Complaint No C00166 [2013] NZREAA 63 (10 April 2013)

Last Updated: 2 March 2014

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

And

In the Matter of Complaint No: C00166

In the Matter of Licensee 1

Licence Number: XXXXXXXX

And

In the Matter of Licensee 2

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 10th day of April 2013

Complaints Assessment Committee: CAC20005

Chairperson: Stuart Rose

Deputy Chairperson: Chris Rogers

Panel Member: Denise Bovaird

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1 The Complainant has complained about the conduct of Licensee 1 and Licensee 3 (the Licensees).

Licensee 1 holds an agents license, Licensee 2 is a licensed salesperson. Both work for the Agency.

1.2 The complaint is that Licensee 2 brought a male to the Complainant’s door and threatened her and also that Licensee 1 was threatening to her.

2. Material Facts

2.1 The Complainant is the neighbour of the Property which was being marketing for sale by the Licensees. The Complainant alleges that Licensees came onto her property to discuss the painting of her carport. One of its walls adjoins the property being marketed and it is said that the Licensees felt its appearance was hindering the sale of the Property. The Complainant says that the Licensees indicated she could be liable for any shortfall in the sale price received for the Property.

2.2 The Complainant says that Licensee 1 visited her on her property a second time and offered a cash incentive for the painting of her carport and when this was refused described her as a “sad and lonely person”.

2.3 The Complainant says that since she has lodged this complaint someone has entered her land and painted the back of her carport black. She believes the Licensees did this.

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). 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.

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.

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

6.3 A licensee must not engage in any conduct likely to bring the industry into disrepute.

4. Discussion

4.1 The Committee has considered the Complainants evidence and the material supplied by the

Licensees.

4.2 In Licensee 1’s submission he says that there have been issues between the Complainant and her neighbour for some time regarding the carport which he says was a non-complying structure in terms of the district plan. He advises that it was subsequently moved but that since that time the Complainant had painted “off putting” signs and words on the side facing the Property including at one time “I’m watching U”.

4.3 Licensee 1 admits to visiting the Complainant to discuss the signs and says that they did so mindful of not causing any offence. He says the Complainant said “there is nothing she (the vendor) can do about it, I have spoken to my lawyer.” He says at no time were they threatening or intimidating and that the conversation only lasted a few minutes.

4.4 Licensee 2 in her evidence confirms Licensee 1’s evidence

4.5 We are faced with conflicting statements from the Complainant and the Licensees. We have evidence from the owner of the Property and the developer of the background to this dispute who provided evidence of long standing issues with the Complainant regarding the carport. Taking all information available to us and in the absence of any further evidence on the balance of probabilities we prefer the evidence of the Licensees, and find nothing to support a charge of misconduct or unsatisfactory conduct and dismiss the complaint accordingly.

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 that it take no further action with regard to the complaint or any allegation or any issue involved in the complaint or allegation.

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 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 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

ww w. justi ce. g ov t. nz/ tri bunal s .

Signed

Stuart Rose

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 10 April 2013