Holmes - Complaint No C08015 [2015] NZREAA 248 (10 September 2015)

Last Updated: 17 May 2016

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

And

In the Matter of Complaint No: C08015

In the Matter of Kirstie Holmes

License Number: 20028078

Anthony (Tony) Quayle

License Number: 10001010

Hastings McLeod Limited

License Number: 10021240

Decision of Complaints Assessment Committee

Decision finding unsatisfactory conduct asking for submissions on orders

Dated this 10th day of September 2015

Complaints Assessment Committee: CAC 402

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

Complaints Assessment Committee

Decision finding unsatisfactory conduct asking for submissions on orders

1. The Complaint

1.1. On 23 April 2015 the Real Estate Agents Authority (the Authority) received a complaint against Kirstie Holmes (Licensee One), Anthony (Tony) Quayle (Licensee Two), and Hastings McLeod Limited (the Agency) from the Complainant.

1.2. Licensees One and Two are both licensed salespersons under the Real Estate Agents Act 2008 (the Act) and at the time of conduct were engaged by Hastings McLeod Limited t/a Property Brokers - Hastings McLeod Ltd (the Agency). At the time of conduct Licensee One was unlicensed and being supervised by Licensee Two.

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

1.4. The details of the complaint are that the Licensees misled the Complainant in her purchase of the Property, by failing to check the information provided by the vendors regarding their Earthquake Commission (EQC) payout and insurance status. The Complainant subsequently discovered the payout to the vendors was from their insurance company rather than the EQC; the payout amount was substantially higher than advised by the Licensees; it indicated more repairs were required than shown on the EQC scope of works; and the Property was effectively uninsured.

1.5. In particular, the Complainant advised that at the time she first viewed the Property it was advertised as being insured with the Insurers - with a policy number provided - and also as “suffering some minor structural damage”. Three different EQC claim references were noted in the advertising, and the Property was being marketed on an “as is, where is” basis.

1.6. At the Complainant’s first viewing she met with Licensee One, who she states advised her the vendor had received a total EQC payout of $47,000 and that the Property was currently fully insured with the Insurer’s insurance. The Complainant also states Licensee One suggested the vendor would consider an offer around $260,000, with estimates of repairs to the damaged piling being around $40,000 to $50,000, and a value for the Property once repaired being in the vicinity of the high $300,000s. The Complainant was provided with a brochure confirming Licensee One’s statement in regard to current insurance with the Insurer.

1.7. In view of the information provided by Licensee One, with regard to insurance status and the vendor’s payout amount, the Complainant made an unconditional offer for the Property which was facilitated by Licensee Two at the Agency’s office. Licensee Two confirmed the insurance and payout information conveyed by Licensee One and also provided the Complainant with a copy of the “Earthquake Claim & Insurance Information” declaration, which the Agency had required the vendor to complete. This form stated the Insurer as the insurer and noted claims as “settled”. The Complainant’s offer was for $250,000 based on the information received, but was negotiated as part of a multi-offer to $255,000 and accepted by the vendors, with settlement to be two days later.

1.8. After completing the purchase of the Property, the Complainant rang the Insurer in order to arrange insurance for the Property on her own behalf, but was advised the house was not insured and under the “Cash Settlement and Assignment Agreement” accepted by the

vendor, could not be until all the damaged parts that had been paid out for had been fully repaired and reinstated. In addition, she received information from the Insurer that the vendor had been paid out $261,221.74, which after several assessments had been carried out, was a figure the Insurer believed to be an accurate assessment of the damage and repair cost – a figure grossly different from that indicated as a repair cost by the Licensees. Due to the circumstances the Complainant found it very difficult to insure the Property and now has very limited insurance that excludes any existing damage. This has also affected her ability to obtain finance and she states had she known the correct information regarding the damage and payout to the vendors, she would not have purchased the Property.

1.9. The Complainant requested a remedy, being:

• That due to the string of miscommunications, verbally and in writing, the Agency, in good faith purchase the Property back from her; or

• She is compensated the difference between the price she paid for the Property versus what she would have been prepared to pay had she received accurate information in relation to the Property’s status.

