Complaint No C06683 [2015] NZREAA 128 (19 May 2015)

Last Updated: 21 February 2016

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

And

In the Matter of Complaint No: C06683

In the Matter of The Licensee

License Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 19th day of May 2015

Complaints Assessment Committee: CAC402

Chairperson: Marjorie Noble Deputy Chairperson: Deborah Clapshaw Panel Member: Jane Ross

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. On 28 November 2014 the Real Estate Agents Authority (the Authority) received a complaint against the Licensee from the Complainant.

1.2. On 18 December 2014 Complaints Assessment Committee 402 (the Committee) considered the complaint and decided to inquire into it under section 78(a) of the Real Estate Agents Act

2008 (the Act).

1.3. Subsequent to that decision to inquire, the Committee held a hearing on the papers and considered all the information that had been gathered during the inquiry.

1.4. The Licensee is a licensed salesperson under the Real Estate Agents Act 2008 (the Act).

1.5. The details of the complaint are that the Complainant contacted the Licensee after receiving a flyer from him advertising an obligation free appraisal. The Complainant states the Licensee was very pushy and tried to sign up the Property as a listing. The Complainant advised the Licensee she wanted to contact the agent who had sold her the Property before she made a decision as she felt a sense of obligation. The Complainant did then list with the other agent.

1.6. In particular the Complainant states that following the initial appraisal the Licensee attended the Complainant’s business address with a listing agreement saying that he had an appointment with her to list the Property. The Complainant did not recall making an appointment with him but advised him at that time that she had already listed the Property with the other agent.

1.7. The Complainant says the Licensee subsequently contacted her on three occasions to enquire as to how the sale was going, and that when she advised him the Property had been sold he commented on the price and that it was too low. The Complainant also indicated the Licensee was derogatory in respect of the other agent.

1.8. The Complainant alleges the Licensee also asked about progress in the sale of her business and indicated she was messing the business broker around and should be accepting an offer from him. The Complainant did not give the Licensee further information and she states at this point he told her to “stuff it up her bum” and hung up.

1.9. The Complainant made the complaint pursuant to Rule 6.3 of the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012, and Section 72 (unsatisfactory conduct) of the Real Estate Agents Act 2008.

1.10. The Complainants seek a remedy of acknowledgement by the Licensee that his behaviour was rude and unprofessional.

1.11. The Licensee responded to the complaint against him.

1.12. In particular, the Licensee commented that he first met the Complainant at the Property on

22 October 2014 in response to a request from her for an appraisal of the Property. This

request was generated by a flyer the Complainant had received from the Licensee some time earlier. The Licensee was accompanied to the appraisal by a colleague, Mrs. M.

1.13. The Licensee believes the appraisal meeting went well and the Complainant indicated she would like to list the Property with the Licensee but that, as a courtesy, she would first meet with the agent who had originally sold her the Property. The Licensee states that an appointment was made for the Licensee to visit the Complainant at her business, on Monday

27 October 2014 in order to sign the listing details, with the Complainant detailing the address and directions to find it to the Licensee.

1.14. The Licensee states a further conversation ensued during which the Complainant also expressed an interest in selling her business. The Licensee asked if she would like to be phoned by a contact of his who specialised in selling that type of business and the Complainant agreed to be contacted.

1.15. The Licensee indicated to the Complainant he would pre-fill out the listing authority to save time at the appointment on 27 October and asked the Complainant to contact him if there were any changes to the arrangement.

1.16. The Licensee subsequently attended the Complainant’s business, as agreed, on 27 October only to be told by the Complainant that she had already listed the Property with the other agent. The Licensee states the Complainant appeared to have forgotten about her appointment with him and, when reminded about the details, she apologised abruptly and indicated he should leave.

1.17. The Licensee states he has no record or recollection of phoning the Complainant as alleged during the time the Property was on the market. He does agree he made contact with her some time in late November as a normal follow up call at which time the Complainant advised him the Property had been sold. The Licensee says he enquired as to the sale price and commented the price was below his appraisal range.

1.18. The Licensee agrees that at this time he mentioned the business broker who he had referred to in connection with the sale of the Complainant’s business, and the fact that the broker had also been unable to help the Complainant with a sale. The Licensee states that at this point the Complainant seemed to take exception to him and readdressed the appointment of 27

October saying she had not agreed to the appointment and she felt the Licensee was pushy. The Licensee contends that he briefly reiterated the facts as he saw them and then chose to end the conversation as he felt it was going nowhere. He states that his parting words were “so that’s the end of this one.”

2. What we decided

2.1. On 13 April 2015 the Committee held a hearing on the papers and considered all the information gathered during the inquiry.

2.2. The Committee has decided to take no further action on the complaint.

2.3. This decision was made under section 89(2)(c) of the Act. The decision was also made with reference to the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012 in particular 6.3.

3. Our reasons for the decision

3.1. The Committee considers on evidence provided that the Licensee acted in a professional manner at the initial appraisal and did not exert undue pressure on the Complainant to obtain the listing.

3.2. The Complainant accepts she probably did in fact make an appointment to meet with the

Licensee regarding listing the Property on 27 October 2014.

