Glozier - Complaint No CB7170653 [2013] NZREAA 351 (5 November 2013)

Last Updated: 21 January 2015

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

And

In the Matter of Complaint No: CB7170653

In the Matter of Denise Glozier

License Number: 10007493

Decision of Complaints Assessment Committee

Dated this 5th day of November 2013

Complaints Assessment Committee: CAC20003

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

Complaints Assessment Committee

Decision finding unsatisfactory conduct

1. The Complaint

1.1. This is a complaint lodged by the Complainant against Denise Glozier (the Licensee). The Licensee is a licensed salesperson under the Real Estate Agents Act 2008 (the Act) and, at the time of the alleged conduct, was engaged by Agency A. The Licensee left Agency A and began working for Agency B on 30 October 2012.

1.2. The Complainant is a licensed agent who worked as the Principal Officer for Agency A at the time of the alleged conduct by the Licensee.

1.3. The complaint relates to the Licensee’s conduct in relation to a listing for the Property.

1.4. The Complainant alleges that:

1.4.1. The Licensee secured the listing for the Property while working for Agency A but failed to provide the clients with a copy of the agreement.

1.4.2. The Licensee destroyed the original of the listing agreement.

1.4.3. Having destroyed the original listing agreement, the Licensee tried to persuade the clients to list with Agency B.

1.5. The Complainant submits that the Licensee’s conduct amounts to unsatisfactory conduct, if not

misconduct.

2. Material Facts

2.1. The Property is owned by Mr. and Mrs. M (the Clients). On 17 September 2012 the Clients called the

Licensee and requested an appraisal for the Property.

2.2. The Licensee states that a verbal appraisal was provided to the Clients and that no paperwork for the appraisal has been retained by the Licensee.

2.3. During this meeting the Licensee and the Clients discussed the work that the Clients had determined to do. The planned work included re-carpeting, tidying the pool area and replacing some roofing over the pergola.

2.4. The Licensee kept in touch with the Clients over the next few weeks and on 11 October the Clients told the Licensee that they had decided to give her the listing for the Property.

2.5. The Licensee met the Clients at the Property on 16 October 2012 and the Clients signed a sole agency authority with Agency A.

2.6. The Licensee states that the listing agreement was not “processed” straight away because the Property was not ready to be photographed due to the fact that the work on the Property had not yet been completed. The Clients disagree and state that they expected marketing to begin straight away.

2.7. The Licensee advised the Clients on 29 October that she was leaving Agency A to begin work at Agency B the next day. The Licensee states that the Clients asked her to do another appraisal to show what Agency B could offer them but the Clients state that this is not true.

2.8. The Clients state that they asked the Licensee for a copy of the listing authority with Agency A which the Licensee refused to provide. The Licensee states that she did not provide it because there was no final agreement. The Licensee states that the original listing was incomplete, left at Agency A’s office and has since disappeared.

2.9. On 30 October 2012 the Licensee and a coworker (Mr. E) left Agency A and commenced working for

Agency B.

2.10. The Clients contacted the Complainant at Agency A to discuss the situation and decided to sign a new sole agency authority for the Property with the Complainant and Agency A on 31 October.

3. Relevant Provisions

3.1 The Real Estate Agents Act 2008

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.

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.

3.2 The Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009

Rule 5.1 A Licensee must exercise skill, care, competence and diligence at all times when carrying out real estate agency work.

Rule 6.3 A Licensee must not engage in any conduct likely to bring the industry into

disrepute.

4. Discussion

Background

4.1. The Committee is aware that there is some bad feeling between the Complainant and the Licensee since she and Mr. E left the Complainant’s employ. The Committee notes that this is not the only matter referred to the Authority by the Complainant and ex staff members of that company.

4.2. The Rules state that a Licensee who has grounds to suspect that another Licensee has been guilty of unsatisfactory conduct may make a complaint to the Authority and a Licensee who has grounds to suspect that another Licensee may be guilty of misconduct must report the matter to the Authority.

4.3. Equally the rules make it clear that the Authority’s complaints process should not be abused. The Committee has carefully considered whether or not this complaint is a misuse of the disciplinary procedures and therefore a breach of rule 7.3 The Committee is satisfied that this complaint does not represent a breach of Rule 7.3

4.4. The Committee is satisfied that the matters complained of should have been investigated and that the results of the investigation have proven that, on the balance of probabilities, the Licensee is guilty of unsatisfactory conduct under sections 72(d).

Failure to supply a copy of the listing authority

4.5. The Clients state that on 29th October the Licensee was asked to provide them a copy of the original listing agreement which they signed on 16th October 2012. They say that the Licensee told them she had the agreement with her but that it could ”disappear” if the Clients wanted to list with Agency B.

