Complaint No CB6876524 [2013] NZREAA 68 (16 April 2013)

Last Updated: 2 March 2014

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

And

In the Matter of Complaint No: CB6876524

In the Matter of Licensee

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 16th day of April 2013

Complaints Assessment Committee: CAC20002

Chairperson: Patrick Waite Deputy Chairperson: Deirdre McNabb Panel Member: Barrie Barnes

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1 The Complainant has complained to the Real Estate Agents Authority (the Authority) about the conduct of the Licensee, who holds an agents license and is employed by the Agency. The complaint is in regard to how the Licensee dealt with the Complainant’s concerns when they made a complaint against Licensee 2 who, at the time of the complaint, was employed by the Agency as a salesperson. The complaint in regard to Licensee 2 is subject to a separate determination by the Committee.

1.2 The complaint is:

• “Licensee 2 approached us with the intent to deceive. He represented to us that he was the buyer. Licensee 2 has been untruthful and used his position as an agent for his own commercial gain”.

• “The Licensee had enough knowledge about Licensee 2 actions to have better protected us from this whole situation. The Licensee did not act with any urgency when we informed (him) of our concerns. We believe the Licensee’s loyalty and sympathy to Licensee 2, outweighed his obligations to us, the clients.”

1.3 The Authority referred the complaint to the Complaints Assessment Committee (the

Committee). Pursuant to section 79(1) of the Act, the Committee considered the complaint on

21 June 2012 and made a decision to inquire into it.

1.4 To assist in their understanding of the background to the complaint and in the interests of natural justice the Committee invited Licensee 2 to provide a response to the complaint which was received on 22 August 2012 through Licensee 2’s legal counsel.

1.5 The Complainant has provided copies of information to support her complaint to the Agency in March 2011. This was responded to by Licensee 2 on 27th March 2011 a copy of which was provided to the Committee by the legal counsel.

1.6 Having satisfied itself that it had completed its inquiry into the complaint, the matter was considered by the Committee on 8 February 2013.

1.7 The hearing was conducted on the papers pursuant to section 90(2) of the Act and the

Committee made its determination on the basis of the written material before it.

2. Material Facts

2.1. The Licensee, received an email of complaint from the Complainant on 12 January 2011 and organized to meet with Licensee 2. He then emailed the Complainant on 17 January 2011 to arrange a meeting between the parties.

2.2. On 18 January 2011 the Licensee visited the Complainant and requested that they give Licensee

2 sometime due to his personal problems.

2.3. The Complainant feels that the Licensee did not answer emails and that his sympathy was with Licensee 2, although she acknowledges that the Licensee complied with the Agencys findings and ended Licensee 2’s contract. She states however that the Licensee has never offered an apology. She also alleges that the Licensee had prior complaints from others known to the Complainants.

2.4. She also alleges that when Licensee 2 arrived at the Complainant’s address to apologise, they emailed the Licensee, who acknowledged receipt of their email on the same day, being 11

February 2011. However there is a further email from the Complainant on 23 February 2011 where she states they have heard nothing further from the Licensee.

2.5. An Agency Complaint form was sent to the Complainant on 3 March 2011.

2.6. On 10 March 2011 the Licensee acknowledged receipt of the complaint and stated that the delay in responding was due to the fact that the Complainant had engaged a solicitor and as such he was awaiting instructions from his Regional Office. He further apologised for the delay.

2.7. The Licensee sent a letter to the Complainant on 15 April 2011 stating that Licensee 2’s contract

had been terminated as of 13 April 2011.

2.8. The Complainant again emailed the Licensee on 14 May 2011 and complained that Licensee 2 was still listed on the Agency’s website. The Licensee responded on 16 May 2011 stating that Licensee 2 was no longer an agent with the Agency and that he had no control over what Licensee 2 did outside of this.

3. Relevant Provisions

3.1 The Committee examined the information supplied by the Complainant in her written complaint to determine whether section 72 or section 73 of the Real Estate Agents Act 2008 (the Act) applied i.e. was there evidence which would indicate that the Licensee could be considered guilty of unsatisfactory conduct (section 72) or misconduct (section 73).

Section 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 of 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 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

Rule 6 Standards of professional conduct

6.2 A licensee must act in good faith and deal fairly with all parties engaged in a transaction.

6.3 A licensee must not mislead a customer or client, nor provide false information, nor withhold information that should by law or fairness be provided to a customer or client.

9.23 A licensee must not use information that is confidential to a client, for the benefit of any other person or of the licensee.

4. Discussion

4.1. Whilst the complaint against the Licensee is that he did not adequately handle the complaint process in dealing with Licensee 2, there is evidence to show that the Licensee did in fact intervene when it became apparent that Licensee 2 had a possible conflict issue with potential purchasers. Further there is evidence from the correspondence the Committee received between the Complainant and the Licensee over the dispute which indicates that he was aware of the Complainant’s concern and was engaged with discussions with Licensee 2 about this. He further contacted the Complainant when Licensee 2’s contract with the Agency was terminated.

4.2. The Complainant obviously feels that the Licensee did not act with any urgency when he was informed of her concerns. She states that she believed that the Licensee’s loyalty and sympathy to Licensee 2 outweighed his obligations to her, his client. She has referred to some complaints which she believed were made about Licensee 2’s behaviour with another property and states that she believes the Licensee was aware of these. The Complainant has also alleged that Licensee 2 disclosed confidential information about her business to another.

4.3. Whilst the Complainant may feel that the Licensee has allowed his loyalty and sympathy to Licensee 2 to outweigh his obligations to the Complainant and that he had not acted with urgency, the Committee has not identified sufficient evidence to support this claim. Everything that the Committee reviewed would indicate that, whilst not obviously with the haste that the Complainant felt he should have, from the Committee’s perspective the Licensee acted appropriately when being made aware of the issues arising because of Licensee 2.

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 to take no further action with regard to the complaint or any issue involved in the complaint in relation to the conduct of the Licensee.

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

Patrick Waite

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 16th April 2013