Cashmore - Complaint No CA3949536 [2011] NZREAA 152 (2 June 2011)

Last Updated: 23 January 2013

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

And

In the Matter of Complaint No: CA3949536

In the Matter of David Cashmore

Licence Number: 10003244

Notice of Determination of Complaints Assessment Committee

Dated this 2nd day of June 2011

Complaints Assessment Committee: CAC10100

Chairperson: Paul Morten

Deputy Chairperson: Rob Crozier

Panel Member: David Russell

Complaints Assessment Committee

Decision finding unsatisfactory conduct

1. The Complaint

1.1. Mr Jackman (the Complainant) is the Chief Executive of the New Zealand Registered Architects

Board (the Board).

1.2. Mr Cashmore (Licensee) is a licensee under the Real Estate Agents Act 2008 (the Act). He works for

Success Realty Ltd, a Hamilton agency, which is part of the Bayleys Realty Group.

1.3. In September 2010 Mr Jackman laid a complaint with the Real Estate Agents Authority (the Authority). It is common ground that the Licensee is named as the agent of a property advertised for sale in Hamilton on the internet. The internet advertisement was placed in April 2010. In October 2010, the property was advertised in a Bayleys publication.

1.4. Both the advertisements describe the property as:

"Designed by award winning architect Noel Jessop this stunning... townhouse".

1.5. In an advertisement for another property placed by the agent in the same Bayleys publication, the

Licensee described the property as:

"Innovative design by architect Murray Price....."

1.6. The Complainant says that neither Mr Jessop nor Mr Price is an "architect". He says this can be confirmed by a search of the New Zealand Architects' Register, which can be accessed at www.nzrab.org.nz. He argues that the fact that the Licensee describes Mr Jessop as an "award winning architect" indicates that the Licensee sees this as adding lustre and therefore market value to the property. He asserts that in this way the Licensee is attempting to use misinformation to enrich himself and the vendor at the expense of a buyer.

1.7. He says the advertisements are a breach of rule 6.4 of the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009 (the Client Care Rules), which prohibits licensees from misleading customers or clients, or providing false information, or withholding information that should by law or fairness be provided to a customer or client.

1.8. The Complaints Assessment Committee (Committee) understands that Mr Jessop has a New

Zealand Certificate in Drafting. Mr Price has a New Zealand Certificate of Architecture.

1.9. Neither Mr Jessop nor Mr Price are architects who are registered under the provisions of the

Registered Architects Act 2005 (the Registered Architects Act).

2. Material Facts

2.1. The Licensee accepts that Mr Jessop and Mr Price are not registered architects.

2.2. He stated in his 25 January 2011 reply to the complaint that the respective properties' sellers told him the houses had been designed by an architect. Unfortunately, he says that he made no checks at the time to verify these statements.

2.3. He was contacted by Mr Jessop in November 2010, and advised that Mr Jessop was not an architect, and that he needed to amend his advertising material. He immediately changed the internet text, at his own cost.

2.4. He went back to the seller of the property that was designed by Mr Price, and the seller told him again that the property was designed by an architect.

2.5. He was not aware of the NZRAB register until January 2011, when he first received Mr Jackman's

September 2010 complaint.

2.6. Interviewed by the investigator assisting the Committee in March 2011, the Licensee said that the seller of the Jessop designed house told him the property was designed by Mr Jessop who was "award winning". The Licensee said he understood Mr Jessop was an architect. He even checked Mr Jessop's website, which said "Noel Jessop Architecture".

2.7. In the same interview, he repeated that he specifically asked the owner of the Price-designed property whether the property was designed by an architect, and the seller told him that it was. He looked for a website linked to Mr Price, but was unsuccessful.

2.8. The owner of the Jessop-designed property, who owns his own construction company, knew Mr Jessop was an architectural designer, and has told the investigator he thought the terms were interchangeable. He says he told the Licensee the property was designed by Noel Jessop

Architecture.

2.9. The owner of the Price-designed property said the Licensee specifically asked her if Mr Price was indeed an architect, as the Licensee believed him to be a draughtsman. She said to her knowledge he was an architect. She explains that she based that on the fact that the plans of the property say "architectural design", and she assumed that meant they were drawn up by an architect. She understood the Licensee was going to check that Mr Price was in fact an architect.

2.10. The Licensee says he did not discuss with her whether he would check the background of the

“Architect" later, that was just an assumption by the seller.

