C - Complaint No CA4042389 [2011] NZREAA 117 (12 May 2011)

Last Updated: 20 January 2013

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

And

In the Matter of Complaint No: CA4042389

In the Matter of Ms C

_{License Number: XXXXXXXX}

Decision of Complaints Assessment Committee

_{Dated this 12}th _{day of May 2011}

Complaints Assessment Committee: CAC10057

Chairperson: Anna Tierney

Deputy Chairperson: Joan Harnett-Kindley

Panel Member: Deirdre McNabb

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. Mrs L has complained to the Real Estate Agents Authority (the Authority) about the conduct of Ms C of Company A Limited. The complaint was received on 5 November 2010.

1.2. Mrs L has complained that Ms C rang her on the pretext of saying “hello” and told her that her house was on a mortgagee sale and that she had the right to bring people to view the property. Mrs L further complains that Ms C previously had accommodation problems, had stayed at her place and had the security gate code (which she had potentially given to other agents from Company A).

2. Material Facts

2.1. Mrs L‟s property was put up for mortgagee sale and Company A sales office was instructed to handle the sale by the second mortgagee.

2.2. Mrs L states in her complaint that after the property was put up for sale she was called by Mr H, an agent for the Company A office, who asked her to cooperate with him and to allow him entry to her property. Mrs L told him that she was recovering from an illness and a fall, and that she had informed her lawyer about the missed payments to a small loan and the matter would be settled as soon as possible. Mrs L states that Mr H made an unlawful entry into her premises after that call to take photos. She states that her property had a security gate and that visitors are required to ring a bell to be permitted inside (which Mr Humphries did not do).

2.3. Mrs L further states that on 10 October 2010 another agent, Mr D, walked right up to her door and „knocked fiercely‟. Mrs L states that she opened the door and asked Mr D to explain how he came through the security gate. Mrs L states that he did not answer her question and so she asked him to get out immediately or he would call the police.

2.4. Mrs L states that the following day another agent from the Company A office, Ms C, called

her on the pretext of saying “hello” and told her that her house was on mortgagee sale. Mrs L states that she said she called to explain that “even she could bring prospec buyers to show them the property. That I had no right to stop her.” Mrs L states in her complaint that Ms C had her security code as she had stayed at her property in the past.

2.5. Mrs L states she then called the manager of the Company A office to inform him that her lawyer was handling the matter and asked to put a stop to his agents “hurtful and outrageous behaviour”.

2.6. Mrs L then left for Australia and states she received a call from Philip D asking her to cooperate with him, and that on her return she received a further message from him that he still had the option to sell her house.

3. Relevant Provisions

Real Estate Agents Act 2008 (the Act) 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 wilful 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.

Section 89 Power of Committee to determine complaint or allegation

(1) A Complaints Assessment Committee (Committee) may make one or more of the determinations described in subsection (2) after both inquiring into a complaint or allegation and conducting a hearing with regard to that complaint or allegation.

(2) The determinations that the Committee may make are as follows:

(a) a determination that the complaint or allegation be considered by the Disciplinary

Tribunal:

(b) a determination that it has been proved, on the balance of probabilities, that the licensee has engaged in unsatisfactory conduct

(c) a determination that the Committee take no further action in regard to the complaint or allegation or any issue involved in the complaint or allegation.

Section 90 Hearings on papers

(1) A hearing conducted under section 89(1) by a Committee is to be a hearing on the papers, unless the Committee otherwise directs.

4. Discussion

4.1. The Committee considered the complaint by Mrs L about Ms C‟s conduct and the response

by Ms C.

_{Ms C‟s re sp o n se}

4.2. Ms C, in her response to the complaint states that she was shocked to see Mrs L‟s house on the Company A mortgage listings and called her out of courtesy and to ask her if everything was ok with her.

4.3. Ms C denies that she said to Mrs L that she had the right to bring anyone on to the property and states that she did not give the security code for the property to anyone at all, nor had she been anywhere near the property since June 2010 (well before it was listed as a

mortgagee sale).

_Discussion

4.4. In the Committee‟s view, there is no evidence to support the assertion that Ms C used or passed on Mrs L‟s security code.

4.5. The Committee can find no evidence of any action taken by Ms C that gives rise to anything that the Authority need to act on.

4.6. The Committee does not see any evidence of conduct that could be considered unsatisfactory or fall within the definition of misconduct under the Act. On this basis the Committee has decided to take no further action on this complaint.

5. Decision

5.1. The Committee has determined this complaint by a hearing on the papers, in accordance with section 90(1) of the Act, pursuant to section 90(2) the Committee‟s decision was made on the basis of written material before it.

5.2. As a result of the above, the Committee has determined pursuant to section 89(2)(c) of the

Act to take no further action on this complaint or any issue involved with the complaint.

6. Publication

6.1. One of the Committee‟s functions pursuant to section 78(h) of the Act is to publish its

decisions.

6.2. Publication gives effect the purpose of the Act of ensuring that the disciplinary process remains transparent, independent and effective. The Committee also regards publication of this decision as desirable for the purposes of setting standards and that it is in the public interest that the decision be published.

6.3. The Committee directs publication of its decision, but omitting the names and identifying details of the complainant (including the address of the property), the licensee and any third parties in the publication of its decision.

6.4. The Authority will publish the Committee‟s decision after the appeal period has ended. Any

application for an order preventing publication must be made to the Disciplinary Tribunal.

7. Right of Appeal

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

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

7.3. Further information on lodging an appeal is available by referring to the Guide to Lodging an Appeal at www.justice.govt.nz/tribunals.

Signed

Anna Tierney

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 12 May 2011