Complaint No C03501 [2013] NZREAA 250 (25 November 2013)

Last Updated: 3 August 2014

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

And

In the Matter of Complaint Numbers: C03501 and C03502

In the Matter of Licensee

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 25th day of November 2013

Complaints Assessment Committee: CAC20008

Chairperson: Graham Rossiter

Deputy Chairperson: Ellen Ryan

Panel Member: Joan Harnett-Kindley

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1 The Complainants have complained to the Real Estate Agents Authority (the Authority) about the conduct of the Licensee. The Licensee is licensed under the Real Estate Agents Act 2008 (the Act).

1.2 The complaints are about the marketing material video that the Licensee placed on the website,

‘You Tube.’ The video is a clip from the movie Downfall which is set in a bunker and focuses, in

particular, on the final days of Adolf Hitler. Subtitles have been added by the Licensee Agency. These subtitles depict Hitler discussing with his generals the ‘threat’ that the Licensee’s model of real estate practice and marketing presents as if, that is to say, Hitler is a ‘mainstream’ real estate agent.

2. Material Facts

2.1 The facts are as stated above. The events described in this complaint occurred in July this year.

The two Complainants state that the video suggests or implies that other i.e. ‘mainstream’ real estate agents are like Hitler, that they overcharge their vendor-clients and ‘short change’ their salespersons.

2.2 The Complainants say that they find the video offensive and disrespectful. They say it brings the industry into disrepute. Their counsel submits that ‘this is a serious matter and should be taken seriously by the Real Estate Agents Authority.’

3. Relevant Provisions

3.1 The relevant law is the definitions of ‘real estate agency work’ in section 4 of the Real Estate Agents Act 2008 and the definitions of ‘unsatisfactory conduct’ and ‘misconduct’ in, respectively sections 72 and 73 of the Act.

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

(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 A full transcript of the video clip that is the subject of this complaint has been provided to the Complaints Assessment Committee (the Committee). We will only refer to the specific details of it as is necessary to do so for the purpose of giving this decision. The initial question to be considered by us is whether the composition and dissemination of this video can be regarded as

‘unsatisfactory conduct’ for the purposes of section 72 of the Act. Conduct can only be in breach of section 72 if it is ‘real estate agency work.’ This expression is defined in section 4 of the Act as being “any work done or services provided, in trade, on behalf of another person for the purpose of bringing about a transaction.”

4.2 The issue of whether there was here ‘real estate agency work’ can be dealt with in relatively short order. We are mindful of the line of authority in the Real Estate Agents Disciplinary Tribunal evidenced by such cases as Miller v. REAA and Robinson [2013] NZREADT 14 which emphasise, in effect, the taking of a broad approach to the construction of this expression. The Tribunal said [25] “ it is necessary to give the definition of real estate agency work an interpretation which is in keeping with the purposes of the Act (s.3). The purpose of the Act is of course, inter alia, to act as consumer legislation.”

4.3 On the other hand the Tribunal in Miller also said [27]: “that having been said, the Tribunal must also be careful not to give too wide or liberal interpretation to real estate agency work. It must be able to be seen, on an objective analysis that the conduct complained of amounted to work designed to bring about a transaction.” It is at this point that it becomes manifestly clear that there is absolutely no way this video could be regarded as work intended to bring about a transaction. It was, the Licensee says, part of its training and internal motivation processes. Even if the Complainants are right that this was promotional material intended to be seen by the public, it could still not reasonably be characterised, in context, as being directed at bringing about a transaction. We would add that there is nothing about this matter that gives rise to any issue of consumer protection. Rather, what this case is all about is the reaction of certain members of the industry, who say that they are offended by the content of the video.

4.4 Having found, as we do, that this case does not involve ‘real estate agency work’ in relation to which a finding of ‘unsatisfactory conduct’ may be made, the only disciplinary action that could possibly be taken by this Committee would be the laying with the Tribunal of a charge of

‘misconduct’ in breach of section 73 of the Act. Learned counsel for the two Complainants suggests that what has occurred here is misconduct in that it “would reasonably be regarded by agents of good standing, or reasonable members of the public as disgraceful.” (section 73(a)). It

has to be said, as a starting point that, realistically, this (paragraph a)) is the only provision of section 73 in which what happened here, could possibly be brought within.

