Complaint No C04824 [2014] NZREAA 196 (7 July 2014)

Last Updated: 28 February 2015

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

And

In the Matter of Complaint No: C04824

In the Matter of The Licensee

License Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 7th day of July 2014

Complaints Assessment Committee: CAC306

Chairperson: Michael Vallant Deputy Chairperson: Paul Biddington Panel Member: Marjorie Noble

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1 The Complainants have complained to the Real Estate Agents Authority (the Authority) about the conduct of the Licensee. The Licensee is licensed under the Real Estate Agents Act 2008 (the Act), and holds a salesperson license. He is employed by the Agency.

1.2 The Complainants’ property (the Property) had been placed in receivership by the Bank who had appointed XYZ as receivers (the Receivers).

1.3 The Licensee was appointed by the Receivers to market the Property. During the receivership the Complainants left the Property and relocated to another property. The Complainants allege the Licensee disclosed to the Receivers the new address thereby breaching the Complainants privacy.

2. Material Facts

2.1 On 27 of September 2013, the Receivers were appointed by the Bank in respect to the Complainants’ Property. The Receivers appointed a Mr. K to manage the Property on a day to day basis. Initially the Complainants worked under the supervision of Mr. K, however, at some time in the receivership the relationship between the Complainants and Mr. K broke down, resulting in the Receivers requiring the Complainants to leave the Property.

2.2 In October 2013, at the request of the Receivers the Licensee appraised the Property and in

November of 2013 the Licensee was instructed by the Receivers to sell the Property.

2.3 On 11 November 2013 the Complainant, contacted the Licensee by telephone. During the telephone conversation the Complainant stated words to the effect 'someone should put a bullet between his (Mr. K’s) eyes'. The Complainant denies using those words and says he used the words 'one day someone will shoot him (Mr. K)'. As a result of that conversation, the Licensee initially spoke with his manager, followed by Mr. K and the Receivers. The Receivers, being responsible for the welfare of Mr. K directed the Licensee to advise the Police.

2.4 As a result of the complaint received, the Police went to the Property and seized three unsecured firearms and ammunition.

2.5 On 28 January 2014 notice was given to the Complainant, by the Police stating they were considering revoking the Complainant’s firearms license resulting from the alleged statements he made to the Licensee and their visit to the Property.

2.6 On 12 February 2014, the Police gave written notice to the Complainant, stating his firearms license would be returned but the incident would be noted on his firearms file.

2.7 On 4 March 2014 the Complainants lodged a complaint with the Authority alleging the Licensee disclosed to the Receivers his new address thereby breaching their privacy.

3. Relevant Provisions

3.1 The relevant law is section 72 of the Real Estate Agents Act 2008 (the Act) as to the definition of unsatisfactory conduct.

3.2 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 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 The Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012 (the Rules) set the standard of conduct and client care that agents branch managers or salespersons (licensees) are required to meet when carrying out real estate agency work and dealing with clients. Whilst these rules are not meant to be an exhaustive list, they set minimum standards that licensees must observe and are a reference point for discipline.

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

4. Discussion

4.1 At the outset the Committee wishes to make clear, the Committee must decide on the balance of probabilities and the onus is always on the Complainants to establish their case Hodgson v CAC

& Arnold(2011) REDT 03.

4.2 The Licensee who had known the Complainants for a number of years, during which he had marketed and sold their previous farm, was well aware at the time these events took place that they were under considerable stress and financial pressure.

4.3 The Licensee’s knowledge of the Complainants’ position was as a result of discussions he had had with their bank manager who had asked if the Licensee could assist the Complainant. The Licensee had put the Complainants in touch with the local rural support group. The Licensee had also at the request of the Complainants appraised the Property in February of 2013 and put forward marketing options. In the Licensee’s view, meetings and dealings with the Complainants had always been professional and he had considered them friends.

4.4 Once the Property was put into receivership and the Licensee had received instructions to sell the Property from the Receiver, all appointments and dealings in relation to the Property were made through Mr. K, the Licensee had no dealings with the Complainants. The Licensee states processes were put in place to show prospective buyers the Property so as to limit the Complainants’ stress, aggravation and frustration.

4.5 On 11 November 2013 at a weekly sales meeting at the Agency’s office, the Licensee received a telephone call from the Complainant. The Complainant was upset and discussed the Property.

During the telephone discussion the Complainant changed the conversation to Mr. K. It was clear to the Licensee there was animosity between the two men; it was obvious the Complainant found that working on the Property for Mr. K was rather galling. Further in the conversation it is acknowledged by both t h e Licensee and the Complainant, the Complainant made some statement to the effect someone should or would shoot Mr. K. Although there is conflict as to what was exactly said it, it is clear to the Committee the general tenor of the words was quite clear.

4.6 As a result of the statement and in view of the surrounding circumstances which the Licensee was aware of relating to the Complainants he quite properly notified his manager who in turn informed both Mr. K and the Receivers. The Licensee genuinely believed at the time of advising the Police, there was a genuine threat to Mr. K’s life and the Complainant had both the ability and experience to carry out the threat. The Receivers instructed the Licensee to advise the Police of the circumstances of the telephone conversation.

4.7 The Committee is of the view the Licensee in the circumstances and the facts surrounding this matter had no alternative other than to take the steps he did and was quite correct in doing so. The Committee cannot find any criticism of the Licensee's actions.

4.8 During the conversation of 11 November 2013 between the Licensee and the Complainant, asked the Licensee if he had told the Receivers the address of the new property they were moving too. The Licensee stated he had not passed any information onto the Receivers relating to their new address. Clearly however the Complainant did not accept the Licensee's denials and believes the Licensee did pass their new address on.

4.9 The Authority’s investigator has emailed the Receivers who have confirmed they were never told of the Complainant's new address. The Receivers in their statement to the investigator go on to state the only contact details they had for the Complainant was a cell phone number. Since the Complainants have relocated, the Receivers have attempted to obtain from the Complainants a postal address. They have also requested the address from the Complainant’s solicitor. To date however they have been unsuccessful in obtaining any new address for the Complainants.

4.10 The Committee cannot see any reason why the Receivers would or should not be open and frank with the Committee. Certainly as an absolute minimum the Committee cannot see any reason why the Receivers would not disclose they had the Complainants’ address, even if they refused to disclose how they obtained that information. The Receivers have however quite categorically stated they do not know the Complainants’ address and have been attempting to communicate with the Complainants themselves. In these circumstances, therefore, the Committee cannot come to any other conclusion, than the Licensee did not pass onto the Receivers the Complainant's new address.

4.11 The Committee therefore, having regard to all the circumstances of the case has decided no further action is required.

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.

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 Complainants (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 www.justice.govt.nz/tribunals.

Signed

Michael Vallant

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 7 July 2014