Lonergan - Complaint No C04708 [2015] NZREAA 380 (25 June 2015)

Last Updated: 27 January 2017

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

And

In the Matter of Complaint No: C04708

In the Matter of Clive Lonergan

License Number: 10003710

Licensee Two

License Number: XXXXXXXX

The Agency

License Number: XXXXXXXX

Decision of Complaints Assessment Committee

Dated this 25th day of June 2015

Complaints Assessment Committee: CAC 403

Chairperson: Susan D’Ath

Deputy Chairperson: Amelia Bardsley

Panel Member: Sandra Wilson

Complaints Assessment Committee

Decision to take no further action and Decision finding unsatisfactory conduct asking for submissions on orders

1. The Complaint

1.1. On 10 February 2014 the Real Estate Agents Authority (the Authority) received a complaint against Clive Lonergan (Licensee Lonergan) from the Complainant. Subsequent to that, further complaints were made against Licensee Two and the Agency.

1.2. Licensee Lonergan is a licensed salesperson under the Real Estate Agents Act 2008 (the Act) and at the time of conduct was engaged by the Agency. Licensee Two is a licensed agent and the principal officer of the Agency.

1.3. The complaint relates to a property (the Property). Licensee Lonergan was the listing agent when the Property was listed for sale with the Agency.

1.4. There are a number of separate items of complaint made over a period of time. The original four complaints received by the Authority, on 10 February 2014, were against Licensee Lonergan. The complaints are outlined as follows.

1.4.1. Complaint One: That without the Complainant’s knowledge, Licensee Lonergan gave the key to the Property to a complete stranger (NT) and his family to stay at the Property, with the result that the stranger and his family successively moved furniture, personal possessions, and removed many of the Complainant’s possessions outside and under the house.

1.4.2. Complaint Two: That on or about 2 September 2013, Licensee Lonergan, without the

Complainant’s knowledge or consent, reduced the advertised purchase price over the

Internet and possibly elsewhere to $500,000 from the instructed asking price of

$600,000.

1.4.3. Complaint Three: That around early January 2014, when instructed by the Complainant to reduce the asking price to the low $500,000s, Licensee Lonergan did not do so.

1.4.4. Complaint Four: That the Complainant received virtually no correspondence or information about the marketing process from Licensee Lonergan between January

2013 and January 2014.

1.4.5. Complaint Five: A further complaint dated 17 February 2014, was made against

Licensee Lonergan that he mislaid or lost the key/s to the Property, and if he did not have a key would have been unable to show the Property to prospective purchasers in August/September 2013.

1.4.6. Complaint Six: That Licensee Lonergan behaved in a degrading and humiliating way towards the Complainant at a meeting on 4 February 2014 held at the Agency’s office.

1.4.7. Complaint Seven: This complaint concerned the conduct of and comments made by

Licensee Two at the meeting on 4 February 2014.

1.4.8. Complaint Eight: This was made by letter dated 17 June 2014. That Licensee Lonergan did not explain to the Complainant the Agency’s real estate agency’s commission, how it was calculated, or how it would be paid in the event the Property was sold.

1.4.9. Complaint Nine: Also made by letter dated 17 June 2014. That on or about 18 to 21

October 2013 Licensee Lonergan potentially compromised the security and insurance cover of the Complainant’s Property, by requesting NT leave the key to the Property inside the cover of a small portable fireplace wherein the Property could be accessed by unauthorised persons.

1.4.10. Complaint Ten: This complaint was made in an email dated 18 June 2014, and is that without the authorisation of the owner, or the owner’s solicitors, Licensee Lonergan released the key to the Property to another person resulting in serious damage to the owner’s personal possessions and damage to the interior walls of the dwelling.

1.4.11. Complaint Eleven: This complaint was made on 29 August 2014. That on or about 15

November 2013 a person employed or engaged by the Agency, without the authorisation of the owner or the owner’s solicitor, gave the key to the Property to a stranger, NT, who occupied the Property and caused substantial damage to the Complainant’s chattels and fixtures.

1.4.12. Complaint Twelve: This complaint was made on the 6 January 2015, and alleged that

in the course of an interview with the Investigator on 26 March 2014, Licensee Lonergan made comments about the Complainant which amounted to disgraceful conduct because they were defamatory.

1.5. There is a degree of overlap in a number of complaints in that they deal with the same events.

1.6. The Complainant requested a remedy, being:

• that charges be laid against Licensee Lonergan;

• that Licensee Lonergan be struck off;

• that Licensee Lonergan be fined;

• compensation ordered by the Tribunal.

1.7. The Licensees responded to the complaints against them.

2. What we decided

2.1. On 19 February 2014 Complaints Assessment Committee 301 considered the complaint and decided to inquire into it.

2.2. On 3 December 2014 Complaints Assessment Committee 301 was disestablished.

2.3. The complaint was referred to Complaints Assessment Committee 403 (the Committee).

2.4. The Committee have considered the original complaint afresh and made a decision to inquire into the complaint.

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

2.6. The Committee determined some of Licensee Lonergan’s actions contravened a provision of the Act or Regulations or Rules made under it in accordance with section 72(b) of the Act and therefore he had engaged in unsatisfactory conduct under section 89(2)(b) of the Act. For the reasons set out below in part 4, the Committee found the following complaints proven:

2.6.1. Complaint One and Complaint Ten amounted to a breach of rule 9.5.

2.6.2. Complaint Two amounted to a breach of rule 5.1.

2.6.3. Complaint Four amounted to a breach of rule 10.2.

2.6.4. Complaint Eight amounted to a breach of rule 10.6.

2.7. The Committee determined that no further action should be taken against Licensee Two and the Agency under section 89(2)(c) of the Act.

