches included delays due to staff changes, administrative issues and COVID-19 disruptions / corporate defendant / charge amended by consent / Real Estate Agents Act 2008, s73b, s911d, s110, s1102f / Real Estate Agents (Audit) Regulations 2009, reg15 / HELD / Tribunal emphasised importance of trust account compliance for public protection / misconduct aggravated by repeated non-compliance despite reminders and inadequate systems to safeguard client funds / mitigating factors included admission of liability, cooperation with Authority, no previous disciplinary history and acknowledgement of COVID-19 impact / Tribunal ordered agency to pay $7,000 fine, and censure
Application for leave to adduce new evidence / Real Estate Agents Act 2008, s105, s111 / appellant sought to produce affirmation and supplementary affidavit / HELD / affirmation supporting appellant’s contention about his knowledge of other auction bidders is admissible / shows Committee may have made wrong inference / while arguable it may have been provided earlier with reasonable diligence, admissible as in the interests of justice / other matters addressed in affidavits not admissible as not new, cogent, or could have been provided with reasonable diligence / balance of application to produce new evidence dismissed / application partially successful
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, s137 / Professional Rules 2012, r10.3 / 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 s 112 reviews, but should only be applied in context of limited grounds of review in Kacem / applicant adduced no further evidence that was not already before Registrar / no evidence to support allegation that licensee’s advertising was misleading, that licensee was overcharged for advertising services, or that licensee’s manager failed to supervise and manage the licensee adequately / no error of fact or law / applications dismissed / Registrar’s decision confirmed
Appeal / real estate agency advertised motel with drone photographs including appellant’s neighbouring property / appellant complained of privacy invasion, unsatisfied with principal agent’s response / Committee took no further action / Real Estates Agents Act 2008, s3, s4 s111 / Professional Rules 2012, r5.1, r5.2 / HELD / no evidence of privacy breach, listing photographs considered innocuous / concerns addressed by removing and blacking out photographs / photographs removed when motel sold / alleged false and misleading information in principal agent’s response to complaint was careless language rather than deliberate misstatement / email inferred necessary consents were obtained, but no consents needed / marketing and photography are real estate agency work / no breach of professional rules or unsatisfactory conduct / appeal dismissed / Committee’s decision confirmed
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