Cooper - Complaint No CA4057266 [2011] NZREAA 407 (19 December 2011)

Last Updated: 15 December 2013

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

And

In the Matter of Complaint No: CA4057266

In the Matter of Martin Cooper

Licence Number: 10016917

Decision of Complaints Assessment Committee

Dated this 19th day of December 2011

Complaints Assessment Committee: CAC10043

Chairperson: Deirdre McNabb Deputy Chairperson: Sue Matahaere-Patten Panel Member: Barrie Barnes (not participating)

Complaints Assessment Committee

Decision on Orders

1. Background

1.1 On 3 October 2011 the Licensee Martin Cooper was found guilty of unsatisfactory conduct. Since that time the Committee has received notification from the Complainant that she does not wish to make any submissions regarding the penalty that is appropriate in the case. The Licensee wrote to the Committee explaining his position further and acknowledging that he had been in error. He noted the following matters in mitigation:

1.1.1 He had been motivated by a desire to assist the complainant’s husband with the emotional trauma of a marriage separation and was concerned about the personal safety of her husband,

1.1.2 He disgorged the funds improperly retained 4 days after the request for those funds were made so the funds were not improperly held for a significant length of time,

1.1.3 The error in description of the reason for the money being deducted from the deposit monies was inadvertent,

1.1.4 He accepts absolute responsibility for the actions complained of by the Complainant; and

1.1.5 He seeks suppression of the names of the parties to minimise any further stress on the

Complainant’s husband.

2. Relevant Provisions

2.1 Having made a finding of unsatisfactory conduct against Martin Cooper 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 sympathises with the motives of the Licensee given that he sought to help the Complainant’s husband at a very traumatic time. Nevertheless it notes that those motives should not distract the Licensee from his fundamental obligation to properly account for any funds that he retains during the course of his real estate agency work. Such funds are held by the Licensee in a fiduciary capacity and should not be dealt other than in accordance with the directions of those parties entitled to authorise their distribution. Particularly in the case of a marriage break up the Licensee should have been vigilant about the authority that he had for dealing with any funds received as a result of the settlement of the sale of the marital home. The position taken by the Licensee in this case was particularly important given that he is the managing director of the real estate company. In such a position of responsibility his behaviour is likely to influence those around him.

3.2 The Committee understands the Licensee’s desire to assist his friend and colleague during a time of trauma. Still it considers it necessary that he face the consequences of breaching a fundamental requirement to properly account for funds following a property settlement. Regardless of the circumstances surrounding a distribution of funds, they must not be disbursed except with the proper authority of the relevant parties.

4. Decision

4.1 The Committee orders the following:

4.2 That the Licensee attend the Real Estate Unit Standard Course 4700 – entitled Manage Trust Accounts in Real Estate firms such course to be attended and completed within 12 months of this decision being issued. In addition he must provide written evidence of having completed and passed that course to the Authority (section 93(1)(d)).

4.3 The Licensee is to pay a fine to the Authority of $2500 within one month of this order.

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 the Company he/she works for 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 Real Estate Agents

Disciplinary Tribunal (the Tribunal).

6. Right of Appeal

6.1 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.

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

Deirdre McNabb

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 19 December 2011