Company A - Complaint No CA4066581 [2011] NZREAA 297 (14 September 2011)

Last Updated: 4 August 2013

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

And

In the Matter of Complaint No: CA4066581

In the Matter of Company A

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 14th day of September 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 Mr C (the Complainant) has complained to the Real Estate Agents Authority (the Authority) about the conduct of Company A (the Licensee). The Licensee is currently licensed under the Real Estate Agents Act 2008 (the Act) as an Agent.

1.2 The complaint is about the conduct of the Licensee in that:

a. Contact with Mr L1, an Agent for the Licensee, regarding the Complainant’s complaint about

another agent, was totally ineffective and his advice was lacking and unprofessional.

b. Contact with Mr L2 was due to Mr L2’s error and the Complainant went from valued client to opponent which was most demoralising.

c. Contact with Mr L3 was the final straw as he was rude and curt. His blatant attempt to confine the Complainant’s effort for resolution of his issues with the Licensee re one of their agents by placing conditions on him was unacceptable.

1.3 The complaint was received by the Authority on 22 November 2010 and referred to a Complaints

Assessment Committee (the Committee). The Committee considered the complaint on 14

December 2010 and made a decision pursuant to section 79(1) of the Act to inquire into the complaint.

2. Material Facts

2.1 On 21 May 2010 the Complainant was mistakenly forwarded a Company A internal email by Mr L2, that was intended for Mr L1, stating “It makes one feel a little more confident when your opponent has to look up a book to find out what wrongs he has suffered”. The email was in response to an email sent by the Complainant to Mr L1 on the same date advising him that he was formalising complaints against another agent including the rules of the Act.

2.2 After sending the email Mr L2 called the Complainant to apologise for his error. The Complainant then informed Mr L2 of his complaint about the actions of the agent in that he had told the Complainant’s neighbour who then told the prospective purchaser that he would take significantly less. The Complainant alleged that this led to the new agency for the property being unable to achieve the full value of the property.

2.3 On 4 June 2010 Mr L2 sent an email to the Complainant with attachments of No Further Action decisions of the Committees in favour of Company A. The decisions included the names and personal details of the Complainants.

3. Relevant Provisions

Real Estate Agents Act 2008

3.1 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 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.

3.2 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.

4. Discussion

4.1 The Committee considered the complaint from the Complainant about the conduct of the Licensee and responses from the agents of the Licensee on this matter, and that of other complaints made. The complaints relating to Mr L1 and Mr L3 have been dealt with by the Committee in separate complaints where decisions of no further action were taken on the complaints.

4.2 Consideration of the Complaint

In the complaint against the Licensee, the Complainant corresponded in the most part with Mr L2. The Committee accepts that Mr L2 erroneously copied in the Complainant to an email in which he called him the “opponent”. In the Committee’s view this was a mistake and an unfortunate misuse of words. The Committee agrees however that Mr L2 rectified the error by providing a genuine apology to the Complainant.

The Committee found also that Mr L2 did send information not released to the public when the decisions were published. The Committee did not however find the letter from Mr L2 to the Complainant and forwarding the decisions to be “intimidating” as alleged by the Complainant. The Committee found that the actions taken by the Licensee were not of a level to be found to be unsatisfactory conduct.

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 met to consider the complaint and has determined, pursuant to section 89(2)(c) that the complaint alleges neither unsatisfactory conduct nor misconduct and dismisses it accordingly.

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 to 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 detail s of the Complainant (including the address of the property), the Licensee and their company, and any third parties in the publication of its decision.

6.4 The Authority will publish the Committee’s decision after the period for filing an appeal has ended. Any application for an order preventing publication must be made to the Real Estate Agents Disciplinary Tribunal (the Tribunal).

7. Right of Appeal

7.1 A person affected by a determination of a Committee may appeal to the 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 this 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: 14 September 2011