3. Relevant Provisions

3.1 Real Estate Agents Act 2008

Section 3 of the Act provides as follows:

3 Purpose of Act

(1) The purpose of this Act is to promote and protect the interests of consumers in respect of transactions that relate to real estate and to promote public confidence in the performance of real estate agency work.

(2) The Act achieves its purpose by—

(a) regulating agents, branch managers, and salespersons: (b) raising industry standards:

(c) providing accountability through a disciplinary process that is independent, transparent, and effective.

Section 72 of the Act provides as follows:

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 or 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.

3.1. Unsatisfactory conduct must relate to the carrying out of "real estate agency work". Real estate

agency work or agency work is defined in section 4 of the Act, and means any work or services provided, in trade, on behalf of another person for the purpose of bringing about "a transaction".

3.2. The word "transaction" is also defined in section 4. The definitions relate to the sale, purchase, or other disposal or acquisition of land, leasehold interests in land, transferable licences, occupation rights, and businesses.

3.3. The Committee finds that the placing of this advertisement comes within the definition of "real estate agency work".

3.4. The Real Estate Agents Act ( Professional Conduct and Client Care) Rules 2009

Rule 6.2, 6.3 and 6.4 of the Client Care Rules provide:

6 Standards of professional conduct

6.2 A licensee must act in good faith and deal fairly with all parties engaged in a transaction.

6.3 A licensee must not engage in any conduct likely to bring the industry into disrepute.

6.4 A licensee must not mislead a customer or client, nor provide false information, nor withhold information that should by law or fairness be provided to a customer or client.

3.5. The Registered Architects Act 2005

Section 4 of the Registered Architects Act provides:

registered means registered under section 10.

registered architect has the meaning set out in section 6.

Section 6 provides:

6 Title of registered architect

A person is a registered architect if he or she—

(a) is registered; and

(b) holds a current certificate of registration.

Section 7 provides:

7 Protection of titles registered architect and architect

(1) No person, other than a registered architect, may use in connection with his or her business, trade, employment, calling, or profession—

(a) the title “registered architect”; or

(b) any words, initials, or abbreviations of that title that are intended to cause, or that

may reasonably cause, any person to believe that the person using those words, initials, or abbreviations is a registered architect.

(2) No person who designs buildings, prepares plans and specifications for buildings, or supervises the construction of buildings may use the title “architect” unless he or she is a registered architect.

(3) Despite subsections (1) and (2), a person may use the title “registered architect” or “architect” (or words, initials, or abbreviations of those titles), in accordance with the rules, in representing qualifications or titles awarded by overseas agencies.

(4) A person who contravenes subsection (1) or subsection (2) commits an offence, and is liable on summary conviction to a fine not exceeding $10,000.

Section 10 provides:

10 Board to register applicant or decline application

(1) If the Board is satisfied that an applicant is entitled, under section 8, to be registered as a registered architect, the Board must—

(a) register the applicant; and

(b) notify the applicant that he or she is registered; and (c) issue to the applicant a certificate of registration; and (d) enter the applicant's name in the register.

4. Discussion

4.1. Section 7 of the Registered Architects Act prevents a person who is not a registered architect in terms of that Act from describing themselves as a registered architect or architect.

4.2. The exception in section 7(3) (for those representing qualifications or titles awarded by overseas agencies) is not relevant to this case.

4.3. While a licensee is unlikely to be prosecuted under section 7 of the Registered Architects Act for labelling a third party as an architect when they are not, that does not mean that the Act's description of who may or may not describe themselves as an "architect" is irrelevant to the Committee's consideration of the Licensee's conduct in this case.

4.4. It is clear that dictionary definitions of the word "architect" are less specific than the interpretation of the term "registered architect" in the Registered Architects Act. Consider, for example, this extract from Wikipedia:

"An architect is a person trained in the planning, design and oversight of the construction of buildings, and is licensed to practice architecture. To practice architecture means to offer or render services in connection with the design and construction of a building, or group of buildings and the space within the site surrounding the buildings that have as their principal purpose human occupancy or use. Etymologically, architect derives from the Latin architectus, itself derived from the Greek arkhitekton (arkhi-, chief + tekton, builder), i.e. chief builder

Professionally, an architect's decisions affect public safety, and thus an architect must undergo specialized training consisting of advanced education and a practicum (or internship) for practical experience to earn a license to practice architecture. The practical, technical, and academic requirements for becoming an architect vary by jurisdiction (see below).

