Complaint No C05556 [2015] NZREAA 153 (12 June 2015)

Last Updated: 7 March 2016

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

And

In the Matter of Complaint No: C05556

In the Matter of Licensee One

License Number: XXXXXXXX

Licensee Two

License Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 12th day of June 2015

Complaints Assessment Committee: CAC 404

Chairperson: Michael Vallant Deputy Chairperson: Sarah Eyre Panel Member: Garry Chapman

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. On 30 June 2014 the Real Estate Agents Authority (the Authority) received a complaint against Licensee One from the Complainant. Complaints Assessment Committee 302 considered that the complaint also raised issues about Licensee Two.

1.2. Licensee One is a licensed agent under the Real Estate Agents Act 2008 (the Act). Licensee Two is a licensed salesperson under the Real Estate Agents Act 2008.

1.3. The complaint relates to a property (the Property).

1.4. The details of the complaint are that the Complainant felt misled by Licensee Two about the price she could obtain for her Property. The Complainant was also concerned that she had been pressured into a sale by auction. She complained about this conduct to Licensee One and is unhappy with Licensee One’s response to her complaint.

1.5. In particular, the Complainant advised when she told Licensee Two she had previously taken her Property off the market, as she was unhappy with a price indication of $650,000.00 to

$670,000.00 by another agent; Licensee Two stated he could get “well over $700,000.00” for

her Property. However, she was then provided with offers significantly lower than what she was expecting, and the Property was advertised in a lower price bracket. The Complainant also stated she was unhappy with the signs and the open homes. The Complainant ultimately took her Property off the market and does not consider she should now be liable for the advertising costs. The advertising costs have been pursued by the Agency through a debt collector. The Complainant subsequently complained to Licensee One, as she considers Licensee One is at fault for not appropriately supervising and training Licensee Two. The Complainant considers Licensee One has not responded appropriately to her complaint, particularly as he is pursuing the payment for advertising costs, and would not accept a lower amount of $500.00 for the advertising costs.

1.6. The Complainant requested a remedy, being:

• A reduction in the amount she is to pay for advertising costs to $500.00.

1.7. The Licensees responded to the complaint against them.

1.8. In particular, Licensee One commented that he strongly refuted the complaint against him. He explained that Licensee Two underwent extensive training and was in the office almost every day for six to eight hours, during which time Licensee Two consulted Licensee One on many occasions. Licensee One also noted he had met with the Complainant about her complaint, and it appeared to him her only motivation in making the complaint was to avoid paying the advertising costs. He considered this was apparent as she threatened him with the filing of this complaint, if he did not accept a lower amount for advertising costs.

1.9. Licensee Two commented that he met the Complainant in a social setting, but being aware of a recent decision by the Authority regarding an agent who signed a client while under the influence of alcohol, he waited until a meeting the following day to sign the Complainant. Licensee Two explained he indicated a price range of mid to high $600,000.00s, but the

Complainant said she wanted more and so he suggested that if there was someone willing to pay $700,000.00 the marketing would flush them out. After the Complainant signed the Listing Authority and provided her credit card details, Licensee Two explained he started marketing the Property. The Complainant’s credit card declined twice when he attempted to debit it for the advertising costs. Licensee Two acknowledged the Complainant had expressed some concern during the marketing campaign regarding signs and the pricing of the Property, and she subsequently would not counter-sign either of the two offers received at $600,000.00 and

$620,000.00. Licensee Two explained the Complainant then said she had a price indication of

$750,000.00 written on an Agency letterhead, and alleged he had listed the Property at the wrong price. Licensee Two explained that somehow the Complainant had obtained a document from his own personal file on which he had typed his own quick reference notes about the Property, as this file went missing at an open home. Shortly after this, the Complainant took her Property off the market. Licensee Two shared the view of Licensee One that the complaint was an attempt to avoid paying for the advertising.

2. What we decided

2.1. On 18 August 2014 Complaints Assessment Committee 302(the Committee) considered the complaint and decided to inquire into it under section 78(a) of the Real Estate Agents Act 2008 (the Act).

2.2. On 3 December 2014 Complaints Assessment Committee 302 was disestablished.

2.3. The complaint was referred to Complaints Assessment Committee 404 (the Committee).

2.4. The Committee has considered the original complaint afresh and made a decision to inquire into the complaint (Licensee One and Licensee Two).

2.5. Subsequent to that decision to inquire, on 3 March 2015 the Committee held a hearing on the papers and considered all the information gathered during the inquiry.

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

2.7. 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.

