Complaint No C09832 [2015] NZREAA 320 (9 November 2015)

Last Updated: 20 August 2016

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

And

In the Matter of Complaint No: C09832

In the Matter of The Licensee

License Number: XXXXXXXX

The Agency

License Number: XXXXXXXX

Decision of Complaints Assessment Committee

Decision to take no further action

Dated this 9th day of November 2015

Complaints Assessment Committee: CAC 407

Deputy Chairperson: Marjorie Noble

Panel Member: Rex Hadley

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. On 11 August 2015 the Real Estate Agents Authority (the Authority) received a complaint against the Licensee from the Complainants.

1.2. The Agency was joined as a party to the complaint under the provisions of Section 78(b) of the Act.

1.3. The Licensee is a licensed salesperson and the Agency is a licensed agent company under the

Real Estate Agents Act 2008 (the Act).

1.4. The complaint relates to two properties (the Properties).

1.5. The details of the complaint are that whilst attending an auction for the Properties the Complainants say the Licensee told everyone at the auction that he was bidding on behalf of someone he was speaking to on the phone. The Complainants say he was not speaking to anyone but making bids on behalf of a fictitious buyer to push up the purchase price.

1.6. In particular, the Complainant advised that:

a) They were able to see the Licensee’s phone which showed the “recently called” screen meaning the Licensee was not on a call;

b) The Complainants also say that the Licensee’s phone rang at one point during the auction.

1.7. The Complainant requested a remedy, being:

• To ensure the Licensee does not do the same thing again;

• To ensure the Agency is made aware of the Licensee’s conduct.

1.8. The Licensee and the Agency responded to the complaint against them.

1.9. In particular, the Licensee commented that:

a) At the auction, the Licensee was presenting bids from a genuine buyer, Mr. C (the phone bidder) with whom he was speaking to on the phone;

b) This buyer was listed on the auction buyer registration form as a phone bidder;

c) The phone bidder had earlier attended open homes and said that while he had a serious interest in the Property, he was unable to attend the auction on 5 August. The phone bidder asked if the Agency would accept a telephone bid and as a result the Licensee’s business partner sent him their Absentee Telephone Bidder form for him to complete;

d) The form was completed and witnessed, and then returned so the phone bidder was able to bid on auction night;

e) During the bidding the phone bidder had to take another call and placed the Licensee on hold. The connection failed and contact was lost between the parties;

f) The Licensee advised the auctioneer he had lost contact with the phone bidder and made two attempts to call him back. The phone bidder called the Licensee back during these attempts but by then the bidding had gone beyond what the phone bidder was

prepared to pay.

2. What we decided

2.1. On 7 September 2015 the Complaints Assessment Committee (the Committee) considered the complaint and decided to inquire into it under section 79(2)(e) of the Act.

2.2. The Committee considered the complaint also raised issues about the Agency, and under section 78(b) of the Act, decided to inquire into them.

2.3. On 14 October 2015 the Committee held a hearing on the papers and considered all the information gathered during the inquiry.

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

2.5. 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, Rule 6.3 (conduct), Rule 6.4 (not mislead), and Rule 9.2 (unfair pressure) were considered.

3. Our reasons for the decision

The Committee concluded:

a) The Licensee and the Agency were not making fictitious bids.

b) The phone bidder was a genuine registered phone bidder.

The Licensee and the Agency were not making fictitious bids

3.1. The evidence was clear that the buyer existed, and was in telephone contact during the auction with the Licensee. Contact was lost during the bidding and each party made attempts to reestablish the call, resulting in the Licensee’s phone ringing during the bidding. The Committee accepts the evidence from the Licensee and the registered phone bidder, and has no concern that the bids placed by the Licensee were not genuine. The Complainants were quite correct that they saw the Licensee’s recently called screen and that his telephone rang during the auction, but the evidence shows there was nothing untoward about this.

The phone bidder was a genuine registered buyer

3.2. The phone bidder made a statement to the Investigator supporting the Licensee’s version of events. The phone bidder had attended open homes and followed due process to enable him to place bids by telephone on auction night. There were no irregularities with the process found by the investigation. The phone bidder was not the buyer on the night, as by the time he had reestablished contact with the Licensee the bidding had moved to a point beyond which he was prepared to pay.

3.3. The Committee agreed that the evidence clearly showed that neither the Licensee nor the Agency’s conduct breached the Act, or the Rules, or was in any way inappropriate at the auction, and therefore the Committee dismissed the complaint and no further action will be taken.

4. 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 (no later than Monday, 7 December 2015) (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 ).

5. Publication

5.1. 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 Licensees, and any third parties.

5.2. 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.

5.3. 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

Marjorie Noble

Deputy Chairperson

For Complaints Assessment Committee 407

Real Estate Agents Authority

Date: 9 November 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.

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

2012 are:

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

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

Rule 9.2 A licensee must not engage in any conduct that would put a prospective client, client, or customer under undue or unfair pressure.