3.3. Two of the three alleged phone calls to the Complainant by the Licensee are not substantiated by evidence and neither are the suggested derogatory remarks in respect of the other agent.

3.4. The Licensee agrees he did address the matter of the Complainant’s business sale but the Committee considers this to be a standard real estate procedure as the referral was to a contact of the Licensee.

3.5. Based on the papers before it, the Committee prefers the evidence of the Licensee in respect of the statement made to the Complainant at the end of their last conversation.

Reason One: Initial appraisal

3.6. The Licensee attended the initial appraisal with a colleague whose statement confirms the Licensee’s version of events. The Complainant seemed happy with the appraisal meeting and willingly made an appointment for the follow up giving detailed directions to the Licensee, and then continuing the meeting by raising her intention to also sell her business and asking advice in respect of that. The Committee considers that this is not the action of someone who was feeling pressured at that point.

Reason Two: Appointment made

3.7. The Licensee’s diary shows the appointment time and address for 27 October and in the Complainant’s response she accepts she probably did make the appointment and forgot to cancel it when she listed with the other agent. She did offer an apology for this.

Reason Three: Alleged phone calls

3.8. The Licensee is adamant that he did not make, nor had any reason to make, the two phone calls to the Complainant during the listing period. Neither the Complainant nor the Licensee can offer evidence in support of their statements. However, regardless of whether or not the calls were made by the Licensee, the Committee does not consider that standard follow up calls from a licensee to establish the status of a property that they had appraised, would constitute a breach of conduct. The comment made by the Licensee that the sale price was less than his appraisal was a matter of fact and the alleged derogatory remarks made in the phone call from the Licensee, after the Property had been sold, are again unsubstantiated in the evidence before the Committee.

Reason Four: Complainant’s business sale

3.9. The Complainant indicated she was unhappy discussing her business sale details with the Licensee and that she felt pressure may have been applied as the Licensee stood to gain financially from a sale made to the Licensee’s broker contact. The Licensee was clear that there is not, and has never been, a financial arrangement with his contact, merely a mutual referral system in which payment has never been involved. As the referral to the broker had been made by him, the Committee considers some reference to the progress of the sale by the Licensee was not inappropriate.

Reason Five: Rude comment

3.10. The Licensee’s version of the alleged comment has been verified by his colleague, Mrs. M, who has signed a statement agreeing with the Licensee that he definitely did not tell the Complainant to “stuff it up her bum.” The Complainant may have felt stressed by events surrounding the sale of the Property and her business at that time and simply misheard the Licensee’s comment, however the Committee considers on evidence that the Licensee did not make the comment alleged by the Complainant.

4. What happens next

Your right to appeal

4.1. If you are affected by this decision of the Committee, you may appeal in writing to the Real Estate Agents Disciplinary Tribunal (the Tribunal) within 20 working days after the date of this decision. Your appeal must include a copy of this decision and any other information you wish the Tribunal to consider in relation to the appeal. Refer to Appendix section 111.

4.2. For further information on filing an appeal, read Guide to Filing an Appeal at M inistry o f

Justice-Tribunals ( ww w.justice. go v t.nz/ tribunals ) .

Publication

4.3. At the Committee’s discretion, the decision will be published without the names or identifying details of the Complainant (including the address of the Property), the Licensee and any third parties.

4.4. The Authority will publish the Committee’s decision after the period for filing an appeal has ended, unless the Tribunal receives an application for an order preventing publication. The Authority will not publish the Committee’s decision until the Tribunal has made a decision on the application.

4.5. Publishing the Committee’s decision supports the purpose of the Act by ensuring that the disciplinary process remains transparent, independent and effective. The Committee also considers that publishing this decision helps to set industry standards and that is in the public interest.

Signed

Jane Ross

Panel Member

For Complaints Assessment Committee 402

Real Estate Agents Authority

Date: 19 May 2015

Appendix 1: Relevant provisions

The Real Estate Agents Act 2008 provides:

Section 89 Power of Committee to determine complaint or allegation

(1) A Committee may make one or more of the determinations described in subsection (2) after both inquiring into a complaint or allegation and conducting a hearing with regard to that complaint or allegation.

(2) The determinations that the Committee may make are as follows:

(a) a determination that the complaint or allegation be considered by the

Disciplinary Tribunal:

(b) a determination that it has been proved, on the balance of probabilities, that the licensee has engaged in unsatisfactory conduct:

(c) a determination that the Committee take no further action with regard to the complaint or allegation or any issue involved in the complaint or allegation.

(3) Nothing in this section limits the power of the Committee to make, at any time, a decision under section 80 with regard to a complaint.

Section 111 Appeal to Tribunal against determination by Committee

(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 the notice given under section 81 or 94.

(2) The appeal is by way of written notice to the Tribunal of the appellant's intention to

appeal, accompanied by—

(a) a copy of the notice given to the person under section 81 or 94; and

(b) any other information that the appellant wishes the Tribunal to consider in relation to the appeal.

(3) The appeal is by way of rehearing.

(4) After considering the appeal, the Tribunal may confirm, reverse, or modify the determination of the Committee.

(5) If the Tribunal reverses or modifies a determination of the Committee, it may exercise any of the powers that the Committee could have exercised.

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 be regarded by agents of good standing as being unacceptable.

Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012

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