Parkinson - Complaint No CB5488094 [2012] NZREAA 105 (23 April 2012)

Last Updated: 3 January 2014

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

And

In the Matter of Complaint No: CB5488094

In the Matter of Susan Parkinson

Licence Number: 10012230

Decision of Complaints Assessment Committee

Dated this 23rd day of April 2012

Complaints Assessment Committee: CAC20001

Chairperson: Dean O’Leary Deputy Chairperson: Graham Rossiter Panel Member: Joan Harnett-Kindley

Complaints Assessment Committee

Decision on Orders

1. Background

1.1. In and by a decision of this Committee dated 15 February 2012, it was found that Susan Parkinson had failed to obtain a title search or take any other steps to verify the title of a property in respect of which the Complainant had submitted an offer before drawing an agreement for sale and purchase.

1.2. Ms Parkinson was, by virtue of her omissions in this regard, guilty of ‘unsatisfactory conduct’ contrary to section 72(a) of the Real Estate Agents Act 2008 and rule 5.1 of the Real Estate Agents (Professional Conduct and Client Care) Rules 2009. Other aspects of the complaint against Ms Parkinson, including with respect to the submission of a ‘back-up’ offer to the vendor were not upheld.

2. Relevant Provisions

2.1. Having made a finding of unsatisfactory conduct against Susan Parkinson 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. Any determination as to what orders, if any, should be made following, as in this case, a finding of unsatisfactory conduct, must, as a starting point, be in terms of and with reference to the basic objects and purposes of this Committee’s empowering statute, ie the Real Estate Agents Act 2008 (‘the Act’). These are set out in s.3 of the Act and are 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.” Thus, it follows that the Act is all about a) consumer protection and b) the maintenance of industry standards.

3.2. Submissions have been received from both the Complainant and on behalf of the licensee. Nothing has been received from Ms Parkinson herself. This decision is to be read together with that simultaneously issued as to orders on the finding of unsatisfactory conduct against Ms Parkinson’s principal, Eves Realty. The Complainant’s submission is, to a significant extent, directed at those aspects of her complaint that have not been upheld by this committee. The Complainant goes on to suggest that the “position Ms Parkinson placed (her) in, caused (her) great distress.” In addition, the Complainant says that she seeks financial reimbursement from Eves Realty to the value of $1400.00 “which is the difference between what was charged in legal fees and what (the Complainant) would have ordinarily paid for this transaction without the hassles.” This last mentioned point will be addressed in our decision on orders with respect to Eves Realty.

3.3. The submission on behalf of Ms Parkinson refers to the licensee as being “a career real estate salesperson and a valued member of the Eves team.” She is said to have been “since this event ... very stressed and is devastated that she has been found guilty of unsatisfactory conduct given the particular circumstances surrounding the origins of the complaint.” (our italics) The foregoing is noted although we frankly have no idea what the words italicized are supposed to mean. We note that, as stated above, nothing has been received from the licensee herself and we have, therefore, no sense of the presence of any acknowledgement of error or insight by Ms Parkinson. We note in this regard (and as previously recorded) that Ms Parkinson’s references in her previous submission to “mountains and molehills” with reference to the content of the complaint was at the very lest unhelpful.

3.4. A case in which no order by way of penalty will be made, even a censure or reprimand, will be quite rare and exceptional. We are satisfied that this is one of those cases. The Committee makes no order by way of penalty ie beyond the adverse finding already made of ‘unsatisfactory conduct’ for

2 reasons. Firstly, there have been no adverse consequences for the Complainant from the omission to obtain a title search, beyond possibly some increased legal costs for the Complainant. (This aspect will be addressed in the separate but related decision on orders with respect to Eves Realty). Secondly, the licensee was, we accept, simply following her company policy in not obtaining a titl e search. The Committee presumes and expects that Ms Parkinson’s procedures of relevance, as a practising real estate salesperson, have now changed.

3.5. We cannot leave this matter without commenting on the assertion on behalf of Ms Parkinson (and her principal) that the obtaining of a title search by a listing agent was not, until a recent decision of the Real Estate Agents Disciplinary Tribunal, an expected industry standard or practice. That submission is not accepted and, indeed it is rejected. Amongst other things, we bear in mind that the issue of the relative Tribunal decision was preceded by a determination of another Authority complaints assessment committee which made exactly the same finding ie that a listing agent is expected to take adequate steps to check and verify legal title to a subject property and that will normally mean the obtaining of a title search.

4. Decision

4.1 The Committee makes no order by way of penalty.

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 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 unless an application for an order preventing publication has been made to the Real Estate Agents Disciplinary Tribunal (Tribunal). Such an application can only be made as part of an appeal to that Tribunal. In order to ensure publication of the decision does not take place it is important that you serve a copy of your application on the Authority. Publication of the decision will not take place until the Tribunal has made a decision on the application.

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

Graham Rossiter

Deputy Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 23 April 2012