Complaint No C00919 [2013] NZREAA 359 (16 September 2013)

Last Updated: 19 June 2020

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

And

In the Matter of Complaint No: C00919

In the Matter of the Agency

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 16th day of September 2013

Complaints Assessment Committee: CAC20006

Chairperson: Paul Biddington

Deputy Chairperson: Ann Skelton

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. The Complaints Assessment Committee (the Committee) was investigating another complaint when it decided to inquire into the in-house complaints procedures by the head office the Agency.

1.2. The decision to inquire was pursuant to section 78(b) of the Real Estate Agents Act 2008 (the Act) and was made on 11 February 2013. Further evidence was gathered by the Real Estate Agents Authority (the Authority) and considered by the Committee at its meeting on 19 March

2013.

2. Material Facts

2.1. The Committee investigated the practices of the Agency as a result of a complaint about the conduct of one of the Licensees that worked for it. That complaint related to the Licensee harassing the Complainant for the payment of commission.

2.2. The Committee’s decision to investigate the Agency was to assess its in-house procedures for dealing with complaints.

2.3. The Complainant stated that she had contacted the Agency several times by email and letter but no response was received.

2.4. On 5 April 2012 solicitor’s acting for the Complainant wrote to the Agency prior to the Disputes

Tribunal hearing date in an attempt to resolve the issue about commission. Furthermore, on 5

April 2012 the Complainant’s solicitor emailed the Complainant advising that Mr X, of the Agency had been sent the letter by fax and post and the licensee had been sent the letter by email and post.

2.5. On 4 March 2013 Mr X advised the Authority that he had no record or recollection of being contacted by the Complainant or the Complainant’s solicitors either by post or fax. However he did state that he was aware the Agency was initially claiming 50% commission through the Disputes Tribunal for a sale between the Owners and that the amount was subsequently reduced to $10,000.

2.6. On 4 March 2013 Mr X advised the Authority that the Agency’s files showed that the matter was referred to the Agency on 20 December 2011 by the Licensee and his intention to proceed with a claim for commission.

2.7. On 21 December 2011 a response was sent to the Licensee agreeing with the Dispute Tribunal process, but suggested that a formal payment letter should be sent first. A draft letter was sent for the Licensee’s consideration. It is unclear whether the Licensee sent the letter to the Complainant.

2.8. The Licensee, in his discussions with the Complainant in relation to the complaint, never suggested that the Agency would consider an alternative way of dealing with the complaint other than to proceed with its claim for commission through the Disputes Tribunal. The Agency proceeded with its claim and the Complainant counter-claimed. Both claims were dismissed.

3. Relevant Provisions

3.1. A complaint can only be made in relation to alleged unsatisfactory conduct (section 72 of the

Act) or alleged misconduct (section 73 of the Act).

3.2. Section 72 of the Act provides:

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 of the Act provides:

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. The Committee is of the view that the Agency was aware of the complaint as evidenced by Mr X’s letter sent to the Licensee acknowledging the Licensee’s intention to pursue the claim for commission through the Disputes Tribunal.

4.2. Furthermore, the Committee is of the view that the Agency could have considered the complaint using its in-house complaints procedure. In fact it should have followed its own process rather

than proceed with its claim in the Disputes Tribunal. However, the Committee believes that it would have resulted in the same outcome.

4.3. Accordingly, the Committee, after its investigation of the Agency finds that there has not been a breach of the Act or the Rules in relation to the complaint.

5. Decision

5.1 The Committee met to consider the complaint and pursuant to section 78(b) determined to inquire into it.

5.2 In accordance with section 90(1) of the Act, the Committee conducted the hearing on papers, and pursuant to section 90(2) the Committee’s determination was made on the basis of the written material before it.

5.3 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 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 complainant (including the address of the property), the licensee and any third parties in the publication of its decision.

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

Paul Biddington

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 16 September 2013