1.10. Licensee One: Licensee One responded to the complaint against her. In particular, Licensee

One commented that:

(a) Licensee One had read the response of her sales manager, Licensee Two, and agreed with the content. Licensee Two managed the listing and drew up the agreements for sale and purchase, as Licensee One was new and still waiting for her license to be finalised.

(b) During Licensee One’s first contact with the vendor as a prospective listing, Licensee One stated the vendor advised her of his reasons for wanting to sell the Property, which was vacant at that time, and that he had taken the earthquake payout he was offered and walked away from the Property. There was no mention of the value of the payout. The vendor explained he was looking for around $330,000 for the Property and that the Scope of Works was for $47,000.

(c) Licensee One stated during the Complainant’s initial viewing of the Property, Licensee One provided the Complainant with a copy of the EQC Scope of Works and Geotechnical reports supplied by the vendor, and discussed the remedial work required. Licensee One advised the Complainant a number of builders had looked at the Property and the consensus of opinion was it required approximately $80,000 to

$100,000 spent on repairs. The Complainant asked Licensee One if the Property was insured and the Licensee responded “as far as I’m aware. The vendor has indicated that it is insured”, but cannot recall if she indicated who it was insured with. Licensee One also discussed with the Complainant what the Property’s value might be when the works had been completed, and recalls mentioning a figure around $395,000.

(d) During the viewing the Complainant advised Licensee One that she knew how the process worked as she was a real estate agent and had a franchise in the city. Licensee One understood from the conversation that the Complainant was in charge of her own real estate branch.

(e) The Complainant appeared pleased with the Property and asked Licensee One for an appointment later that day to make an offer for it, which Licensee One facilitated.

1.11. Licensee Two: Licensee Two responded to the complaint against him. In particular, Licensee

Two commented that:

(a) At the time of listing the Property the vendor was asked by Licensee Two about insurance, and responded that the Property was insured with the Insurer and that an

EQC and insurance payout had been made but were not being assigned to the new purchaser. These statements were recorded on an “Earthquake Claim and Insurance Information” form signed by the vendor at the time of listing. Licensee Two also asked the vendor to complete a “Disclosure by Agent - Consent and Acknowledgement by Vendor” form on which the vendor declared that neither the garage nor the bathroom upgrades required consent, and that the Scope of Works and Geotechnical reports were available.

(b) Licensee Two stated the Complainant was advised the Property was insured with the Insurer, and that the vendor had taken the EQC payout but this would not be passed on to the prospective purchaser. The EQC and Geotechnical reports were passed to the Complainant as having been sourced from the vendor. The EQC Scope of Works showed a settlement figure of $47,429.93 less excess.

(c) Licensee Two advised the sales brochure for the Property stated “as is, where is”, and that the owners had invested the insurance payout in another venture and would take this into consideration when accepting an offer. The brochure also stated the Insurer as the insurer with the policy number and EQC claim numbers provided. Licensee Two pointed out a disclaimer on the brochure advised all interested parties to make their own enquiries and satisfy themselves in all respects. Licensee Two stated all potential purchasers spoken to at viewings were advised to conduct extensive due diligence as the risks of buying “as is, where is” were large, and included the fact lenders will only lend on the land value and insurance will exclude the damaged area until repaired. Licensee Two noted that at the time of making her offer the Complainant stated she had sold numerous “as is, where is” properties in the city and they were selling a little over land value. Licensee Two had been made aware by Licensee One that the Complainant was a very experienced real estate agent who had her own real estate office in the city.

(d) A sale and purchase agreement was drawn up by Licensee Two, with the further terms of sale acknowledging the vendor had received an EQC payout which was not transferring to the purchaser. Following the completion of the sale and purchase agreement, Licensee Two advised the Complainant there were other interested parties and a multi-offer form was signed. Two offers were presented to the vendors; the Complainant’s offer was countered with an increase of $5,000, the Complainant chose to accept the counter offer, and the agreement was signed on 20 December 2014 with settlement occurring 22 December 2014.

