Sy - Complaint No CB6117491 [2013] NZREAA 11 (24 January 2013)

Last Updated: 15 February 2014

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

And

In the Matter of Complaint No: CB6117491

In the Matter of Brendon Sy

Licence Number: 10002028

Decision of Complaints Assessment Committee

Dated this 24th day of January 2013

Complaints Assessment Committee: CAC20005

Chairperson: Stuart Rose

Deputy Chairperson: Chris Rogers

Panel Member: Denise Bovaird

Complaints Assessment Committee

Decision on Orders

1. Background

1.1 On 30 November 2012 the Committee determined under Section 89 (2) (b) of the Real Estate Agents Act 2008 (the Act) that it had been proved, on the balance of probabilities that the Licensee, Brendon Sy, had engaged in unsatisfactory conduct in terms of section 72(a) of the Act.

1.2 Parties to the complaint were given the opportunity to make submissions to the Committee on orders.

1.3 On 19 September 2012, the Committee received a submission on orders from the Complainants.

1.4 On 15 November 2012, the Committee received a submission on orders from the Licensee.

2. Relevant Provisions

2.1 Having made a finding of unsatisfactory conduct against Brendon Sy 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 In their submission, the Complainants have said ;

a) That they expected a finding of misconduct.

b) That what happened has put them under “undue duress” having to engage a lawyer

to correct the mistake.

c) That Mr Sy reimburse them $15,665.68 in legal fees.

d) That we should take steps to improve Mr Sy’s skills and knowledge.

3.2 In his submission on orders the Licensee said;

a) He has practised for over twenty years without a complaint. b) That there are some errors in the decision.

c) That he asked Licensee 2 to confirm with the purchasers re the GST. d) He didn’t avoid dealing with the issue.

e) He should not be completely responsible.

f) That he did his best to assist all parties on this issue.

4. Decision

4.1 The committee finds as follows:

4.2 Having regard to the facts of this case and the finding of unsatisfactory conduct in the Committee’s determination dated 29 June 2012, as well as the submissions on orders made by both parties and the principles set out in section 3 of the Act, the committee has determined to make the following orders pursuant to section 93(1) of the Act:

4.3 Licensee Brendon Sy is to be censured under section 93(1)(a) of the Act.

4.4 The Licensee shall pay a fine of $1,000 to the Real Estate Agents Authority within 20 working days of this order under section 93(1)(g) of the Act.

4.5 The Licensee shall reimburse the Complainant part of their legal costs being $7,500.00 within one month of this order.

4.6 Under the provisions of section 93(1)(d) of the Act, the Licensee shall within one month of this decision provide written confirmation of his enrolment in the following national unit standard course:

-US23135 Demonstrate knowledge of the law of contract and the law of agency.

In addition the licensee must provide written evidence to the Authority of having completed and passed that course within 12 months of this decision. The Licensee may choose any appropriate provider of the unit standard courses.

4.7 No other orders are considered appropriate.

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 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

Stuart Rose

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 24 January 2013