Ministry of Justice

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

Appeal / appellants alleged that licensee took advantage of elderly vendor through undue pressure to sell property, failed to act in his best interests and in accordance with her fiduciary obligations, failed to fulfil professional obligations in relation to contractual documents, and committed elder financial abuse / Committee determined to take no further action / Real Estate Agents 2008, s72, s73, s80, s111, s126 / Professional Conduct and Client Care Rules 2012, r6.3, r9.1, 9.17 / HELD / consumer protection purposes underpin requirement for licensee to recommend legal advice prior to signing document / Committee erred in considering subsequent circumstances / cannot retrospectively satisfy obligation / nonetheless relatively minor breach did not warrant disciplinary response / fresh issue s 126 compliance issue fell outside appellate jurisdiction / evidence did not support allegations of financial misconduct or undue pressure / Committee’s decision confirmed / appeal dismissed

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matter / licensee referred complainant to brother for building works after being advised of roof defects and difficulty locating contractors / complainant alleged faulty workmanship following subcontracted works and inability to recover monies paid in error /  Real Estate Agents Act 2008, s72, s74, s112 / Professional Conduct and Client Care Rules 2012, r6.4, r10.2, r10.6, r10.7 / HELD / no evidence to suggest licensee was on notice of roof leaks prior to being contacted by complainant’s brother / no breach of disclosure obligations to prospective purchasers concerning roof issues / no conflict of interest in licensee referring complainant to brother having being advised of difficulty locating roofing contractors / no evidence of dishonesty in relation to progression of building works / no lack of written appraisal /  application dismissed / Registrar’s decision confirmed

Compensation referral / Committee found three licensees engaged in unsatisfactory conduct in failing to disclose known unconsented works in residential property / defects not disclosed in marketing materials nor to prospective purchaser / successful purchaser at auction seeks compensation for legal costs incurred, having cancelled agreement upon discovering unconsented works / Real Estate Agents Act 2008, s931ha, s1105 / Professional Rules 2012, r6.4 / HELD / principles developed by upper courts under Fair Trading Act 1986 relevant / quantum of loss or damage to be awarded, if any, to do justice to parties / purchasers undertook reasonable due diligence of property sold at auction two days after viewing, during COVID-19 restrictions / expenses reasonably and justifiably incurred, with loss arising due to licensees / no evidence of contributory negligence / high level of unsatisfactory conduct / licensees ordered to pay $10,076.44

Application to review Registrar’s determination not to pursue complaint was frivolous or vexatious or not made in good faith / sixth complaint stemming from initial allegation that licensee made misrepresentations in relation to property’s heating system / Real Estate Agents Act 2008, s743b, s792c, s112 / HELD / complainant sought to relitigate complaints previously made which have been dismissed by Registrar and Tribunal / sixth complaint simply repeats the substance of earlier complaints and is not made in good faith / no credible evidence to support allegations that licensee lied to Authority / complainant was advised of appeal rights to High Court following Tribunal decision but elected not to exercise those rights / application dismissed / Registrar’s decision confirmed

Professional responsibilities and professional practice / rubber stamping / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1, cl2e, cl14, cl18a, cl26ai, cl26aiii, cl26b, cl26d / adviser failed to maintain direct communications with client, could not communicate through unlicensed agent / breach of fundamental obligation to personally contract with and engage with visa applicant / adviser contributed to creating an environment for fraud to be perpetrated / failed to provide evidence of licence / failed to provide client opportunity to review INZ application / failed to personally confirm application lodged and provide timely updates / failed to retain visa application and records of communications / availability of visa application from INZ website immaterial to obligation to maintain records / however, no evidential foundation to indicate conflict of interest / alternative negligence heads dismissed / complaint partially upheld / sanctions to follow

Appeal / purchasers of residential property later discovered no legal vehicle access as driveway crossed a neighbouring property / licensees failed to identify and disclose access issue / Committee determined to take no further action, finding that reasonably competent licensee would not have been alerted to access issue / Real Estate Agents 2008, s111 / Professional Conduct and Client Care Rules 2012, r5.1 and r10.7 / HELD / licensee must “know what they are selling” but not expected to be solicitors, surveyors or building inspectors / obliged to disclose defects which are known or would appear “likely” or a “significant potential risk” / reasonably competent licensee would have identified significant risk posed by dual access to adjacent properties / fault apparent when documents considered alongside physical viewing of property / r5.1 and r10.7 breached / Committee’s decision reversed, finding of unsatisfactory conduct substituted against licensees / penalty decision to follow

Application to review Registrar’s determination not to pursue complaint as it only disclosed inconsequential matters / applicant vendor alleged licensee failed to disclose conflict of independent dealings with purchaser, failed to adequately market property and settle transaction, and pressured vendor to sell by disclosing purchaser’s personal circumstances / Real Estate Agents Act 2008, s74, s112 / Professional Conduct and Client Care Rules 2012, r6.1, r6.3, r6.4, r9.1, r9.2, r9.3, r9.4, r 9.14, r9.16 / HELD / no evidence of improper conflict management / licensee had advised applicant of interest in engaging with purchasers prior to ASP / subsequent dealings were independent / no evidence to support allegation of undue pressure / no evidence of breach of professional obligations in respect of sales price achieved / no evidence of substandard marketing or settlement papers / application dismissed / Registrar’s decision to take no further action confirmed