1.12. The Agency: Mr. X, Licensee Agent for Hastings McLeod Ltd, responded to the complaint against them. In particular, the Agency commented that:

(a) The Agency has a number of checks and balances in place to ensure compliance with the Act. Relevant to the complaint these measures include:

i. All documentation pertinent to listings being held electronically on the Agency’s

Property Suite system;

ii. The listing/sale documentation being available to all staff;

iii. Supervisors and Mr. X, as Licensee Agent, having access to and checking all the

company listings/sales to ensure the correct procedures are being adopted and to fulfil supervisory obligations;

iv. Initiating disclosure documentation to ensure pertinent information from the vendor is relayed to prospective purchasers. This form also provides for licensees to make disclosure of any matter falling under Rule 10.7;

v. Adopting industry standards and sourcing all legally obtainable documentation to support assertions made on behalf of the Agency.

2. What we decided

2.1. On 13 May 2015 the Complaints Assessment Committee (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 10 August 2015 the Committee held a hearing on the papers and considered all the information that had been gathered during the inquiry.

2.3. The Committee found Licensee One, Licensee Two, and the Agency have engaged in unsatisfactory conduct under section 89(2)(b) of the Act.

3. Our reasons for the decision

Licensee One:

The Committee found, pursuant to section 72 of the Act, that Licensee One’s actions would reasonably be regarded by agents of good standing as being unacceptable. The decision was also made with reference to the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012, rule 5.1 (skill, care, competence and diligence) and rule 6.4 (not to mislead).

3.1. The Committee concluded:

(a) Licensee One failed to verify the insurance cover for the Property was still valid;

(b) Licensee One failed to clarify the amount of the payout received by the vendors and the source of it;

(c) Licensee One passed on verbal information in regard to repair costs with no evidence of those costs;

(d) Licensee One estimated a value for the Property in a repaired state without supplying evidence to support that value.

Reason One: Failure to verify insurance

3.2. Licensee One was informed by the vendor that the Property was insured by the Insurer, and the vendor signed the “Earthquake Claim and Insurance Information” stating the Insurer as their insurer and detailing the policy number. Generally in the city’s real estate market an “as is, where is” property is sold without insurance, and the Committee is aware Licensee One was cautioning prospective buyers to undertake their own extensive checks in regard to the Property; as any damaged parts of the Property would not be covered by insurance until repaired. The Committee is consequently seriously concerned there is no evidence supplied that Licensee One directly asked the question of the vendors as to what damage had been paid out for and to what extent the insurance cover had been affected. The “Earthquake Claim and Insurance Information” form expressly allows potential purchasers to contact the vendors’ insurance company for the purpose of arranging their own insurance, but Licensee One does not appear to have requested the same privilege in order to independently verify flawed information that was subsequently passed to prospective purchasers, including the Complainant, both in print and verbally, and ultimately relied on in a sale and purchase agreement. Although it was incumbent on the Complainant to make her own enquiries with regard to ongoing insurance on the Property after purchase, as no assumption can be made that any existing insurance will be continued with a new owner, the Complainant did not

make those enquiries prior to presenting an unconditional offer. It seems the written and verbal assurances of Licensee One gave the Complainant confidence, as it appeared to her that the Property itself was still insurable. The Committee does not consider Licensee One intended to mislead the Complainant, but by her lack of skill, care, competence, and diligence (a breach of rule 5.1) in verifying the insurance status of the Property, she has ultimately misled the Complainant and consequently breached rule 6.4.

Reason Two: Failure to clarify payout

3.3. Licensee One was informed at her first meeting with the vendors that they had taken a payout and walked away from the Property; although no mention was made of the value of the payout. The vendor supplied the Licensee with a copy of the Scope of Works - a document compiled by EQC following their inspection and intended as the basis of a repair strategy should EQC be the repairer - with a cost for the repairs in the vicinity of $47,000. Neither the vendors nor the Licensees claim, in the evidence provided to the Committee, to have discussed the figure the vendors had received as a payout, and it would appear the Scope of Works figure has been assumed by the Licensees as the amount paid, because the vendor indicated the payment was from EQC. Although the sale method was to be “as is, where is”, which generally means no insurance and no assignment of any EQC or insurance claims or proceeds, Licensee One should have asked the question of the vendors as to how much had been paid out and by whom. Although this information was not to be necessarily shared with prospective purchasers, it was highly important for Licensee One to know, as it not only indicated the true level of repairs required to reinstate the Property but also, if the payout had been “over cap” (EQC have a limit for their payment liability of $100,000 + GST for any one claim) and had been passed to the Insurer for payment, the insurance for the Property was most likely cancelled, as turned out to be the case.

