Ministry of Justice

Penalty / misconduct / former licensee found guilty 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, s3, s73a, s93, s110, s110A / HELD / theft of over $92,000 is at high end of misconduct and undermines purpose of the Act which is to protect the interests of consumers / consumers are entitled to expect licensees to act with honesty and integrity / licensee provided no evidence of financial circumstances / first appearance before Tribunal, but wrongdoing was not an isolated incident / admitted misconduct and apologised, but only at the last moment at the hearing / if licensee still retained a licence it would have been cancelled / censured / ordered to pay $15,000 financial penalty / 50 per cent costs ($17,477.75)

Appeal / complaint licensee made a misleading representation about it being easy to obtain council consent to substantially move building platform position on title plan / Committee took no further action / Real Estate Agents Act 2008, s111 / Professional Rules 2012, r5.1, r6.4 / HELD / breach of r5.1 & r6.4 / Tribunal accepts licensee made the representation & that it was capable of affecting the purchaser’s decision / not necessary to prove reliance to breach Rules / representation made in good faith, as minor adjustments had been approved for other building platforms / breach does not meet threshold for disciplinary response / purchaser has been a real estate agent for decades / rejected due diligence clause offered / was aware consent would be required / vendor advised platform could not be moved / not reasonable to rely on representation / Committee’s decision confirmed

Application for leave to adduce new evidence / Real Estate Agents Act 2008, s105, s111 / appeals reconsider evidence and material provided to the Committee / admissibility / new evidence must be credible, not able with reasonable diligence to have been provided to the Committee, cogent & would have an important influence on the outcome / overriding consideration is the interests of justice / relevant whether admitting new evidence would require further evidence or cross-examination / not an opportunity to conduct case differently / HELD / complaints process provided multiple opportunities to produce evidence / all new evidence could have been provided to Committee with reasonable diligence / recordings of post-conduct conversations do not contain concessions as to liability & would not have important impact / generic information leaflet not material / better evidence available about auction conduct than letter from witness & would have no impact / application declined

Application for review / Registrar’s determination not to pursue a complaint as it only disclosed inconsequential matter / applicant applied to review Registrar’s decision alleging Registrar had erred / Real Estate Agents Act 2008, s 74(3)(a), s 112 / Kacem v Bashir [2010] NZSC 112 / Lawrence v Registrar of the Real Estate Authority [2022] NZREADT 6 / Vosper v Real Estate Agents Authority [2017] NZHC 453 / BL v SFK [2013] NZIACDT 57 / HELD / Registrar’s decision has no error of law or principle, irrelevant considerations, failure to take into account relevant considerations, and is not plainly wrong / licensee had no duty to inform prospective purchaser of an offer by another prospective purchaser if not instructed by vendor to do so / no evidence that information about vendor’s medical appointments was false / licensee’s written communications do not portray any antagonism / application dismissed

Application to review Registrar’s determination / Registrar cancelled licence as person failed to complete required continuing education / whether licence was validly cancelled & should Registrar exempt or defer CPD hours / Real Estate Agents Act 2008, s54d, s55, s56, s112 / Real Estate Agents (Continuing Professional Development Rules) Notice 2018, cl13 / HELD / Registrar correctly followed statutory process & made final decision to cancel licence / request for exemption or deferral of CPD requirements under cl13 must occur before licence is cancelled, and appears to need to be made before the due date of the CPD hours to avoid triggering s54d / licensee did not check emails, but it is the licensee’s responsibility to ensure they receive communications from Registrar / Registrar must cancel licence as required by s54d / no error of fact or law / application dismissed, Registrar’s decision confirmed

Appeal / complaint licensees failed to disclose relevant information about an agreement affecting lessee’s liability for outgoings / Committee found unsatisfactory conduct / Real Estate Agents Act 2008, s72, s111 / Professional Rules 2012, r6.2, r6.4 / HELD / Tribunal not persuaded Committee’s conclusions were wrong / property was advertised as having a specific return, “+ ... OPEX” / failure to draw attention to a known agreement between vendor and lessee, reducing lessee’s liability for outgoings, affected purchaser’s knowledge of expected return / insufficient to rely on purchaser’s solicitor to identify agreement bundled in with sale and purchase agreement / licensees were also aware purchasers could have claimed a credit from vendor at settlement and did not disclose this / no submissions that Committee made a legal error in setting penalty / appeal dismissed / Committee’s decision confirmed