4.6. The Licensee argues that she was never asked for a copy of the listing authority by the Clients, and it has since disappeared from Agency A’s office.

4.7. The Licensee also commented that the agreement was not complete. The Clients disagree with that statement and say that all the particulars were inserted on the agreement they signed on 16

October.

4.8. The Committee takes the view the Licensee may be referring to the fact that, according to Agency A

office procedures, the listing was unable to be processed, rather than being incompletely filled in.

4.9. The Licensee states that she believed a listing could not be processed until it was photographed.

She says that this particular listing could not be photographed until the renovation work was completed.

4.10. The Committee finds that the formation of a contract between the Clients and the Agency was not reliant on the ability to photograph it. The contract was formed when the Clients accepted the terms of the Agency by signing the agreement. The lack of knowledge around this basic contractual matter by the Licensee is concerning to the Committee. The Clients were entitled to a copy of the agreement within 48 hours as per Section 126(c).

4.11. The Committee is satisfied that the Licensee had ample time to provide the Clients with a copy of the document before she left Agency A and did not do so.

Destroying a contractual document

4.12. The Licensee states that the listing and all other accompanying documents have since disappeared from Agency A. The Clients state that the Licensee told them she had the listing contract with her at the time she met them on the 29th October.

4.13. The Committee finds that it is more likely that the Licensee retained and then destroyed the documents. It would have been in her best interests to do so, particularly if the Licensee was successful in persuading the Clients to change agents and list the Property with her new company (Agency B).

4.14. The Committee believes that if the documents had been in the hands of Agency A or the

Complainant, they would have been valuable evidence to support the Complainant’s allegations.

4.15. The Committee considered whether or not the willful destruction of this document is conduct that reaches the threshold to be considered as misconduct and therefore referred to the Disciplinary Tribunal.

4.16. The Clients have expressed no interest in taking the complaint to that level and the Committee takes the view that a finding of unsatisfactory conduct will allow it to impose a penalty that is appropriate in these circumstances.

Attempting to persuade the Clients to list with Agency B

4.17. The Licensee states that it was the Clients who asked about what her new company could do for them and that the Clients requested a new appraisal from her and Agency B. Even if this was the case, the Licensee knew that the Clients had entered into a sole agency with Agency A. The Clients could not list with Agency B unless they were prepared to pay two commissions. Again, the Committee finds the evidence of the Licensee is inconsistent at best.

4.18. The Clients deny asking the Licensee for an appraisal at this time and say that they already had two appraisals from other companies. The Clients were concerned that in signing an agency on 16

October they had a legal and moral obligation to Agency A. They say that they were disillusioned

and disappointed by the actions of the Licensee.

4.19. The Committee agrees that the Licensee has acted in a manner that reflects badly on the industry and that she has placed the Clients in a stressful and unnecessary position. Regardless of the motivations of the Complainant, the Committee believes that the Licensee must accept that it was her actions, and her actions alone, that placed the Clients in this situation.

4.20. The Committee notes that the Licensee has already apologized to the Clients for this.

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)(b) of the Act that is has been proved, on the balance of probabilities, that Denise Glozier has engaged in unsatisfactory conduct.

6. Orders

6.1. The Committee will conduct a separate hearing on the papers to 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 one 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.

6.2. The Committee requires the Case Manager to obtain a record of any previous disciplinary decision in respect of the Licensees under either the Real Estate Agents Act 1976 or the Act, if any such decision exists, and provide it to the Committee, the Licensee and the Complainant.

6.3. The Licensees and the Complainant may file submissions on what orders, if any should be made.

The Complainant may file submissions within 10 working days from the date of the decision. These submissions, if any, will then be provided to the Licensee, with a timeframe for filing final submissions.

7. Publication

7.1. One of the Committee’s functions pursuant to section 78(h) of the Act is to publish its decisions.

7.2. The Committee has deferred making any decision on publication until its hearing to decide what

orders, if any, should be made.

8. Right of Appeal

8.1. A person affected by a determination of a Complaints Assessment Committee may appeal by way of written notice to the Real Estate Agents Disciplinary Tribunal (the Tribunal) against a determination of the Committee and must do so within 20 working days from the date of the determination.

8.2. The Committee has yet to finally determine this complaint because the parties are being given an opportunity to make submissions on orders before the Committee determines what orders should be made, if any.

8.3. The Committee considers that the 20 working day appeal period does not commence until it has finally determined this complaint by deciding what orders should be made, if any.

8.4. Appeal is by way of written notice to the Tribunal. Further information on filing an appeal is available by referring to the Guide to Filing an Appeal at www.justice.govt.nz/tribunals.

Signed

Marina Neylon

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 5 November 2013