3.4. The vendors made it clear the claims were settled, they were “selling as is”, and may not have wanted to disclose the amount of their payout, but the Committee considers Licensee One

should have either established if the payment had been under or over cap, so as to ensure correct information if they were intending to pass that information on to prospective purchasers. Alternatively, they should have worked entirely on the accepted “buyer beware” basis of an “as is, where is” sale and not passed any information to clients on the status of the Property. It was not until 15 January 2015 - after the Complainant had been informed by the Insurer that the vendors had been paid $261,221.74, being a figure the Insurer considered an accurate assessment of the damage and repair costs - that Licensee One queried the vendor about the insurance status and the vendor clarified what had actually happened; stating he had not settled with EQC, but had been paid out by the Insurer, which had taken on the EQC claim. He said he had explained this at the time of the sale. Again he provided no settlement figure.

3.5. The Committee considers the vendors did exacerbate the problem by not clarifying the payment and insurance status when printed and online information was produced, and by signing a sale and purchase agreement acknowledging they had accepted a payout from EQC, which was incorrect. However, by not using skill and care in asking the necessary questions to ensure correct information, and subsequently passing incorrect information to prospective purchasers, the Committee considers Licensee One has caused confusion and ultimately misled prospective purchasers, including the Complainant. In so doing Licensee One has breached rules 5.1 and 6.4.

Reason Three: Repair costs

3.6. Licensee One appears, from evidence in the papers, to have had pieces of information regarding repairs and costs from various sources, including the Scope of Works, the vendors, and builders commissioned by prospective purchasers. Although from her written statements, the Licensee appears to have made it clear to the Complainant that the estimates were from third parties and the Complainant should carry out her own due diligence, the figures mentioned, in line with the copy of the Scope of Works supplied and the purported payout amount to the vendors, may well have led the Complainant to form an unrealistic estimate of the extent of the damage to the Property and the potential cost of repairs; which in turn, would have affected her decision to offer for the Property at the eventual price. The Committee considers Licensee One should not have offered third party, unverifiable information in regard to repair costs to the Complainant in an “as is, where is” sale situation. The Committee considers Licensee One’s conduct in this regard as misleading and a breach of rule 6.4.

Reason Four: Estimated value

3.7. The Complainant claims it was inappropriate for Licensee One to quote what she believed the Property could be worth once it had been completed, as this had a definite influence on the level of her offer. Licensee One confirms in her statement she did estimate a value for the Property with the repair work completed in the vicinity of $395,000. This figure was possibly influenced by a statement made by the vendor at the time of listing that he had had a value from a local real estate company in early 2014 of $400,000. Without any comparable sales data to verify her position, and with the repair work being relatively unknown in an “as is, where is” situation, the Committee considers Licensee One’s statement to be unsubstantiated and potentially misleading to the Complainant, who, Licensee One would be aware, had not had time to undertake due diligence at that point. This misleading conduct is a breach of rule

6.4.

Licensee Two:

The Committee found, pursuant to section 72 of the Act, that Licensee Two’s actions would reasonably be regarded by agents of good standing as being unacceptable. The decision was also made with reference to the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012, rule 5.1 (skill, care, competence and diligence) and rule 6.4 (not to mislead).

3.8. The Committee concluded:

(a) Licensee Two failed to verify the insurance cover for the Property was still valid;

(b) Licensee Two failed to clarify the amount of the payout received by the vendors and its source;

(c) Licensee Two provided the Complainant with an incomplete “Earthquake Claim and

Insurance Information” form.

Reason One: Failure to verify insurance

3.9. Licensee Two acted as sales manager for Licensee One due to her newness to real estate and her license still pending. In this role, Licensee Two listed the Property for sale on behalf of the Agency and was responsible for obtaining and verifying information in regard to the Property. Licensee Two states he asked the vendor at the time of listing about insurance and was told the Property was insured with the Insurer. The vendor did not disclose a payout amount to Licensee Two, and failed to fill in an amount on the “Disclosure by Agent Consent and Acknowledgment by Vendor” form. Licensee Two does not provide evidence of having questioned the vendor in respect of the payout amount, or whether or not the payment was

