Najib - Complaint No C04914 [2015] NZREAA 349 (30 July 2015)

Last Updated: 1 October 2016

In the Matter of	Part 4 of the Real Estate Agents Act 2008
And
In the Matter of	Complaint No: C04914
In the Matter of	Enayatullah Najib
	Licence Number: 100006880

Decision of Complaints Assessment Committee

Decision on Orders

30 July 2015

Complaints Assessment Committee: CAC 403

Chairperson: Susan D’Ath

Deputy Chairperson: Amelia Bardsley

Complaints Assessment Committee

Decision on orders

1. Decision on orders

1.1. On 27 May 2015 the Complaints Assessment Committee (the Committee) found Enayatullah Najib (Licensee Najib) guilty of unsatisfactory conduct under section 89(2)(b) of the Real Estate Agents Act 2008 (the Act).

1.2. The Complainant and Licensee were given the opportunity to make submissions to the

Committee on orders.

1.3. The Committee has received and considered submissions from both the Complainant and

Licensee Najib.

2. Orders

2.1. Having made a finding of unsatisfactory conduct against the Licensee, the Committee decided to order that:

(a) Licensee Najib is censured pursuant to section 93(1)(a); and

(b) Licensee Najib is to pay a fine of $2,000.00 to the Authority within 21 working days from the date of this decision pursuant to section 93(1)(g).

3. Our reasons

3.1. The Complainant’s penalty submission focused largely on elements of the initial complaint on which the Committee made no finding against Licensee Najib. In that regard those submissions were of limited assistance to us.

3.2. Licensee Najib made clear and helpful submissions on penalty. He has provided us with proof of the further education he is taking in working towards his manager’s licence with the aim of eventually achieving an agent’s licence. He has accepted the finding of the Committee that he breached the Act in the manner in which he failed to fully comply with the rules set out in sections 134 and 135 of the Act.

3.3. We have noted the submission of the Complainant that he believes Licensee Najib acted with the intention to deliberately deprive the Agency of commissions. In our earlier decision we recorded that we found no evidence to support that suggestion. There is clearly a level of rancor between the Complainant and Licensee Najib, which we are informed, includes current litigation.

3.4. Licensee Najib in his submission noted that the complaints were not made by the vendors of the properties in question. With respect, it is hardly surprising they would be unconcerned by the breach given that they were not charged any commission.

3.5. We consider that when he failed to strictly comply with the rules set out in the Act, which apply when a licensee or related persons seeks to purchase a property which is listed with the

agency they are engaged by, Licensee Najib acted carelessly. We could not, on the evidence, conclude that there was any deliberate wrongdoing.

3.6. To protect consumers, sections 134 and 135 of the Act sets out strict requirements when licensees or related persons are buying property. It recognises that consumers could be placed at risk of very real financial loss or exploitation from unscrupulous agents were there not the protection of disclosure which the Act requires. As an indication of how serious these rules are, where a licensee does not comply the sale can be voided by the vendor. In our view there is no excuse for a licensee failing to follow the rules and strictly comply with these provisions of the Act.

3.7. Accordingly, we have imposed a censure and a fine on Licensee Najib. In view of his being engaged in ongoing industry education and his acceptance of fault in the matter, and our belief that he was careless rather than deliberately did wrong, we do not consider any other penalty warranted.

3.8. We have made an order for publication of our decision. We have considered Licensee Najib’s submission that publication of his name would be out of proportion with the findings made against him. We disagree. Publication serves a wider role of educating the industry as to what standards are expected and it is appropriate that the industry and the public be made aware of the importance of compliance with the sections 134 and 135 of Act. In addition, because of the ongoing disputes between the parties, we think the public interest is better served by having our decision publically available.

Principles considered

3.9. When determining whether or not to make an order under Section 93(1), the Committee has also had regard to the functions which the imposition of a penalty usually must serve in professional disciplinary proceedings.

a. promoting and protecting the interests of consumers and the public generally (section

3(1));

b. maintaining professional standards;

c. punishing offences;

d. rehabilitating the professional.

3.10. The Committee acknowledges that, when making an order under Section 93, the order/s made must be proportionate to the offending and to the range of available orders.

Promoting and protecting the interests of consumers and the public

3.11. Section 3(1) of the REAA sets out the purpose of the legislation. The principal purpose of the Act is "to promote and protect the interests of consumers in respect of transactions that relate to real estate and to promote public confidence in the performance of real estate agency work."

3.12. One of the ways in which the Act states it achieves this purpose is by providing accountability through an independent, transparent and effective disciplinary process (Section 3(2)).

Maintaining professional standards

3.13. This function has been recognised in professional disciplinary proceedings involving other

professions (for example, in medical disciplinary proceedings: Taylor v The General Medical Council (1990) 2 A11 ER 263; and in disciplinary proceedings involving valuers: Dentice v The Valuers Registration Board [1992] 1 NZLR 720).

3.14. Although different professions, use different descriptions of the nature of the unprofessional or incompetent conduct that will attract disciplinary charges, there is a common thread of scope and purpose. The aim is to enforce a high standard of propriety and professional conduct. Professions seek to:

• Make sure that no person unfitted because of his or her conduct is allowed to practise the profession in question.

• Protect both the public and the profession itself against persons unfit to practice.

• Enable the profession or calling, as a body, to ensure that the conduct of members conforms to the standards generally expected of them.
  

3.15. In the Committee's view, maintaining professional standards is also a function of the disciplinary processes under the Real Estate Agents Act 2008.

Punishment

3.16. The Committee accepts that a penalty in a professional discipline case is primarily about maintaining standards and protecting the public. However, in the Committee's view there is also an element of punishment – indicated by the power the Committee has to impose a fine (Section 93(1)(g)); or make an order of censure (Section 93(1)(a)). The element of punishment has been discussed in the context of other professional disciplinary proceedings (see Patel v Dentists Disciplinary Tribunal (High Court, Auckland, CIV 2007-404-1818 Lang J 13

August 2007).

3.17. At paragraph [27]-[28], the judge said:

“Such penalties may be appropriate because disciplinary proceedings inevitably involve issues of deterrence. They are designed in part to deter both the offender and others in the profession from offending in a like manner in the future. I therefore propose to proceed on the basis that, although the protection of the public is a very important consideration, nevertheless the issues of punishment and deterrence must also be taken into account in selecting the appropriate penalty to be imposed...”

Where appropriate, rehabilitation of the professional must be considered

3.18. The Committee regards its power to make an order requiring a licensee to undergo training or education (Section 93(1)(d)) as indicating that rehabilitation is a function of professional disciplinary processes under the Act.

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 (section 111).

4.2. For further information on filing an appeal, read Guide to Filing an Appeal at Mi ni stry of

J usti ce -Tri bunal s ( ww w. justi ce. g ov t. nz/ tri bunal s ).

Publication

4.3. The Committee directs publication of its decision. The decision will be published without the names or identifying details of the Complainant (including the address of the Property), and any third parties. The decision will state the name of Licensee Najib and the Agency they work for or worked for at the time of the conduct.

4.4. 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 standards and that is in the public interest.

Signed

Susan D’Ath

Chairperson

For Complaints Assessment Committee 403

Real Estate Agents Authority

Date: 30 July 2015

Appendix 1: Relevant provisions

The Real Estate Agents Act 2008 provides:

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.

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.

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.

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 from the Real Estate Agents Act (Professional Conduct and Client

Care) Rules Choose an item.. are: i ncl ude rel evant prov i si ons from the Rul es .