Biddick - Complaint No C00596 [2013] NZREAA 149 (6 August 2013)

Last Updated: 1 June 2014

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

And

In the Matter of Complaint No: C00596

In the Matter of Murray Biddick

License Number: 10017163

Decision of Complaints Assessment Committee

Dated this 6th day of August 2013

Complaints Assessment Committee: CAC20002

Chairperson: Patrick Waite

Deputy Chairperson: Deirdre McNabb

Panel Member: Barrie Barnes

Complaints Assessment Committee

Decision on Orders

1. Background

1.1. By its decision dated 3rd May 2013 the Complaints Assessment Committee (the Committee) made a determination under section 89(2)(b) of the Real Estate Agents Act 2008 (the Act) that the Licensee Mr Murray Biddick had engaged in unsatisfactory conduct as that term is defined in section 72 of the Act.

1.2. Having made a determination under section 89(2) (b) the Committee may make one or more of the orders set out in section 93 of the Act.

1.3. The Committee invited the Licensee to make any comments or submissions he wished on the

Committee's determination.

1.4. A submission was received from the Licensee through his legal advisor dated 20 May 2013. They submit that:

• The breach of section 32 of the Lawyers and Conveyancers Act 2008 (the Act) was extremely minor, and technical in nature. Mr Biddick had previously been present at any other time when Ms S had worked on agreements. She had not prepared earlier agreements by herself in the absence of Mr. Biddick. Whilst Ms S had written in such agreements, she had done so whilst being watched by either Mr. Biddick or the sales manager, Ms W.

• In this case, Ms S filled in the standard form agreement, and inserted standard form pre-printed clauses prepared by lawyers. She did so because of the time of evening, which meant that Mr Biddick was not available. She also knew that Mr Biddick would finalise the draft offer before it was signed.

• It is arguable that Ms S’s conduct actually fell within the exception at section 36(4) of the Act. In any event however there was no prospect of anything Ms S did in relation to the draft offer itself putting members of the public at risk.

• That the purposes of the Real Estate Agents Act 2008 are satisfied by the finding of unsatisfactory conduct. The technical breach only occurred because of a very unusual and isolated set of circumstances. Mr. Biddick is obviously now aware of the need to comply with even the most technical requirements of the Act. A fine would be of no utility, and would add nothing to the Committee’s decision.

• As far as publication is concerned, it is submitted that Mr. Biddick should not be identified in any published decision. Publication of the decision is obviously desirable to ensure no other licensees are guilty of a technical failure to supervise.

2. Relevant Provisions

2.1. Having made a finding of unsatisfactory conduct against Mr. Biddick 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. The Committee noted from the submission from Mr. Biddick’s legal advisor that he does not deny that a ‘breach’ of section 32 of the Lawyers and Conveyancers Act 2008 (the Act) occurred. Whilst they may maintain that the ‘breach’ was extremely minor, and technical in nature the reality is that Mr. Biddick, who was her supervising agent, allowed Ms S, who had been ‘registered’ only 2 months prior to this transaction, to 'prepare' an agreement when she had less than six months experience

as a licensee.

3.2. In the Committee’s opinion it is irrelevant that Mr Biddick viewed the agreement before it was signed by the purchaser’s fellow trustee and solicitor or the owners as the breach had already occurred.

3.3. The Licensee had earlier confirmed (letter from his legal counsel dated 25th March 2013 paragraph

21) that other contracts were prepared by Ms S. This supports the Committee’s opinion that the breach of the Lawyers and Conveyancers Act was an ongoing one by both of them and confirms the Committee’s conclusion that there has been an ongoing lack of supervision of Ms S by the Licensee.

4. Decision.

Principles considered

4.1. The Committee, when determining whether or not to make an order under section 93(1), has also had regard to the functions which the imposition of a penalty usually must serve in professional disciplinary proceedings. They include:

a. Promoting and protecting the interests of consumers and the public generally

Section 3(1) of the Act sets out the purpose of the legislation. The principal purpose of the Act is "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." One of the ways in which the Act states it achieves this purpose is by providing accountability through an independent, transparent and effective disciplinary process (section 3 (2)).

b. Maintenance of professional standards

This function has been recognized in professional disciplinary proceedings involving other professions (for example, in medical disciplinary proceedings; Taylor v The General Medical Council [1990] 2 All ER 263; and in disciplinary proceedings involving valuers; Dentice v The Valuers Registration Board [1992] 1 NZLR 720). In the Committee's view this function is also applicable in the disciplinary processes under the REAA.

c. Punishment

The Committee accepts that a penalty in a professional disciplinary case is primarily about the maintenance of standards and the protection of the public. However in the Committee's view there is also an element of punishment - indicated by the power the Committee has to impose a fine (section 93(l) (g); or make an order of censure (section 93(l) (a)). The element of punishment has been discussed in the context of other professional disciplinary proceedings (see Patel v Dentists Disciplinary Tribunal (High Court, Auckland, CIV 2007-404-

1818 Lang J 13 August 2007, where the Court said that disciplinary proceedings inevitably involve issues of deterrence, and penalties are designed in part to deter both the offender and others in the profession from offending in a like manner in the future.)

d. Where appropriate, rehabilitation of the professional must be considered

The Committee regards its power to make an order requiring a licensee to undergo training or education as indicative of this function applying in the context of professional disciplinary processes under the Act.

4.2. The Committee acknowledges that when making an order under section 93, the order/s made must be proportionate to the offending and to the range of available orders.

4.3. Having regard to the facts of this case as recorded in the Committee’s determination dated 3rd May

2013, and the established unsatisfactory conduct and functions which the imposing of a penalty is designed to serve, the Committee has determined to make the following orders under section

93(1):

4.3.1 The Committee imposes on Mr. Biddick a fine of $5,000 payable to the Authority within 20 working days of this order.

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. Whilst the Committee considered the Licensee’s request not to publish his details, the Committee has decided that the Authority will, in the interests of both, holding licensees accountable as well as emphasizing the importance of supervision of inexperienced sales people, 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

Patrick Waite

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 6th August 2013