over cap and came from the Insurer rather than EQC, which would have raised alarm bells regarding insurance. Licensee Two points out that a disclaimer on the Property information brochure advises interested parties to make their own enquiries and satisfy themselves in all respects, and that all potential purchasers spoken to at open homes or viewings were advised to conduct extensive due diligence. The Committee is concerned that on the one hand, Licensee Two advocates a “buyer beware” stance yet on the other, provides unverified details of insurance cover and the policy and claim numbers on which prospective purchasers could reasonably expect to rely. The Committee considers Licensee Two’s conduct in respect of insurance cover was not carried out with due skill and care, as no attempt is evidenced to verify the details given by the vendor, either by contact with the Insurer or by asking direct questions of the vendor. This conduct is a breach of rule 5.1. Licensee Two’s confirmation to the Complainant of the insurance information supplied by Licensee One further misled the Complainant, being a breach of rule 6.4.

Reason Two: Failure to verify payout

3.10. As part of the listing process, Licensee Two asked the vendor to complete an “Earthquake Claim and Insurance Information“ form which asked specifically “Have you been paid out any claims?" and asked for details. The vendor answered “yes” but rather than give details wrote “settled – selling as is”. Licensee Two shows no evidence of having questioned this response or of any other questions in relation to the payout which may have alerted him to issues with insurance validity. Licensee Two and his Counsel rely on the conduit principle in relation to the payout and insurance information passed to prospective purchasers, but Licensee Two, as Licensee One’s supervisor, did not correct or question the fact when Licensee One quoted the vendor as having been paid out a sum of approximately $47,000 by EQC; a fact which had not been advised by the vendor and had not been independently verified. The Committee is aware privacy issues exclude any information from EQC being passed to anyone other than the lodger of a claim, but considers Licensee Two had a duty of care to check by direct question with the vendor if the Scope of Works figure was the payout amount, prior to advising prospective buyers that it was. Had the vendor been unwilling to disclose the actual amount, no payout figures should have been mentioned to buyers, as is often the case in an “as is, where is” sale.

3.11. The vendor, when spoken to by the investigator, denied telling the Licensees he had been paid out $47,000 by EQC. He said he was insured with the Insurer, that they had taken over the claim and paid out, and that he had told this to his agents at the time of the sale. The Committee does not find evidence of the vendor’s disclosure to the Licensees of the claim being taken over by the Insurer, but nevertheless determined Licensee Two should have checked further before confirming the payout information conveyed to the Complainant by Licensee One. The Committee determined Licensee Two’s conduct was not carried out with skill and care in respect of payout information and resulted in the Complainant being misled, being a breach of rules 5.1 and 6.4.

Reason Three: Incomplete form

3.12. The Complainant was passed a copy of the vendor’s “Earthquake Claim and Insurance Information” form at the time she met with Licensee Two to make an offer on the Property. The vendor had completed and signed a copy of this form but the Complainant was inadvertently given an incomplete and unsigned version of the form. The vendor did not specify payout amounts or details on either copy of the form, and the Committee does not consider the completed form would have been any more effective than the form the Complainant was given. However, the Complainant had a right to be given the most complete

information available to Licensee Two, and the Committee considers Licensee Two’s conduct in this respect to be lacking care and a breach of rule 5.1.

The Agency:

The Committee found, pursuant to section 72 of the Act, that the Agency’s actions would reasonably be regarded by agents of good standing as being unacceptable. The decision was also made with reference to section 50 of the Act (salespersons must be supervised).

The Committee concluded:

(a) The Agency failed to properly supervise and manage Licensees One and Two.

Reason One: Supervise and manage

3.13. Mr. X, on behalf of the Agency, states in his response that “We adopt industry standard and source all legally obtainable documentation to support assertions that we make”. In this case assertions were made that could have been verified with legally obtainable documents but were not. Had the vendors been paid out by EQC, as was assumed by the Licensees, they would have had an Earthquake Claim Settlement letter which would have verified the amount paid to them by EQC, and which the vendor may have made accessible to the Licensees. The Licensees or Agency did not ask for this letter. As the damage to the Property had actually been deemed “over cap” and paid out by the Insurer, there was no settlement letter from EQC, but the vendors had granted permission for prospective purchasers to use their policy number to access information from the Insurer for future insurance. Had Licensee One or Licensee Two requested the same privilege of the vendors - which they would have had no reason to deny - the Licensees would have been correctly informed from the start of the sale process of the Property’s insurance status and potentially the vendors’ payout details; as the Complainant was when she enquired after the sale had completed. The Licensees or Agency did not make that request of the vendors, although the Committee notes the Agency has now amended its Earthquake and Insurance disclosure documentation to authorise the release of Insurance and EQC information to the Agency.

