Countrywide Real Estate - Complaint No CB7172138 [2013] NZREAA 330 (5 November 2013)

Last Updated: 19 October 2014

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

And

In the Matter of Complaint No: CB7172138

In the Matter of Countrywide Real Estate

License Number: 10022507

Decision of Complaints Assessment Committee

Dated this 5th day of November 2013

Complaints Assessment Committee: CAC20007

Chairperson: Ann Skelton Deputy Chairperson: Paul Biddington Panel Member: Joan Harnett-Kindley

Complaints Assessment Committee

Decision on Orders

1. Background

1.1. The Complaints Assessment Committee (Committee) made a finding of unsatisfactory conduct against Countrywide Real Estate (Agency) on 19 July 2013. Submissions have been received on behalf of the Agency but not in relation to any appropriate penalty, rather a denial of the Committee’s findings and decision and a reference to the fact that the Licensee that caused all the breaches of the Act was almost impossible to manage.

2. Relevant Provisions

2.1. Having made a finding of unsatisfactory conduct against Countrywide Real Estate, the Committee must now decide what orders, if any, should be made under section 93 of the Real Estate Agents Act

2008 (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 Any determination as to what orders, if any, should be made following a finding of unsatisfactory conduct must be made in light of the basic objects and purposes of the Act. These are set out in section 3 of the Act and are 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)).

3.2 The Committee, in its decision of 19 July 2013, referred to two previous occasions whereby the Licensee who was under the control and direction of the Agency at the time of making all the errors and omissions, had been reprimanded. It was clear to the Committee that the Licensee in question was very difficult to manage and this was supported by statements from colleagues from the Agency. However, the sheer number and frequency of the breaches by the Licensee, coupled with the fact that the Agency signed off the sales and received the commissions, does not paint a picture of an Agency in control of its Licensees. It was on that basis that a finding of unsatisfactory conduct was made. The Agency has not provided any further information or submission that mitigates this position.

3.3 On that basis, the Committee makes the order as set out below.

4. Decision

4.1. In relation to the breach, the Committee orders the Agency to pay to the Authority a fine of $3000 pursuant to section 93(1)(g) of the Act. The fine should be paid within 20 working days from the date of this decision.

4.2. The Committee makes a further order censuring the Agency pursuant to section 93(1)(a) of the Act.

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. 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 their company should be published.

5.4. The Authority will publish the Committee’s decision after the appeal period has ended. Any application for an order preventing publication must be made to the Disciplinary Tribunal.

6. Right of Appeal

6.1. A person affected by a determination of a Committee may appeal to the Disciplinary 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 lodging an appeal is available by referring to the Guide to Lodging an

Appeal at www.justice.govt.nz/tribunals.

Signed

Ann Skelton

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 5 November 2013