Kinchella - Complaint No CA5228184 [2012] NZREAA 90 (4 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: CA5228184

In the Matter of Pearse Kinchella

Licence Number: 10015145

Decision of Complaints Assessment Committee

Dated this 4th day of April 2012

Complaints Assessment Committee: CAC100072

Chairperson: Michael Vallant

Deputy Chairperson: Sue Mataharere-Patten

Panel Member: Joan Harnett-Kindley

Complaints Assessment Committee

Decision on Orders

1. Background

1.1 The Complaints Assessment Committee (the Committee) has found Pearse Kinchella (the Licensee)

guilty of unsatisfactory conduct.

1.2 The Committee has received submissions from both the Complainant and the Licensee and will outline those submissions later in the decision.

2. Relevant Provision

2.1 Having made a finding of unsatisfactory conduct against Pearse Kinchella, the Committee must now decide what orders, if any, should be made under s93 of the Act.

Section 93 provides:

“93 Power of Committee to make orders

(1) If a Committee makes a determination under s89(2)(b), the Committee may do one 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 Complainant in her submission is seeking the following orders against the Licensee: (a) That the Licensee undergo a full basic training course;

(b) That he should provide a written apology to the Complainant;

(c) That he should pay the Complainant's legal costs in this matter; and

(d) That he should pay $5,000 being the Complainant’s losses on the final sale of the property

(the Property).

3.2 The Licensee for his part has made extensive submissions relating to the facts of the case and attempting to re-litigate the case and point out the Committee's error in its decision.

A small portion of the Licensee's submissions entitled 'In Summary' essentially states that he is a hard working agent, working over 350 days a year and that this matter has been a dreadful experience to both himself and his family, but little else which is of assistance to the Committee in assessing penalty.

3.3. In dealing with the orders sought by the Complainant the Committee's view is as follows:

3.3.1 It is noted in the Committee's earlier decision that the actions of the Licensee have demonstrated an extremely poor understanding of basic contractual requirements when preparing the sale and purchase agreement, signing of the agreement and amendments to the agreement.

3.3.2 Further, the Licensee is of a view that it is not necessary to obtain a search of the property prior to completing a sale and purchase agreement. The Licensee states in his submissions “there is no provision under law for a real estate agent to conduct a title search. I have been selling real estate for over a decade in the area and I can tell you that no company in the city performs title searches upon listing a property”.

The Committee finds this an extraordinary comment and certainly believes that the failure to obtain a title search falls short of the standard that a reasonable member of the public is entitled to expect from a reasonably competent Licensee. If this is the general practice in the area (which the Committee doubts) then factual situations that arose in this case will continue to do so and Licensees can expect to find themselves before Complaints Assessment Committees.

Accordingly, the Committee accepts that the Licensee should have further training.

3.3.3 The Complainant seeks an apology from the Licensee. In view of the fact that the parties appear to be extremely distrusting of each other and certainly there is no goodwill between

the Complainant and Licensee, the Committee sees little merit in requiring a written apology to be given.

3.3.4 The Complainant has sought reimbursement of her legal costs in this matter. The

Committee's view is that this is not an appropriate case where costs should be ordered.

Further the Complainant has failed to provide the Committee with any evidence as to what those costs are. It is not for the Committee to guess or estimate what the costs are, even if it was inclined to give costs in this matter.

3.3.5 The Complainant finally seeks $5,000 compensation for the difference between the sale price in the agreement that the Licensee prepared for the Property being $500,000 and the final sale price which was achieved being $495,000. The Licensee quite rightly points out that when the Property was listed with another agency it was only listed for $500,000. It could therefore not realistically be expected to achieve a $500,000 sale price. Also, it is in the hands of the Complainant as to what price was accepted and totally beyond the control of the Licensee.

3.4 In dealing with the Licensee’s submissions, the Committee has already noted that they are substantially based around attempting to re-litigate the Committee’s decision. The Committee notes the tendency by Licensees against whom findings of unsatisfactory conduct have been made to challenge those findings in the submissions on penalty. Licensees have appeal rights. The proper place for a challenge to the findings is by appeal to the Real Estate Disciplinary Tribunal. The Committee therefore puts to one side this aspect of the Licensee’s submissions.

3.4.1 A further submission by the Licensee is that the Committee should have made further enquiry or investigation. With the greatest respect to the Licensee, it is for him to provide all relevant information to the Committee, and he has had ample opportunity to do so. His failure to provide the relevant information is a failing on his part and not the Committee.

3.4.2 The only relevant submission that the Licensee makes is that he feels a reprimand regarding the listing form would be appropriate. Unfortunately, this once again identifies the Licensee’s failure to accept his failings and deficiencies in this matter.

4. Decision

4.1 The Committee orders the following:

1. That the Licensee be censured for his conduct (s93(1)(a)); and

2. That within the next 12 months the Licensee must register to and attend an on-site course to complete from the NCRE (Salesperson) course “Demonstrate Knowledge of Contract and the Law Of Agency”; and

3. That within one month of this order the Licensee must provide written confirmation of his enrolment in this course to the Authority. In addition, he must provide evidence of having completed the course to the Authority (s93(1)(d)) within one month of having completed the course; and

4. That the Licensee pay to the Authority a fine of $1,000 (s93(1)(g)).

5. Publication

5.1 One of the Committee’s functions pursuant to s78(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

Michael Vallant

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 4 April 2012