3.14. The Committee considers the Agency failed to properly supervise and manage Licensees One and Two, by not checking Agency procedures were adhered to and not checking documentation relating to the Property was factually correct before being passed to prospective purchasers. The Committee accepts the Licensees’ and Counsel’s point that the timeframe of the Complainant’s offer precluded a proper assessment or due diligence being completed by her professional advisers, but considers had the Complainant been informed of the correct insurance and payout details, she may not have made an offer or may have offered at a lesser amount. Also, had the marketing been a straight “as is, where is” with no insurance and no claims or payouts assigned or advised, the Complainant would have had no option but to undertake due diligence to obtain information or to have carried the liability herself. The Committee considers, in their desire to facilitate a sale, Licensee One and Licensee Two have made assumptions in respect of the Property, which the Agency’s supervision has failed to detect or correct and which ultimately has misled the Complainant. In respect of this, the Committee finds the Agency has failed to properly supervise and manage Licensee One and Licensee Two, and has breached section 50 of the Act.

4. Request for submissions on orders

4.1. The Committee will conduct a separate hearing on the papers to decide what orders, if any, should be made under section 93 of the Act. Refer to the Appendix of this decision.

4.2. The Complainant is to file submissions (if any) on what orders should be made within ten working days from the date of this decision. These submissions, if any, will then be provided to the Licensees, with a timeframe for filing final submissions.

4.3. The Committee requires the CAC Administrator to obtain a record of any previous disciplinary decision in respect of the Licensees and, if any such decision exists, provide it to the Committee.

5. What happens next

5.1. The Committee will consider all submissions and issue a decision on orders.

Your right to appeal

5.2. The Committee considers that the 20 working day appeal period does not commence until it has finally determined this complaint by deciding what orders should be made, if any.

Publication

5.3. The Committee has deferred making any decision on publication until its hearing to decide what orders, if any, should be made.

Signed

Jane Ross

Panel Member

For Complaints Assessment Committee 402

Real Estate Agents Authority

Date: 10 September 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 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.

Section 93 Power of Committee to make orders

(1) If a Committee makes a determination under section 89(2)(b), the Committee may do one or more of the following:

(a) make an order censuring or reprimanding the licensee;

(b) order that all or some of the terms of an agreed settlement between the

licensee and the complainant are to have effect, by consent, as all or part of a final determination of the complaint;

(c) order that the licensee apologise to the complainant; (d) order that the licensee undergo training or education;

(e) order the licensee to reduce, cancel, or refund fees charged for work where that work is the subject of the complaint;

(f) order the licensee:

(i) to rectify, at his or her or its own expense, any error or omission; or

(ii) where it is not practicable to rectify the error or omission,

to take steps to provide, at his or her or its own expense, relief, in whole or in part, from the consequences of the

error or omission;

(g) order the licensee to pay to the Authority a fine not exceeding $10,000 in the case of an individual or $20,000 in the case of a company;

(h) order the licensee, or the agent for whom the person complained about works, to make his or her business available for inspection or take advice in relation to management from persons specified in the order;

(i) order the licensee to pay the complainant any costs or expenses incurred in respect of the inquiry, investigation, or hearing by the Committee.

(2) An order under this section may be made on and subject to any terms and conditions that the Committee thinks fit.

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 50 Salespersons must be supervised

(1) A salesperson must, in carrying out any agency work, be properly supervised and managed by an agent or a branch manager.

(2) In this section properly supervised and managed means that the agency work is carried out under such direction and control of either a branch manager or an agent as is sufficient to ensure—

(a) that the work is performed competently; and

(b) that the work complies with the requirements of this Act.

The relevant provisions from the Real Estate Agents Act (Professional Conduct and Client Care) Rules

2012 are:

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

Rule 6.4 A licensee must not mislead a customer or client, nor provide false information, nor withhold information that should by law or fairness be provided to a customer or client.