The terms architect and architecture are also used in the disciplines of landscape architecture, naval architecture and often information technology (for example a software architect). In most of the world's jurisdictions, the professional and commercial use of the term “architect”, outside of the etymological variants noted, is legally protected."

4.5. The Committee has considered whether the word "architect" in the advertisements must be given an "ordinary or natural meaning", which is simply "a person who designs buildings". If "the public" uses the words "architecture" "architecturally" and "architect" interchangeably, how can a licensee be in breach of professional standards by making the same type of error?

4.6. The Committee does not accept that the use of the word "architect" in the advertisements simply means that the properties in question were designed by people who design buildings. Nor does the Committee accept that a licensee who confuses the words "architect" and "architecture" is somehow absolved from professional responsibility for doing so.

4.7. First, some historical background to give this issue its proper context.

4.8. The Committee notes that in July 2009 (shortly before the Act came into force) the Real Estate Institute of New Zealand Inc. (REINZ) advised its members in its journal "RE" that "architects" could be identified on-line.

4.9. The article, titled "Architects Identified On-line" begins by referencing the NZRAB website, so that

"a person described in marketing or advertising material as an ‘architect’ actually has the right to do

so".

4.10. The article refers to the fact that some real estate agents had come under fire from the Board for inaccurately naming a person as the architect that designed the house being sold "when in reality, the person named isn’t, or wasn’t an architect".

4.11. The article stated that the Board was concerned that such advertising misled potential buyers; and suggested that it threatened the interests of architects and that it degraded the "brand". The chairman of the Board was quoted as saying that claiming a property was designed by an architect could push up its price or create a false expectation about quality which was unfair on buyers.

4.12. The article stated that the problem of not being able to work out whether designers' names on plans or in council records were or were not the names of architects was resolved by the new website, which had a "find a former architect" facility, as well as listing all current architects.

4.13. As a result, real estate agents, writers of advertising copy, newspapers and potential buyers could now quickly check if a person whose name was on a building's plans or in the council records is or was an architect.

4.14. Mr Elford, the REINZ president, said in the article that he was sure the website would go a long way towards educating people as to who could be described as an architect, or when a building could be described as architecturally designed. He encouraged members to make use of the website.

4.15. Judging by the volume of complaints to be considered by this Committee, Mr Elford's optimism was somewhat misplaced.

4.16. In May 2010, the REINZ published a feature article by Mr Jackman in its journal. The title of the article was "Was the architect an architect?"

4.17. The article referred to the "deep frustration" felt by architects at real estate advertisements claiming properties for sale were designed by architects when actually the person named was not an architect at all. It referred to the fact that about 5% of New Zealand's residential properties were designed by architects, the rest being designed by others, sometimes called architectural designers, who either were trained in drafting, or were self-taught.

4.18. Referring to rule 6.4 and relevant provisions under the Registered Architects Act, Mr Jackman suggested that real estate agents needed to check before placing advertising claiming that a named person was an architect. Mr Jackman referred to the website, and the ability to check current and former architects.

4.19. He warned that real estate agents should take the matter seriously, because the Board had laid complaints with the Advertising Standards Authority, and the Commerce Commission. He said that the Authority was also investigating a breach.

4.20. He made it clear that the Board would lay further complaints whenever more breaches were detected.

4.21. In September 2010, Complaints Assessment Committee 10040 found a licensee, Robert Mosen, guilty of unsatisfactory conduct for describing a property as "architect designed" when it was not. The decision received widespread print and voice media coverage.

4.22. In March 2011, the REINZ published in its journal "the Hub" an e-mail dated 17 February 2011 from Angela Sutton, Advisory Services Manager of the REINZ. In light of media publicity the previous day, advice was offered to members on the use of the words "architect" and "registered architect" in any advertising. The e-mail stated that prohibitions on the use of the words "architect" and "registered architect" extended to the misuse of those terms in marketing and advertising material. Ms Sutton referred to the July 2009 article published in the Journal, which touched on the issue and set out the position quite clearly. The full text of the July 2009 article was attached to a link.

Ms Sutton concluded by saying:

"In the meantime if you are intending to describe the building in terms involving use of the word "architect" in any form, we strongly recommend that you first check that the designer of the building is named on the NZRAB register—see the link above."

4.23. The Committee considers the purpose of the Act is highly relevant to this issue.

4.24. As section 3 of the Act makes clear, the purpose of the Act is to promote and protect the interests of consumers in respect of transactions that relate to real estate, and to promote public confidence in the performance of real estate agency work.