Liability / licensee charged under s73a & s73ciii / licensee recklessly contravened r6.3 by consensually hugging client, together with a peck on the cheek & their cheeks touching, and an accidental brushing of their lips / conduct occurred at remote open home and the parties were not previously known to each other / Real Estate Agents Act 2008, s3, s73, s91, s108, s110 / Professional Rules 2012, r6.3 / HELD / conflicting evidence given by complainant and licensee / Tribunal found complainant’s evidence was a fabrication due to an implausible narrative, an inconsistency with another witness, and evasiveness on whether she shared certain personal information / on licensee’s evidence, event was consensual and not disgraceful / however, conduct would likely bring industry into disrepute, as private space is critical in professional relationships / licensee was recklessly indifferent to the rules as he would have known it was inappropriate / 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, s54d, s55, s112 / Real Estate Agents (Continuing Professional Development Rules) Notice 2018 / HELD / not disputed that licensee was required to complete CPD, received required communications from Registrar, and did not complete CPD / statutory process followed correctly / Registrar must cancel licence as required by s54d / no error of fact or law / application dismissed, Registrar’s decision confirmed

Application to review Registrar’s determination / Registrar cancelled licence as person failed to complete required continuing education / Real Estate Agents Act 2008, s54d, s55, s112 / Real Estate Agents (Continuing Professional Development Rules) Notice 2018 / 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 / licensees are responsible for ensuring they receive both email and postal correspondence / no error of fact or law / application dismissed, Registrar’s decision confirmed

Liability and penalty / salesperson charged under s73a / agency charged under s73ciii or s73b / salesperson forged signatures on six agency agreements / agency internally disciplined salesperson when first forgery discovered, but did not report misconduct to REAA / Real Estate Agents Act 2008, s3, s73a, s73b, s73ciii, s91, s110, s1102e, s110A / Professional Rules 2012, r7.2 / HELD / salesperson admitted disgraceful conduct / forgery deceitful, disgraceful, despite no loss or financial gain / ordered censure / licence would have been cancelled if held, instead s1102e order made prohibiting engagement for five years / no fine / agency admitted wilful contravention of r7.2, s73ciii charge upheld / internal handling motivated by welfare concern, but should have advised REAA of concerns with report / after learning of first forgery, should have investigated other sales / low-level wrongdoing / ordered censure / $2,000 fine / 50 per cent costs ($4,000), split evenly

Application to review Registrar’s determination / Registrar cancelled licence as person failed to complete required continuing education / Real Estate Agents Act 2008, s54d, s55, s112 / Real Estate Agents (Continuing Professional Development Rules) Notice 2018, cl7 / HELD / applicant did not file submissions / no dispute applicant failed to complete continuing education / satisfied Registrar made no error of law and followed correct process / s54 is imperative and if one provision applies, the Registrar has no discretion not to cancel the licence / application dismissed, Registrar’s decision confirmed

Appeal / complaint licensees misleadingly advertised property / ad specified there were two quality houses & licensees provided rental appraisal for both / bungalow lacked resource consent / whether licensees should have advertised there was no resource consent / Committee found unsatisfactory conduct / Vosper v Real Estate Agents Authority [2017] NZHC 453 / Professional Rules 2012, r 6.4 / HELD / question is whether statement or omission is capable of misleading a customer / advertisement accurate, not misleading, bungalow habitable and occupied / evidence demonstrates bungalow did not need resource consent at the time of sale as it was built before consent required / licensees did not tell purchasers bungalow had resource consent & advised all prospective buyers it did not / lack of resource consent immaterial / Committee’s decision reversed / unsatisfactory conduct finding vacated / penalty set aside / appeal allowed

Appeal / complaint licensee took commission before contractually entitled, did not hold deposit in trust account until agreement was fully unconditional, and should have refunded full deposit when agreement was cancelled / Committee took no further action / Real Estate Agents Act 2008, s111, s122, s124, s126 / Professional Rules 2012, r9.1 / HELD / applications to introduce further evidence declined / jurisdiction / fresh complaint licensee did not comply with s126 cannot be addressed on appeal / Tribunal not persuaded Committee was wrong that licensee entitled to take commission when agreement was declared unconditional / consequentially, licensee did not breach fiduciary duties or duties as stakeholder / appeal dismissed, Committee’s decision confirmed