Complaint No C00626 [2013] NZREAA 132 (11 July 2013)

Last Updated: 4 May 2014

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

And

In the Matter of Complaint No: C00626

In the Matter of Licensee

License Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 11th day of July 2013

Complaints Assessment Committee: CAC20003

Chairperson: Marina Neylon Deputy Chairperson: Alison Wallis Panel Member: John Auld

Complaints Assessment Committee

Decision finding no further action

1. The Complaint

1.1. This is a complaint against the Licensee who is Principal Officer of an Agency.

1.2. The complaint is in relation to the Licensee’s conduct at the home of Mr and Mrs K (the Owners) at their Property. The Complainant was present at the Property and reports that the Licensee barged into the address and upset the Owners, who were about to list their property with him.

2. Material Facts

2.1. The incident at the Property occurred on 7 February 2013 at approximately 6.45 pm. The Complainant was at the Property to discuss listing it for sale with the Owners when the Licensee arrived.

2.2. A disagreement between the Complainant and the Licensee took place. The Complainant has alleged the Owners became very disturbed about this and that the conduct constitutes misconduct on the part of the Licensee.

3. Relevant Provisions

3.1 The Real Estate Agents Act 2008

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.

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.

Professional Conduct and Client Care Rules 2009

These Rules have recently been updated but were the Rules that applied at the time of the conduct.

6.3 A Licensee must not engage in any conduct likely to bring the industry into disrepute.

7.3 A licensee must not use, or threaten to use, the complaints or disciplinary process for an improper purpose

4. Discussion

4.1. The Committee has considered the Complainants version of events, which are as follows; the Complainant was at the Property at 6.45pm to obtain a listing for his company. While in discussion with the Owners, the Licensee arrived at the front door. The Complainant states that when the Owners realised who was at the door they asked the Complainant to answer the door and ask the Licensee to leave.

4.2. The Complainant states that he told the Licensee that the Owners were in a meeting and wanted her to leave the Property. The Licensee allegedly then refused to leave and pushed past the Complainant. According to the Complainant, Mr K then shouted at the Licensee that she was uninvited and if she did not leave he would call the Police. The Licensee then “turned in a threatening way to say something to the owner and then turned back and said ‘no problem’ and left”.

4.3. The Committee received a response to these serious allegations from the Licensee. Her version of events is quite different. The Licensee states that she had been discussing listing the Property with the Owners at 12.35pm that day. During a return visit at 6pm the Licensee states that the Owners felt pressured by the Complainant and would have preferred to list their property with both companies. The Licensee states that the Owners invited her to attend the meeting with the Complainant. She duly arrived at around 7pm and the door was answered by the Complainant who told her to “get off the property”. When Mr K came to the door and asked her to leave – she did.

4.4. The Committee has also heard from the Owners. Their response is as follows “We are both sorry but we do not wish to make any comment or get involved in the childish, bickering antics of BOTH agents who obviously have a tit for tat personal grievance issue with each other. We do not have a problem with either of these agents so do not wish to be included in any way wi th this and certainly would have made our own complaints if we felt it was warranted.”

4.5. The Committee would remind the Complainant that allegations of unsatisfactory conduct and misconduct are serious and require evidence. Taking into account the evidence of the Owners, the Committee is entirely satisfied that the Licensee did not “threaten” the Owners, nor did she alone, upset them. Clearly, the Owners were more upset by the unprofessional and childish attitudes of

both parties. This is probably a breach of rule 6.3 by both Licensees but the Committee trusts that this finding will be a sufficient deterrent to the any future potential misuse of the of the complaints process in the future.

4.6. The Committee also considered whether these allegations constitute a misuse of the disciplinary system by the Complainant in order to gain some business advantage in his area. The Committee has decided that the Complainant may have genuinely felt that the situation was worse than it was, or believed that any disagreement with another Licensee in front of a client is worthy of a complaint to the Authority, but we caution the Complainant to ensure that the conduct complained of has genuinely affected a member of the public and is not without substance.

4.7. The Committee has determined to take no further action on the complaint.

5. Decision

5.1. After conducting an inquiry into the complaint, pursuant to section 89(1) of the Real Estate Agents Act 2008 (the Act), the Committee held a hearing with regard to that complaint. 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.

5.2. The Committee has determined under section 89(2)(c) of the Act to take no further action.

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 standards and that it is in the public interest that the decision be published.

6.3. The Committee directs publication of its decision with the identities of all parties removed.

6.4. 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).

7. Right of Appeal

7.1. A person affected by a determination of a Complaints Assessment Committee may appeal by way of written notice to the Real Estate Agents Disciplinary Tribunal (the Tribunal) against a determination of the Committee and must do so within 20 working days from the date of the determination.

7.2. The Committee has yet to finally determine this complaint because the parties are being given an opportunity to make submissions on orders before the Committee determines what orders should be made, if any.

7.3. The Committee considers that the 20 working day appeal period does not commence until it has finally determined this complaint by deciding what orders should be made, if any.

7.4. Appeal is by way of written notice to the Tribunal. Further information on filing an appeal is available by referring to the Guide to Filing an Appeal at www.justice.govt.nz/tribunals.

Signed

Marina Neylon

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 11 July 2013