3. Our reasons for the decision

3.1. The Committee concluded in relation to Licensee One:

3.1.1. There was no evidence that Licensee One failed to train or supervise Licensee Two properly;

3.1.2. The manner in which Licensee One handled the complaint was appropriate. The Committee concluded in relation to Licensee Two:

3.1.3. The evidence provided by the Complainant did not establish Licensee Two had misled

the Complainant regarding the price;

3.1.4. There was no evidence that Licensee Two had pressured the Complainant into

agreeing to an auction.

3.1.5 There was no evidence Licensee Two engaged in any unsatisfactory conduct regarding the signage for the Property or the open homes.

L icensee One

Reason One: No evidence of failure to train or supervise

3.2. The Complainant has not provided any evidence to support her complaint that Licensee One failed to train or supervise Licensee Two. This aspect of the complaint appears to have been raised because the Complainant considered Licensee Two misled her about price, and pressured her into an auction; and she attributed this to a lack of training or supervision provided by Licensee One. However, Licensee One has provided details of the training courses Licensee Two undertook and described the nature of his supervision of Licensee Two. When this evidence is weighed against the evidence provided by the Complainant, it is clear there is no actual or even circumstantial evidence to support the Complainant’s assertion that there was a lack of training or supervision of Licensee Two. The fact that we have also found that there was no unsatisfactory conduct by Licensee Two further supports our finding on this point.

Reason Two: Appropriate handling of complaint

3.3. The Complainant has alleged Licensee One did not handle her complaint appropriately; however, she has not provided any specific details of what part of the complaint handling process was not appropriate. The only specific details which appear to relate to this are that the Complainant was concerned Licensee One has continued to pursue the advertising costs debt against her. Licensee One has explained he met with the Complainant on 13 December

2013, and again on 11 February 2014 to discuss her complaint; there has been no evidence provided of anything that was not handled appropriately in the process of conducting these complaint meetings. We found the handling of the complaint was therefore appropriate, and there was nothing inappropriate about the decision by Licensee One to continue to pursue the debt. This is particularly so, given our overall finding on the evidence relating to the conduct of Licensees One and Two.

L icensee Two

Reason One: Insufficient evidence of misleading the Complainant

3.4. Licensee Two was added to this complaint because the Complainant alleged in her complaint about Licensee One that Licensee Two had misled her regarding the likely price she could receive for the Property. The evidence the Complainant provided regarding this consisted of her own assertions and a copy of a page with the Agency’s logo that stated “price indication:

$760,000 - $845,000”. In response, Licensee Two provided a copy of the Comparative Market

Analysis he had presented to the Complainant which provided an appraisal price of

$645,000.00 - $716,000.00. He also explained he had indicated in a conversation prior to signing the listing authority that he thought the market value would be mid to high $600,000’s, but if someone was out there with $700,000.00, a marketing campaign would flush them out. Licensee Two explained the document the Complainant had a copy of with the higher price indication, was part of his own personal file which he used to provide himself with a quick reminder of details about the Property, and this was his note of the Complainant’s price expectations. Licensee Two explained this file had gone missing on one of the open homes.

3.5. We have had regard to the evidence presented by the Complainant and Licensee Two, and find the evidence provided by the Complainant does not indicate on the balance of probabilities that Licensee Two misled her on price. That is because we accept the Licensee’s evidence that the document containing a price indication of “$760,000 - $845,000” was his own personal document and was not a figure he presented to the Complainant. The fact it was an internal document is apparent from the content and nature of the document, its brief, bullet point style, and the fact it contained a question mark. It is clear Licensee Two had prepared a Comparative Market Analysis for the Property and had listed and marketed the Property in accordance with the appraised price in that document. The offers that were received were within the realm of that figure, taking into account the negotiation that would be likely to have ensued if the Complainant had counter-signed one of these offers. Accordingly, the clear evidence in the Comparative Market Analysis and the subsequent listing and offers received in the same price bracket, is stronger evidence of the price indication given to the Complainant than the one page document the Complainant has referred to. Accordingly, we find the evidence does not establish that Licensee Two misled the Complainant regarding the likely price.

Reason Two: No evidence of pressuring the Complainant

3.6. The Complainant has asserted Licensee Two pressured her into agreeing to a sale by auction.

However, there is no evidence to support this assertion and it is denied by Licensee Two. Accordingly, we find that there is no evidence of Licensee Two pressuring the Complainant.

Reason Three: No unsatisfactory conduct regarding signage or open homes

3.7. The Complainant has asserted the sign erected by Licensee Two was hard to read and she was concerned the open homes were not well attended. However, it is clear the signage issue was addressed by Licensee Two at the time, and there is no evidence to support the assertion a low turnout at the open homes was a result of the conduct of Licensee Two. Accordingly, we find there is no evidence of Licensee Two undertaking unsatisfactory conduct in relation to the signage or open homes.

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

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

Sarah Eyre

Deputy Chairperson

For Complaints Assessment Committee 404

Date: 12 June 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.