Robertson - Complaint No CB6491342 [2013] NZREAA 29 (20 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: CB6491342

In the Matter of Grant Robertson

License Number: 10016861

Decision of Complaints Assessment Committee

Dated this 20th day of February 2013

Complaints Assessment Committee: CAC20003

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

Complaints Assessment Committee

Decision on Orders

1. Background

1.1 The Complainant has complained about Grant Robertson (the Licensee). The Committee’s decision of Unsatisfactory Conduct was dated 25 October 2012 (the Decision). Terms used below follow the same definitions as in the Decision.

2. Relevant Provisions

2.1 Having made a finding of unsatisfactory conduct against Grant Robertson, 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 Licensee made written submissions on penalty, admitting and explaining his errors in relation to the size of the Shed on the Property, and the annual rates.

3.2 In addition the Licensee addresses in his submissions the factual dispute, which was fully discussed in the Decision. The material aspect of this factual dispute relates to the time and date of signing of the agreement, and whether this occurred before or after the Complainant first viewed the Property. The Licensee’s submission includes a letter from the vendor, supporting the Licensee’s version of events.

3.3 The Complainant has supplied the Committee with an email, and various supporting documents, including a quote of $68,000 including GST for construction of an extension to the Shed to bring it into line with the larger measurements as advertised (not including siteworks, building pad preparation and Council fees). The Complainant also provided some other information supporting the Complainant’s version of the events which are in dispute.

3.4 In relation to the factual dispute, both parties are convinced that their version of events is correct, and both have provided the Committee with some evidence supporting their version.

3.5 The Committee has carefully considered these, because the Complainant places great importance on what he perceives as dishonesty on the part of the Licensee in this matter, and he has even gone so far as to allege forgery of his (the Complainants) signature. This is a very serious allegation, but the Committee has not placed much weight on this statement by the Complainant, considering that it has arisen only now at the stage of submissions as to penalty.

3.6 The Committee finds that it is unable to reach a conclusive decision on the question of whether or not the Complainant viewed the Property before signing the agreement. However, the Committee does not believe it to be necessary to decide the matter, in order to consider the question of penalty, despite the importance clearly placed on the issue by the Complainant.

3.7 The Complainant has maintained throughout that the size of the Shed was critical to his decision to purchase, and hence seeks a finding by the Committee requiring the Licensee to fund an extension to the Shed to bring it into line with the advertised dimensions. The Complainant states that he has been “devastated” by the discovery of the incorrect dimensions.

3.8 If the Committee accepts the Complainant’s version of the disputed events, the Complainant did not seek to view the Property prior to purchase. This is inconsistent with statements that the Shed size was critical to the Complainant, in the Committee’s view. Rather it is consistent with the Shed size either being well known to the Complainant from previous knowledge of the Property, or something that was not critically important. Accordingly, the Committee has not placed much weight on the Complainants statement in this regard.

3.9 The Complainant’s submissions also focus on the way in which the problem was resolved on settlement between the vendors and the Complainant as purchaser. The sum of $25,000 was apparently retained on settlement. The Licensee compensated the vendor for this. The Licensee took responsibility for his actions, and ensured that his vendor client suffered no loss as a result. The Licensee believes that the matter is being dealt with by a civil claim, which as the Committee has stated in it’s decision, is the correct forum.

3.10 The Complainant on the other hand, states that no civil claim has been instigated, and further notes that he and his lawyers were shocked to discover the Licensee’s involvement in that process.

3.11 The Complainant’s comments on this issue have been considered but disregarded by the Committee. The Licensee did everything he could to ensure that his genuine errors caused no adverse consequences to either party. It is irrelevant where the funds for the retention came from – that is a matter involving the Licensee and the vendors only, and can have no impact on the Complainant, who has the ability to pursue the matter civilly.

3.12 In relation to the rates error, the Complainant suggests that the Licensee compensates him for the rates difference, but this is also dismissed by the Committee. There is no suggestion that the amount of rates payable annually was important to the Complainant.

3.13 In conclusion, the Licensee acknowledges his errors and has taken responsibility for them. He has made clear and reasonable submissions on penalty, seeking no penalty to be ordered against him. He submits that because of his reputation and remorse, no further penalty is warranted. In relation to the claim that he should compensate the Complainant as to the value of an increase in the Shed size, he submits that this can and should be dealt with between the parties in accordance with the process begun on settlement by the lodging of claim for compensation and the retention of funds.

3.14 The Committee agrees with the Licensee’s submissions.

3.15 The Complainant’s submissions have not found favour with the Committee. His demands for compensation are not reasonable, and may derive from a wish to avoid the necessity of pursuing the matter in the proper way.

3.16 Accordingly, the Committee makes no finding of penalty against the Licensee, as considering the longstanding involvement of the Licensee in the industry, the finding of unsatisfactory conduct is sufficient penalty. No further orders are made in relation to this matter.

4. Decision

4.1 As discussed above, the Committee makes no orders in relation to the finding of unsatisfactory conduct.

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 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.

5.3 The Committee directs publication of its decision, but omitting the names and identifying details of the complainant (including the address of the property), and any third parties in the publication of its decision. The name of the Licensee and the Company he works for should be published.

5.4 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).

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

Alison Wallis

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 20 February 2013