Complaint No CB7202342 [2013] NZREAA 21 (1 February 2013)

Last Updated: 16 February 2014

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

And

In the Matter of Complaint No: CB7202342

In the Matter of Licensee 1

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this the 1st day of February 2013

Complaints Assessment Committee: CAC20001

Chairperson: Graham Rossiter Deputy Chairperson: Dean O’Leary Panel Member: Joan Harnett-Kindley

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1 Mr T Cranney (the Complainant) has complained to the Real Estate Agents Authority (the Authority) about the conduct of Licensee 1 (the Licensee). The Licensee is licensed under the Real Estate Agents Act 2008 (the Act) and holds a salesperson’s licence. He works for Agency A.

1.2 The Complainant has complained to the Authority about the conduct of the Licensee regarding the Licensee’s advertising campaign for and with respect to a subdivision of ‘townhouse’ type properties in Wellington. There has previously been a determination of this Complaints Assessment Committee (CAC) against the Licensee on another complaint by the same Complainant which raised very similar, if not identical, issues. See, in this regard, our decision on complaint CB7023818.

2. Material Facts

2.1 The content of the complaint is as set out in certain communications from the Complainant to the CAC case manager, dated, respectively, 28 November and 5 December 2012. The CAC has fully and carefully considered the content of both these communications.

3. Relevant Provisions

3.1 The relevant law is the definitions of ‘unsatisfactory conduct’ and ‘misconduct’ in, respectively,

sections 72 and 73 of the Real Estate Agents Act 2008.

3.2 Section 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 - 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 wilful 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

3.2 (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.

4. Discussion

4.1 The communications from the Complainant which set out his most recent complaint raise some issues, e.g. the matter of title in relation to the ‘availability’ of these properties and the images in the photographs used in the Licensee’s marketing, that have been already addressed by the CAC, if not quite in the precise terms now raised by the Complainant. Our view would be that the question, in particular, of whether any breach of the Act is occasioned by the Licensee using (if this is the case), to market one townhouse, images from equivalent parts of an absolutely identical property next door, has definitely been already determined by us.

4.2 The sense or ‘flavour’ of the complaint currently before us can, at the risk of bluntness, be gauged from the first two paragraphs of the e-mail to the case manager of 28 November 2012. The Complainant complains, firstly, that the relative advertisement refers to ‘’brand new townhouses’’ when only one address is specified (the underlining is the Complainant’s). Thus, the Complainant, it would seem, expresses concern about the language being in the plural, as opposed to the singular, when this is a subdivision (as the Complainant is perfectly well aware) comprising several townhouses which were completed, if not at the same time, then within a short time of one another.

4.3 Further to paragraph 4.2 above, the Complainant next states that the subject property ‘’has 1 bathroom and two toilets, not 1 bathroom as specified.’’ (The underlining and bold print is, again, the Complainant’s). In other words, the Complainant apparently takes exception to the Licensee understating in his advertisement, the ablution facilities available in this townhouse. Frankly, this is absurd.

4.4 The major assertion made by the Complainant is that the subject property is advertised as a

‘brand new home,’ when it is or has, allegedly, been occupied by someone associated with the vendor for a brief time between completion of construction and sale. We have not, of course, at this stage sought the response of the Licensee with respect to this question, i.e. at this point it is not known if it is true or untrue that someone is, or has been, temporarily occupying this townhouse. The Committee’s approach to this issue, for the purpose of deciding whether to inquire into this complaint, is really to ask ourselves this question: if someone is or has been temporarily occupying this townhouse, could a characterisation of it by a salesperson as being a

‘brand new home,’ when construction of it has only very recently been completed, possibly be found to be false and misleading? We think not and the CAC does not consider it necessary to inquire into this question.

4.5 We do not, in fact, consider it necessary to inquire into any of the ‘issues’ arising from the complaint submitted to the Authority and passed on to the CAC. In our determination of complaint CB7023818 we gave consideration to whether the complaint then dealt with should be found to have been “vexatious’’. As we then said, a complaint is vexatious if it is brought merely for the sake of annoyance or oppression. On balance, the CAC decided not to base its decision not to inquire further on that ground. (The CAC did observe in its earlier decision that

‘the Complainant would appear to have a quite intense and absorbed focus on this subdivision

project and the vendor for reasons that are quite inexplicable but need not concern us.’)

4.6 Further to paragraph 4.5 above, this CAC is now compelled to find, as we do, that this Complainant and his ‘complaint’ are vexatious. The complaint that we are here dealing with is made purely and merely for the sake of annoyance or oppression. Any CAC tends to avoid, wherever possible (see paragraph 4.2 above), bluntness in dealing with a complaint, even where that might be without merit. It has to be said that avoidance of bluntness is, with regret, no longer here possible or appropriate. This Complainant is now abusing the processes of the Authority and the Act to a degree that is improper. If we, as a CAC, did have the power to award costs against the Complainant (we clearly do not) the CAC would do so.

4.7 Section 74(2) of our empowering Act requires that every complaint submitted to the Authority be referred to a CAC. This provision is superficially straightforward. We wonder, however, whether it necessarily means that the Authority is bound to refer to a CAC a complaint even if the subject matter of that has been already considered and determined. In this regard, the subject matter of the current complaint is, substantially, material that has either been clearly already determined by the CAC or a relatively minor re-stating or re-structuring of what has been raised in the previous complaint so as to, in effect and in colloquial terms, give the Complainant a second ‘bite at the cherry’. This is clearly not what those responsible for the drafting of the Act had in mind.

5. Decision

In accordance with section 79(1) of the Act, the CAC met to consider this complaint. Pursuant to section 79(2)(c), the CAC determined that the complaint is frivolous and vexatious. For this reason, it need not be pursued and will not be.

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 to 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, but omitting the name and identifying detai ls of the Licensee.

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 Committee may appeal to the 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 filing an appeal is available by referring to the Guide to Filing an Appeal

at www.justice.govt.nz/tribunals.

Signed

Graham Rossiter

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 1 February 2013