Complaint No C00423 [2013] NZREAA 115 (21 June 2013)

Last Updated: 3 May 2014

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

And

In the Matter of Complaint No: C00423

In the Matter of Agency

License Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 21st day of June 2013

Complaints Assessment Committee: CAC20007

Chairperson: Ann Skelton

Deputy Chairperson: Paul Biddington

Panel Member: Joan Harnett-Kindley

Complaints Assessment Committee

Decision finding no further action

1. The Complaint

1.1. The Complaints Assessment Committee (the Committee) was investigating another complaint (CB7104683 and CB7104827) when it decided to inquire into the supervision and management practices of the Agency.

1.2. The decision to inquire was pursuant to section 78(b) of the Real Estate Agents Act 2008 ( Act) and was made on 29 October 2012. Further evidence was gathered by the Real Estate Agents Authority (Authority) and considered by the Committee on 27 May 2013.

2. Material Facts

2.1. The Committee investigated the practices of the Agency as a result of a complaint made about two of the Licensees that worked for it. Those other complaints related to the Licensees allegedly not providing copies of the relevant Guides and various matters relating to not dealing with an elderly vendor who had hearing difficulties in an appropriate manner causing him stress and anxiety.

2.2. The Committee’s decision to investigate the processes and procedures of the Agency was to assess

the level of supervision and management of licensees under its control.

2.3. The Agency provided a thorough response to the Committee detailing the checks and procedures of the all transaction documentation produced by its licensees. The branch manager of the Agency also confirmed that it was Agency Policy to have a family member or witness present at negotiations when dealing with elderly or infirm Clients or Customers.

3. Relevant Provisions

3.1. A complaint can only be made in relation to alleged unsatisfactory conduct (section 72 of the Act) or alleged misconduct (section 73 of the Act).

3.2. Section 72 of the Act provides:

72 Unsatisfactory conduct

For the purposes of this Act, a licensee is guilty of unsatisfactory conduct if the licensee carries out real estate agency work that –

(a) falls short of the standard that a reasonable member of the public is entitled to expect from a reasonably competent licensee; or

(b) contravenes a provision of this Act or of any regulations or rules made under this Act; or

(c) is incompetent or negligent; or

(d) would reasonably be regarded by agents of good standing as being unacceptable.

3.3. Section 73 of the Act provides:

73 Misconduct

For the purposes of this Act, a licensee is guilty of misconduct if the licensee’s conduct –

(a) would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful; or

(b) constitutes seriously incompetent or seriously negligent real estate agency work; or

(c) consists of a willful or reckless contravention of —

(i) this Act; or

(ii) other Acts that apply to the conduct of licensees; or

(iii) regulations or rules made under this Act; or

(d) constitutes an offence for which the licensee has been convicted, being an offence that

reflects adversely on the licensee’s fitness to be a licensee.

50 Salespersons must be supervised

(1) A salesperson must, in carrying out any agency work, be properly supervised and managed by an agent or a branch manager.

(2) In this section properly supervised and managed means that the agency work is carried out under such direction and control of either a branch manager or an agent as is sufficient to ensure—

(a) that the work is performed competently; and

(b) that the work complies with the requirements of this Act .

4. Discussion

4.1. The Committee is satisfied that the supervision and management practices of the Agency are sufficient to ensure that the real estate agency work is performe d competently and complies with the requirements of the Act. The Agency was diligent in its assistance of the Authority in investigating this matter, which is to be commended.

5. Decision

5.1. The Committee met and pursuant to section 78(b) determined to inquire into it.

5.2. In accordance with section 90(1) of the Act, the Committee conducted the hearing on the papers, and pursuant to section 90(2) the Committee’s determination was made on the basis of the written material before it.

5.3. The Committee has determined under section 89(2)(c) of the Act to take no further action with regard to the complaint or any issue involved in the complaint .

6. Publication

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

6.2. 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 standard s and that it is in the public interest that the decision be published.

6.3. The Committee directs publication of its decision, but omitting the names and identifying details of the Agency in the publication of its decision.

6.4. The Authority will publish the Committee’s decision after the appeal period has ended. Any

application for an order preventing publication must be made to the Disciplinary Tribunal.

7. Right of Appeal

7.1. 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.

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

Appeal.

7.3. Further information on lodging an appeal is available by referring to the Guide to Lodging an Appeal

at www.justice.govt.nz/tribunals.

Signed

Ann Skelton

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 21 June 2013