4.25. In Neumegen v Neumegen & Co [1998] 3 NZLR 310; (1998) 8 TCLR 299 (CA), a Fair Trading Act (FTA)

1986 case involving a consideration of section 9 FTA (which provides that “No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.), the Court of Appeal said, at p 317; p 306:

“However, in our view, if the number of affected members of the public is or will be very small and the impact upon those persons is or will be minimal a Court may be justified in taking the view that, looked at in the round, the conduct of the defendant is not properly to be characterised as deceptive or misleading or that, even if it has to be so characterised, what has occurred or is likely to occur is so lacking in real importance to any consumers who may be affected that the Court's discretion may fairly be exercised against the granting of a remedy.”

4.26. What would a hypothetical consumer make of an advertisement describing a home (with an asking price of $1.35 million) as designed by an award-winning architect? Or a home with an asking price of $960,000 as innovatively designed by a named architect?

4.27. The Committee considers that consumers in the class of people who would be looking at purchasing such homes would consider the use of the word "architect" in the advertisement meant something different from a home that had been designed by a builder or draughts person.

4.28. Such a consumer might not have the precise terminology of the Registered Architects Act in his or her mind, but the consumer would be likely to regard the word "architect" as constituting a point of distinction from a house designed, for instance, by a builder or by a draughts person.

4.29. The Committee does not consider that the number of affected members of the class would be so small, or the impact on them so minimal, as to mean that the conduct of the Licensee in this case could not be properly characterised as "misleading".

4.30. The Committee agrees with the Complainant: the fact that the Licensee describes Mr Jessop as an "award winning architect" indicates that the Licensee sees this as adding lustre and therefore market value to the property.

4.31. We also agree with what the chairman of the Board said in the July 2009 article published by the REINZ: claiming a property was designed by an architect could push up its price or create a false expectation about quality which was unfair on buyers.

4.32. If the use of the word architect has no value, as some licensees suggest in response to complaints by Mr Jackman, then why bother to use the word "architect" in the advertisement? Advertisements often use puffery but the Committee does not consider that the use of the word "architect" could possibly be described as advertising "puffery".

4.33. The Committee considers that it would be contrary to the consumer protection purpose of the Act to allow properties to be advertised as "architect designed", when the design of such properties had nothing to do with work done by an architect.

4.34. Provided the home was "award-winning", the Licensee could properly have described it as an "award-winning Noel Jessop designed home". But the Licensee chose to insert the word "architect" into the advertisement. Similarly, the house designed by Mr Price could have been described as designed by the well-known designer, Mr Price.

4.35. The Licensee was not told by the seller that the property was designed by Noel Jessop, architect.

4.36. The Committee notes that the Licensee says he had previously visited Mr Jessop's website (which refers to "Noel Jessop Architecture"). The error in that advertisement was the Licensee's own error.

4.37. The seller of the Price designed house said that Mr Price was an architect. To be fair to the Licensee, he states that he tried to check that this was correct. He did not manage to find out whether or not Mr Price was indeed an architect. He ran the advertisement regardless.

4.38. The Committee considers that the wording of the advertisement was therefore entirely the

Licensee's responsibility.

4.39. Had the Licensee checked the NZRAB website, he would have discovered that Mr Jessop and Mr

Price were not, and had never been, architects.

4.40. This Committee has considered the number of complaints by Mr Jackman. Some Licensees argue that customers are not influenced by who designed a property, they are influenced by whether or not they like the house that they visit. In effect they say that customers are not in fact misled by the wording used in this advertisement.

4.41. In a professional conduct context, where the Committee is considering whether or not a licensee is guilty of unsatisfactory conduct (or worse), the Committee does not consider whether a customer is

in fact misled is relevant to the issue of liability. It may or may not be relevant to mitigation and penalty, if the licensee is able to show that nobody was in fact misled by the conduct in issue.

4.42. This issue arose in Complaints Committee No 1 of the Auckland District Law Society v P 18 PRNZ

760, where Duffy J was dealing with an application to allow fresh evidence to be introduced on an appeal. The prosecutor wanted to adduce fresh evidence that showed that a third party bank was in fact misled by solicitor's certificates. The judge considered that the new evidence was neither cogent nor material. Whether or not the victim of alleged misleading conduct was in fact misled did not go to the nature of the offence itself, but rather to the gravity of the offending, the judge found. At page 762, her Honour said:

"The extent to which misleading conduct achieves its intended effect cannot be relevant to whether the conduct justifies being categorised as professional misconduct."