4.5 It is appropriate to bear in mind that, in considering the possible laying of a charge of misconduct, it is not for this Committee to actually determine whether that has or has not occurred. Rather, it is the Committee’s responsibility to decide if the evidential material placed before us reaches a threshold that means that there is a case that warrants this matter being placed before the Tribunal as a case of alleged misconduct. In short, we are considering if there is a prima facie case, regard being had to a range of factors, including the evidence adduced by all parties, the seriousness and gravity of the allegations and any relative policy considerations.

4.6 The statements by the two Complainants have been carefully and fully considered by us. One of those appears to suggest that the video “glorifies Nazism.” It goes on to say that the video sends a message (“simile” in his words) that real estate agencies in New Zealand “are like Hitler...arrogant (and) fascist.” There is said to be in the video “an anti-Semitic message.” The content of the statement from the other Complainant is somewhat similar. This also refers to the “anti-Semitic, aggressive overtones” of the clip which likens real estate agencies in New Zealand to Adolf Hitler.

4.7 The Licensee says that the video was a “fun clip made for internal purposes only. It was not an advertisement.” It was made public “ in error.” For that, the Licensee’s principal says (not directly but through his ‘legal assistant’) that he apologises. Immediately when it came to the attention of the Licensee that it had become ‘public,’ it was withdrawn. It is contended that the Complainants themselves had a part in the public dissemination of the content of the video. Finally, it is suggested that the complaints are ‘vexatious.’

4.8 This case is all about a parody of Adolf Hitler. Arguably, the content of the subject video is insensitive and foolish. The complaints are definitely not vexatious and it frankly does not help the cause of the Licensee to, in its response, focus on such trivia as the spelling of Hitler’s first name in the correspondence from the Complainants’ counsel. At the very least, this smacks of a certain flippancy in the attitude of the Licensee.

4.9 It might properly be debated whether someone as absolutely malevolent as Adolf Hitler being, as he obviously was, a mass murderer universally regarded as having been principally responsible for the greatest conflict in the history of mankind, should ever be the subject of parody. Be that as it may, Adolf Hitler is and has been the subject of enormous parody. A Google search for

‘parodies of Hitler’ by the writer of this decision for the Committee brought up 1,320,000 results. Many of these, at a very quick glance, seem to be parodies constructed of extracts from the film Downfall. There would appear to be, for a mixture of reasons, motives and purposes, a veritable industry of Hitler parody.

4.10 Coming back to the video clip that is the subject of these complaints, this was, at the end of the day, a primarily motivational attempt at humour-however misguided. Acknowledging, as we do, the strong feelings of the Complainants, it is necessary to bring to bear some common sense, proportion and perspective to this matter. To say that the video either seriously intended to suggest that other real estate agencies are somehow fascist or neo-Nazi, or that it can realistically be so interpreted, is to take several steps too far. Frankly, such contentions are untenable, as is the suggestion that the tone of the video is ‘anti-Semitic.’

4.11 With respect to the fundamental question of whether there is arguable misconduct here for the purposes of section 73 of the Act, the Committee is mindful of the approach taken by the Tribunal in CAC v. Downtown Apartments Ltd and Anor [2010] NZREADT 6. In dealing with a

charge of misconduct contrary to section 73(a) of the Act, the Tribunal said that it must be satisfied that the Licensee’s actions “represented a marked and serious departure from the standards of an agent of good standing or a reasonable member of the public.”

4.12 The Committee is, further to the foregoing, mindful of the point already stated above that it is for the Tribunal to determine if there has been misconduct, not a Complaints Assessment Committee whose role is limited to considering if there is a sufficient case to warrant the laying of a charge. In this regard, we have to ask ourselves whether the circumstances here are such as to justify serious disciplinary action such as that. Our answer to this question is in the negative and for that reason no further action will be taken in the matter.

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 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 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 names and identifying details of the Complainants (including the address of the property). The details of the Licensee will be published.

6.4 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.

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: 25 November 2013