Cho - Complaint No CA5240181 [2011] NZREAA 361 (4 November 2011)

Last Updated: 13 December 2013

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

And

In the Matter of Complaint No: CA5240181

In the Matter of Dong (John) Cho

License Number: 10010325

Decision of Complaints Assessment Committee

Dated this 4th day of November 2011

Complaints Assessment Committee: CAC10048

Chairperson: Debbie van Zyl

Deputy Chairperson: Rob Crozier (not participating) Panel Member: Denise Bovaird

Complaints Assessment Committee

Decision on Orders

1. Background

1.1 By its decision dated 22 August 2011 the Complaints Assessment Committee (the Committee) made a determination under section 89(2)(b) of the Real Estate Agents Act 2008 (the Act) that the licensee, Don (John) Cho (the Licensee), of Barfoot & Thompson Limited (Auckland City), has engaged in unsatisfactory conduct as that term is defined in section 72 of the Act.

1.2 The Committee invited both Ms C (the Complainant) and the Licensee to make any comments or submissions on what orders, if any should be made.

1.3 The Complainant made a lengthy submission of which almost the entire contents dealt with either denials of or disputing the Committee’s findings in the 22 August 2011 decision. Those parts of the submission will necessarily have to be ignored in this decision as this is not an appeal and is therefore not the correct forum to address those issues. In her submission the Complainant stated that according to her, both Mr S and the Licensee violated confidentiality and privacy. She requested the following orders to be made:

 the Licensee to make an apology;

 for the Licensee to undergo training/education;

 for the Complainant’s legal fees with Mr S to be paid by the Licensee;

 for Mr Cho to pay her $50,000;

 the Licensee to pay a fine of $10,000 to the Authority;

 order Barfoot & Thompson Limited (BTL) of Auckland City to make its business available for inspection and lastly;

 to order the Licensee to pay the Complainant’s costs or expenses incurred in respect of the

inquiry or investigation.

1.4 The Licensee made a lengthy submission through his Counsel that:

 The determination of unsatisfactory conduct is, in itself, a sufficient penalty.

 Barfoot & Thompson’s standard form agency agreement makes provision of an estimated

price which was completed.

 There is no definition of “appraisal” in the Act or the Real Estate Agents Act (Professional

Conduct and Client Care) Rules 2009 (Rules or Rule) and therefore there is no requirement that a written appraisal must be a self-contained document.

 It was acknowledged that by stating “over $700,000” in the agency agreement may not be

best practice.

 In the submission the relevant principles on penalty decisions was fully analysed and it was recommended that to be consistent the appropriate penalty to be imposed on the Licensee ought to be less than the order of censure.

 Mitigating factors are that there is no disciplinary history for the Licensee, the conduct was a “one off” isolated incident and not a series of transactions. It was further unintentional and there was no question of any pre-meditation or financial motivation for the Licensee.

 Character references were supplied in favour of the Licensee.

1.5 The Case Manager advised the Licensee has no previous disciplinary history with either the Real

Estate Agents Authority (Authority) or the Real Estate Agents Licensing Board (the Board).

2. Relevant Provisions

2.1. Having made a finding of unsatisfactory conduct against the Committee must now 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.

3. Discussion

3.1 The Committee has carefully considered the Complainant’s submission and as stated will have to ignore everything in the submission that revisited the decision made, as this is not an appeal and therefore not the right forum to address those issues.

3.2 The Committee disagrees with the scale of the orders requested by the Complainant. The Committee accepts that a penalty in a professional disciplinary case is primarily about the maintenance of standards and the protection of the public. However in the Committee's view there is also an element of punishment and it is important for the punishment to be proportionate to the offending. In the Committee’s view the Licensee’s conduct falls at the lowest end of the scale in terms of unsatisfactory conduct.

3.3 The Committee also disagrees with the Licensee’s Counsel’s contention that a completed agency agreement constitutes an appraisal. Rule 9.5 of the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009 clearly states: “An appraisal of land or a business must be provided in writing to a client by a licensee; must realistically reflect current market conditions; and must be supported by comparable information on sales of similar land in similar locations or businesses.”

4. Decision

4.1 Having regard to the facts of this case as in the Committee’s determination dated 22 August 2011, both the Complainant’s and Licensee’s submissions and the established unsatisfactory conduct as well as the functions which the imposing of a penalty is designed to serve, the Committee has determined to make no further penalty order apart from the unsatisfactory decision which in itself is deemed as enough of a deterrent in this case.

5. Publication

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

5.2 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.

5.3 The Committee directs publication of its decision, but omitting the names and identifying details of the Complainant (including the address of the property), and any third parties in the publication of its decision. The name of the Licensee and his company should be published.

5.4 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 Disciplinary Tribunal.

6. Right of Appeal

6.1 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.

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

6.3 Further information on filing an appeal is available by referring to the Guide to Filing an Appeal at www.justice.govt.nz/tribunals.

Signed

Debbie van Zyl

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 4 November 2011