We adopt that reasoning in this case.

4.43. Whether or not the complaint to the Authority is by a client or by a customer is also irrelevant to the Committee's consideration of whether the conduct by the licensee breaches the provisions of the Act. Any person may complain to the Authority about the conduct of a licensee: section 74(1). The Authority must refer any such complaint to a Committee: section 74(2). The function of each such Committee is to inquire into and investigate complaints made under section 74: section 78(a). Significantly, on its own initiative, a Committee may inquire into and investigate allegations about any licensee: section 78(b).

4.44. The Committee notes a submission by the REINZ suggesting that the Board has no power or capacity to lodge this complaint. Even if the Board lacked jurisdiction to lodge this complaint (which the Committee doubts), the Committee would have continued to investigate the complaint received from the Board under its section 78(b) powers. The Committee therefore rejects the REINZ submission.

4.45. The Licensee says that the advertisement was not altered until he was contacted by Mr Jessop in person. But the REINZ had been telling its members that this was a real issue since at least July

2009. There was a follow-up article in May 2010, just after the Licensee placed the first

advertisement.

4.46. The second advertisement was placed after the media coverage about the Mosen decision. A

competent real estate agent ought to have been aware of this issue in September 2010.

4.47. Indeed, from the steps taken by the Licensee to check whether or not Mr Jessop and Mr Price were in fact architects, we assume that the Licensee was aware of the difference between an architect and a draughts person. If he was not certain whether they were architects, he should not have run the advertisements.

4.48. The Committee wishes to make it clear that it does not consider there is any evidence that suggests an intention by the Licensee to intentionally mislead members of the public. However, the Committee notes that conduct under section 9 of the Fair Trading Act 1986 may be misleading, despite the absence of any element of intention: Bonz Group Pty Ltd v Cooke [1996] NZCA 301; (1996) 7 TCLR 206,

213 (CA).

4.49. The Court of Appeal decision is a helpful one. The Committee considers that a Licensee's conduct may similarly breach the provisions of the Act, despite the absence of any element of intention. The submission by the REINZ that section 72 of the Act, and/or rule 6.4 of the Client Care Rules contemplate situations where a Licensee has acted knowingly, recklessly or negligently—but not innocently—is rejected.

4.50. The Committee considers that the Licensee ought to have been aware of this issue, and of the availability of the NZRAB register, which he could easily have accessed to check whether or not Mr Jessop and Mr Price were in fact "architects".

4.51. The REINZ, in its submission, suggests that the Board ought to focus on educating the public by legitimate and constructive means rather than by using another industry's complaints body to "educate" through negative and unjustifiably punitive disciplinary steps. The Committee does not agree with that submission. It may well be that the REINZ and the Board have a role in educating the public about this issue. But that does not mean that the Committee is either absolved or prevented from investigating a complaint about the professional conduct of a Licensee because there might be another way of doing things.

4.52. The REINZ states that the existence of the NZRAB website and guidelines on the use of the word "architect" are not included in the curriculum of the National Diploma of Real Estate which an individual is now required to obtain to become a licensed real estate agent. That is a matter that the Committee hopes will be rectified by the industry. But again, the Committee does not consider this of itself absolves a Licensee from a finding of, for instance, unsatisfactory conduct.

5. Conclusion

5.1. Unsatisfactory conduct which attracts professional discipline, even at the lower end of the scale, must be conduct which departs from acceptable professional standards. That departure must be significant enough to attract sanction for the purposes of protecting the public. A finding of "unsatisfactory conduct" is not required in every case, even where error is shown. The question is not whether error was made, but whether the conduct in question was an acceptable discharge of professional obligations.

5.2. In terms of section 72(a) of the Act, does the conduct of the Licensee fall short of the standard of conduct that a reasonable member of the public would expect from a reasonably competent licensee? In this case, the Committee considers that the answer to that question is "yes".

5.3. The Committee notes that it would have come to the same conclusion whether or not the Licensee was aware of the July 2009 and May 2010 articles by the REINZ.

5.4. In terms of section 72(b), does the conduct contravene any rules made under the Act? Again, the Committee considers that the answer is "yes", for the reasons set out in the previous section of this decision.

5.5. The advertisement is misleading; and it also provides "false information" about the status of the person who designed each of the homes. That is a breach of rule 6.4.

5.6. The Committee also considers that this is conduct which is likely to bring the industry into disrepute, a breach of rule 6.3.

