C - Complaint No: CA3557478 [2010] NZREAA 114 (20 September 2010)

Last Updated: 4 August 2012

In the Matter of Part 4 of the Real Estate Agents Act 2008

And

In the Matter of Complaint No: CA3557478

In the Matter of Mr C

_{License Number: XXXXXXXX}

Decision of Complaints Assessment Committee

_{Dated this 20th day of September 2010}

Complaints Assessment Committee: CAC10030

Deputy Chairperson: Patrick Waite

Panel Member: Denise Bovaird

Complaints Assessment Committee - Decision to take no further action

The Complaint

The Complainant on 26 April 2010 filed a complaint against the Licensee Mr C in regard to Licensee Ms H using the email address of the real estate firm UVW (trading as XYZ) with which both Mr C and Ms H are associated as Licensed Real Estate Agents.

Material Facts

• Both the Complainant and the Licensee Ms H are related and are associated with a property owned by ABC which had until 18 December 2009 been listed with XYZ.

• The Complainant advised in her complaint that she had contacted Licensee Mr C with her concerns at Licensee Ms H using the firm‟s email and letterhead address in

communications with the Complainant and others associated with ABC.

• The Branch Manager of XYZ in his letter of 18 December 2009 advised the Trustees of ABC “that the Agency between [XYZ] and [ABC] for [the property] be cancelled with immediate effect. This is due to the lack of unanimous commitment, support and confidence by [ABC] in that engagement.”

• The Complainant wrote to the Managing Director of XYZ on 16 February 2010 regarding the use of the firms email address by Licensee Ms H.

_{• The Chief Executive of XYZ in his email of 26 February 2010 in response to the letter of 16}

February 2010 advised “The sending of communications relating to wide ranging aspects of

[ABC] and any related issues from a [XYZ] salesperson‟s email address was dealt with last year as you note, and a written undertaking given to cease same following discussion between [Mr C] and [Ms H]. Beyond that and the termination of the agency arrangement we had for [the property] our involvement has ceased. The key issue of use of the [XYZ] email system by a [XYZ] salesperson for non [XYZ] related issues has been addressed, has stopped and did so in October/November 2009. [XYZ] at this regional level, and also at a National Office level do not see what further actions could be expected to provide any further resolution in this matter.”

• The Complainant maintains that the XYZ email address continued to be used after

October/November 2009.

Relevant Provisions

The CAC examined the information supplied by the Complainant in her written complaint to determine whether S72 or S73 of the Real Estate Agents Act 2008 applied, i.e. was there evidence which would indicate that the Licensee could be considered guilty of unsatisfactory conduct (S72) or misconduct (S73).

Section 72 Unsatisfactory conduct

For the purposes of this Act, a licensee is guilty of unsatisfactory conduct if the licensee carries out real estate agency work that –

(a) falls short of the standard that a reasonable member of the public is entitled to expect from a reasonably competent licensee; or

(b) contravenes a provision of this Act or of any regulations of rules made under this Act; or

(c) is incompetent or negligent; or

(d) would reasonably be regarded by agents of good standing as being unacceptable.

Section 73 Misconduct

For the purposes of this Act, a licensee is guilty of misconduct if the

licensee‟s conduct –

(a) would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful; or

(b) constitutes seriously incompetent or seriously negligent real estate agency work; or

(c) consists of a willful or reckless contravention of –

(i) this Act; or

(ii) other Acts that apply to the conduct of licensees; or

(iii) regulations or rules made under this Act; or

(d) constitutes an offence for which the licensee has been convicted, being

an offence that reflects adversely on the licensee‟s fitness to be a

licensee.

Discussion

• The Complainant has raised concerns as to the use of a business email address for personal communication. She complained to the Licensee as she saw him as “responsible for his staff and their actions.”

• It would appear to the Panel that the Licensee undertook steps by way of a signed agreement with the Complainant to stop the use of the business email address for personal correspondence.

• In deciding whether the complaint would be one that the Panel could consider reference was made to the Real Estate Agents Act 2008, specifically to Section 4 which defines real estate agency work or agency work. “...any work done or service provided, in trade, on behalf of another person for the purpose of bringing about a transaction.”

• XYZ cancelled the Agency for the property on 18 December 2009 which was the focus of email communication between the Complainant and Licensee Ms H and the resultant complaint in regard to Licensee Mr C. This action predated the complaint, i.e. at the time of the complaint there was no „agency‟ or a property transaction involved with the Licensee.

Decision

In reaching its decision the CAC panel carefully considered:

• The background to the complaint and the information supplied by the Complainant.

• The actions taken by the Licensee and XYZ following receiving the complaint in regard to the use of business email addresses for personal correspondence, i.e. instructions were issued to cease using.

• At the time of the complaint XYZ did not have an agency for the sale of a property owned by ABC, i.e. the Licensee who is subject to the complaint was not involved in “real estate agency work”.

• Whether the complaint could be considered to demonstrate that the Licensee‟s conduct could be considered „unsatisfactory (S72)‟ or „misconduct (S73)”.

The CAC panel concluded that the Licensee‟s conduct could not be considered unsatisfactory nor could it be seen as misconduct and therefore the Licensee was not in breach of the Real Estate Agents Act 2008 and therefore no further action will be taken with this complaint.

Publication

The Committee directs that this decision is to be published, but that names of parties are withheld.

Right of Appeal

A person affected by a determination of a Complaints Assessment Committee may appeal to the Disciplinary Tribunal against a determination of the Complaints Assessment Committee within 20 working days after the date of this notice.

Appeal is by way of written notice to the Tribunal. You should include a copy of this Notice with your Appeal.

Further information on lodging an appeal is available by referring to the Guide to Lodging an

_{Appeal at www.justice.govt.nz/tribunals.}

Signed

Patrick Waite

Deputy Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 20 September 2010