Complaint No C03944 [2014] NZREAA 44 (11 February 2014)

Last Updated: 22 November 2014

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

And

In the Matter of Complaint No: C03944

In the Matter of Licensee

Licence Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 11th day of February 2014

Complaints Assessment Committee: CAC20010

Chairperson: Marina Neylon Deputy Chairperson: Alison Wallis Panel Member: Denise Bovaird

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. The Complainants against the Licensee a licensed salesperson with the Agency.

1.2. The Complainants state that the Licensee put them under undue pressure, misguided them and failed to act in their best interests when she auctioned their property in September 2013.

1.3. The Complainants believe that their Property was undersold and hold the Licensee accountable.

1.4. The Complainants are seeking a full refund of the commission on the sale from the Agency.

2. Material Facts

2.1. The Complainants and the Licensee indicated that they were prepared to consider taking their dispute to mediation.

2.2. The Committee determined to inquire into the complaint; and pursuant to section 87 (1) of the Real Estate Agents Act 2008 (the Act), directed the parties to explore the possibility of resolving the complaint by mediation.

2.3. The Parties attended mediation on 27 November 2013. The parties settled the complaint with the assistance of the mediator.

3. Relevant Provisions

3.1. Section 87 of the Act provides

Section 87 Negotiation, conciliation, and mediation

(1) A Committee may give, in relation to any complaint received by it, a direction that, within a time or before a date fixed by the Committee, the parties both—

(a) explore the possibility of resolving, by negotiation, conciliation, or mediation,—

(i) the complaint; or

(ii) any issues relating to the complaint as the Committee specifies; and

(b) report to the Committee.

(2) The Committee must not give a direction under subsection (1) if it considers that such a direction—

(a) would not contribute constructively to resolving the complaint; or

(b) would not, in all the circumstances, be in the public interest; or

(c) would undermine the urgent nature of the complaint.

(3) If the parties reach an agreed settlement in relation to the complaint or any issue involved in the complaint, the Committee—

(a) may record the terms of the settlement; and

(b) may, by consent of the parties, declare all or some of the terms of the settlement to be all or part of a final determination of the complaint by the Committee.

(4) No evidence is admissible in any court or before any person acting judicially or before the Committee or before the Disciplinary Tribunal of any information, statement, or admission disclosed or made to any person in the course of any negotiation, conciliation, or mediation conducted, in accordance with a direction given under subsection (1), for the purpose of resolving a complaint or any issue involved in a complaint.

(5) Nothing in this section prevents the discovery or affects the admissibility of any evidence (being evidence which is otherwise discoverable or admissible and which existed independently of any negotiation, conciliation, or mediation conducted under a direction given under subsection (1) for the purpose of resolving a complaint or any issue involved in a complaint) merely because the evidence was presented in the course of the negotiation, conciliation, or mediation.

4. Discussion

4.1. The Mediation Report provided to the Committee records that the parties have settled the complaint on agreed terms.

5. Decision

5.1 The Committee declares, in accordance with the Mediation Report, that the terms of settlement be a final determination of this complaint.

5.2 The Committee met to consider the complaint and pursuant to section 79(2)(e) determined to inquire into it. Pursuant to section 80(2) the Committee has, at its discretion, decided to take no further action with regard to 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

Marina Neylon

Chairperson

Complaints Assessment Committee

Real Estate Agents Authority

Date: 11 February 2014