5.7. The issue has been a live one since at least July 2009, when the REINZ told its members how to check whether or not people were architects, or former architects. The REINZ wrote about the issue again in May 2010.

5.8. The issue is not a complicated one and where a licensee is unable to ascertain, by whatever means, whether or not a person is or has been an architect, they have an easy choice, do not run an advertisement describing a home as designed by an "architect".

5.9. Is there a breach of rule 6.2? The Committee has no evidence that the Licensee was aware, when the advertisement was published, that Mr Jessop was not an architect. Quite the contrary, he

believed that Mr Jessop was an architect. He also considered that Mr Price was an architect, based on the advice he had received from the seller. There is no breach of rule 6.2.

5.10. The Committee does not consider that there is any evidence suggesting the Licensee is either incompetent or has acted negligently. There is no breach of section 72(c) of the Act.

5.11. That leaves section 72(d). A licensee is guilty of unsatisfactory conduct if the licensee carries out real estate agency work that would reasonably be regarded by agents of good standing as being unacceptable. The Committee considers that agents of good standing would regard an advertisement stating that a property was designed by an architect, when it was not, as "unacceptable”, even where there had been a failed attempt to check the credentials of the person described as an architect.

5.12. The Licensee had an obligation to ensure the advertisement was accurate. It was not. A breach of section 72(d) of the Act has also been established.

6. Decision

6.1. After conducting an inquiry into the complaint, pursuant to section 89(1) of the Act, the Committee held a hearing with regard to that complaint. In accordance with section 90(1) of the Act, the Committee conducted the hearing on the papers, and pursuant to section 90(2) the Committee’s determination was made on the basis of the written material before it.

6.2. The Committee has determined under section 89(2)(b) of the Act that it has been proved, on the balance of probabilities, that the Licensee has engaged in unsatisfactory conduct.

7. Orders

7.1. The Committee will conduct a separate hearing on the papers to decide what orders, if any, should be made under section 93 of the Act.

Section 93 provides:

93 Power of Committee to make orders

(1) If a Committee makes a determination under section 89(2)(b), the Committee may do 1 or more of the following:

(a) make an order censuring or reprimanding the licensee:

(b) order that all or some of the terms of an agreed settlement between the licensee and the complainant are to have effect, by consent, as all or part of a final determination of the complaint:

(c) order that the licensee apologise to the complainant: (d) order that the licensee undergo training or education:

(e) order the licensee to reduce, cancel, or refund fees charged for work where that work is the subject of the complaint:

(f) order the licensee—

(i) to rectify, at his or her or its own expense, any error or omission; or

(ii) where it is not practicable to rectify the error or omission, to take steps to provide, at his or her or its own expense, relief, in whole or in part, from the consequences of the error or omission:

(g) order the licensee to pay to the Authority a fine not exceeding $10,000 in the case of an individual or $20,000 in the case of a company:

(h) order the licensee, or the agent for whom the person complained about works, to make his or her business available for inspection or take advice in relation to management from persons specified in the order:

(i) order the licensee to pay the complainant any costs or expenses incurred in respect of the inquiry, investigation, or hearing by the Committee.

(2) An order under this section may be made on and subject to any terms and conditions that

the Committee thinks fit.

7.2. The Committee requires the investigator authorised to assist the Committee with its inquiry to obtain a record of any previous disciplinary decision in respect of the Licensee under either the Real Estate Agents Act 1976 or the Act, if any such decision exists, and provide it to the Committee and the Licensee and the Complainant.

7.3. The Licensee and the Complainant may file submissions on what orders, if any should be made.

7.4. The Complainant may file submissions within 5 working days from the date of the decision. These submissions, if any, will then be provided to the Licensee, with a timeframe for filing final submissions.

8. Publication

8.1. One of the Committee’s functions pursuant to section 78(h) of the Act is to publish its decisions.

8.2. The Committee directs full publication of its decision.

8.3. Publication is deferred for 20 working days from the date of notice of this determination, to enable the licensee or the complainant to exercise any appeal rights under section 111 of the Act.

9. Right of Appeal

9.1. A person affected by a determination of a Committee may appeal by way of written notice to the Real Estate Agents Disciplinary Tribunal (the Tribunal) against a determination of the Committee and must do so within 20 working days from the date of the determination.

9.2. Appeal is by way of written notice to the Tribunal. Further information on lodging an appeal is available by referring to the Guide to Lodging an Appeal at www.justice.govt.nz/tribunals.

Signed

Paul Morten

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 2 June 2011