Complaint No C03389 [2014] NZREAA 216 (28 July 2014)

Last Updated: 1 March 2015

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

And

In the Matter of Complaint No: C03389

In the Matter of Licensee Two

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 28th day of July 2014

Complaints Assessment Committee: CAC304

Chairperson: Chris Rogers Deputy Chairperson: Stuart Rose Panel Member: Sandy Gill

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 Licensee One and Licensee Two. Both Licensees hold agent’s licences under the Real Estate Agents Act 2008 (the Act).

1.2 Licensee One worked for the Agency at the time of the alleged conduct.

1.3 Licensee Two is the Eligible Officer and Principal of the Agency.

1.4 The Complainants maintain that, after selling their home (the Property) and raising concerns about the conduct of Licensee One throughout the marketing and sales process, Licensee Two failed to address those concerns in a reasonable and professional manner.

1.5 The Complainants maintain that Licensee Two did not take their concerns seriously and failed to attend a scheduled meeting to discuss the matter with their solicitor.

1.6 The complaint was received by the Authority on 5 August 2013 and referred to a Complaints

Assessment Committee (the Committee). The Committee considered the complaint on 30

August 2013 and determined to enquire into the complaint. The Committee received and considered an investigation report on 17 April 2014.

1.7 On 29 May 2014 the Committee determined to take no further action against Licensee Two.

1.8 Investigations continue into the conduct of Licensee One and a decision is yet to be determined.

2. Material Facts

2.1 The Property was listed for sale with Licensee One and the Agency on 24 January 2013. The

Property was scheduled to be auctioned on 10 March 2013.

2.2 The auction was cancelled by the Complainants on or about 4 March 2013 and the Property listed at a fixed asking price of $759,000.

2.3 On 13 March 2013 the Complainants entered into a conditional agreement to sell the Property at $730,000. The agreement was presented by Licensee One. The agreement was terminated by the purchasers before any conditions of sale were satisfied.

2.4 The Complainants amended the asking price to $729,000 and on 17 April 2013 the Complainants entered into a second agreement to sell the Property at $715,000. The agreement was presented by Licensee One.

2.5 The second sale agreement was conditional on the purchasers selling two residential properties by 31 May 2013.

2.6 The purchasers took their properties to auction. On auction day the Complainants renegotiated

the sale price on the Property to $705,000, in order to assist the purchasers to confirm their own sales and therefore, their purchase of the Complainants’ Property. Renegotiations were facilitated by Licensee One.

2.7 The property sale settled on 28 June 2013.

2.8 Sometime after settlement the Complainants made contact with Licensee Two in order to express their dissatisfaction with the conduct of Licensee One throughout the marketing and sale process they had just completed with the Agency.

2.9 A meeting between Licensee One, Licensee Two and the Complainants, was scheduled to take place at the office of the Complainants solicitor. The meeting was to discuss the Complainants’ concerns over the conduct of Licensee One.

2.10 Neither Licensee One nor Licensee Two attended the meeting.

2.11 Licensee Two contacted the office of the Complainant’s solicitor, 10 minutes before the scheduled meeting time, to advise that she would not be attending the meeting due to a family crisis.

2.12 On 8 August 2013 the Complainants submitted a complaint to the Authority.

3. Relevant Provisions

3.1 A complaint can only be inquired into by a committee if it relates to alleged unsatisfactory conduct (section 72 of the Act) or alleged misconduct (section 73 of the Act).

Section 72 of the Act provides for “unsatisfactory conduct” and states as follows:

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;

(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 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 willful 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...

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

4. Discussion

4.1 From their initial notice to the authority, it seems that the Complainants believed that Licensee Two failed to advise them that she would not be attending the scheduled meeting between the parties – and by not doing so, clearly indicted a lack of appreciation or respect for the significance of the Complainants concerns over the conduct of Licensee One.

4.2 In response, Licensee Two claims to have informed the office of the solicitor hosting the meeting, that an unexpected family crisis prevented her from attending the meeting.

4.3 The office of the solicitor acting for the Complainants has confirmed with the Authority that Licensee Two did in fact advise her inability to attend the meeting, 10 minutes prior to the scheduled time.

4.4 No further meetings were scheduled and Licensee Two has since cooperated and responded to requests for information from the Authority, in its investigation of this complaint.

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.

5.1 The Committee has determined under section 89(2)(c) of the Act to take no further action with regard to Licensee Two’s involvement within this complaint.

5.2 Investigations continue into the conduct of Licensee One and a decision is yet to be determined.

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

Chris Rogers

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 28 July 2014