3. Application for fresh investigation

3.1. The Complainant filed a comprehensive memorandum dated 30 January 2015 setting out in detail her objections to an investigation report written by an Authority Investigator and provided to the Committee. The Complainant requested a fresh investigation and investigation report.

3.2. The Committee considered this application on 11 February 2015.

3.3. We have declined the application. The Committee believes that there is sufficient material before it to reach a conclusion on the complaints. The Complainant has outlined her complaints very comprehensively, and has had the opportunity to comment on the Licensees’ responses to her complaints. Likewise, she has received and commented in a thorough manner on the Investigator’s report. The Committee may be assisted by an Investigator’s report but is not bound by it to any particular finding, and accordingly, we see no reason for a further investigation to be undertaken.

3.4. The Committee then proceeded to consider each of the complaints.

4. Our reasons for the decision

Reasons for our decision in respect of each complaint follow:

Complaint One

4.1. The Complainant was, at the relevant time, the sole registered proprietor of the Property, a one-bedroom bach in the Town. She listed the Property for sale with the Agency, on 26

January 2013 under a sole agency. Licensee Lonergan was the listing agent. On the expiry of the sole agency, the listing became a general one from 30 April 2013.

4.2 On 18 October 2013, Licensee Lonergan provided NT with the key to the Property, and he and his family stayed at the Property for the weekend 18-20 October 2013. NT was unknown to the Complainant and had no authority from her to access the Property.

4.3. Rule 9.5 requires a licensee to take due care to ensure the security of land in respect of which the licensee is carrying out ‘real estate agency work’. Licensee Lonergan has submitted that his actions were not ‘real estate agency work’. We disagree. Licensee Lonergan had the keys to the Property solely because he was marketing it for sale. Licensee Lonergan’s actions in allowing access to the Property without the direct authorisation of the Complainant was negligent, breached Rule 9.5, and amounts to unsatisfactory conduct.

4.4. There were a number of mitigating factors which we will take into account in reaching a decision on penalty. These are that Licensee Lonergan was at home in the evening when he was called by NT who had already arrived on the island. NT told him that he had been told he could use the bach, knew the address, and mentioned the same surname as the Complainant. The Town has many non-permanent residents and holiday properties, and it is not unusual for people to come and go and to get keys from agents to do so.

4.5. We accept the evidence of NT that he and his family believed at the time that they had the bach owner’s consent to use the Property. NT was socially acquainted with the Complainant’s brother, Mr. K. They drank at the same pub. Mr. K gave NT and others reason to understand that he was the owner or part owner of the Property. He told NT he could use the bach. He gave NT what he purported was a key to the Property and encouraged him to go there. NT discovered on arrival at the Property that the key did not work. He called Mr. K but failed to contact him, and seeing Licensee Lonergan’s name on the Property signage, he called him and asked for the key.

4.6. Mr. K has since claimed in an interview that he did not say he owned the Property and did not offer it to anyone else. Mr. K has also said he knew the key did not work and did not know that NT would be going to the Town.

4.7. NT provided the Authority with the name of a person, who was interviewed, and whom stated that Mr. K had told him he owned a bach in the Town and offered the use of the Property.

4.8. Mr. K claimed not to have known that NT visited the Property on more than one occasion but he asked NT to get a key cut for him, which was done in November 2013, the second time NT and his family visited the Property, and he received that key from NT. When later challenged by NT, Mr. K again claimed he was a co-owner of the Property and/or that it had been put in his sister’s name because of financial issues he faced.

4.9. NT provided his telephone records which support his evidence as to the calls made to Mr. K

and Licensee Lonergan.

4.10. We have concluded that, while his motives for doing so are obscure, Mr. K engaged in deception in holding himself out to NT as the owner of the Property. We find Mr. K’s statements during the course of the investigation to be unreliable, being as they are contradicted by NT’s telephone records and the evidence of others, including the Complainant.

Complaint Two

4.11. Licensee Lonergan says that the Complainant authorised him by telephone on 21 August

2013, to reduce the listing price and that, accordingly, he did so. The Complainant denies that any such telephone conversation took place. Neither has provided their telephone records.

4.12. Reduction of the advertised listing price is a serious matter and should not be lightly undertaken. Licensee Lonergan should not have done so without written instruction from the Complainant. We find that Licensee Lonergan breached Rule 5.1 on this occasion. We note that as soon as it was drawn to his attention, Licensee Lonergan did correct his error and reinstate the original listing price.

Complaint Three

4.13. When the Complainant, by telephone, requested that Licensee Lonergan reduce the listing price, he did not do so in a prompt manner. Licensee Lonergan has said he was waiting for instruction in writing to do so. As we stated in respect of Complaint Two, we agree that it is proper practice to await written instruction but find no breach of Rules 5.1 and 9.1 on this occasion. We do, however, note that in our opinion Licensee Lonergan should have made it clear to the Complainant that he was waiting for written instructions.

Complaint Four

4.14. Licensee Lonergan has produced little evidence of the marketing and progress information provided to the Complainant. It seems there were some email updates and telephone calls provided on an irregular basis. We would expect that under a sole agency a vendor would be receiving regular updates, and while these might be reduced under a general agency, the impression we are left with is one of a very casual approach to communication with the Complainant. But in our view the failure did not reach the level at which a breach of Rule 9.3 occurred.

4.15. Licensee Lonergan has admitted that at the time the Property was listed, he did not prepare and provide to the Complainant a Current Market Appraisal (CMA). His lawyer submits that this is only a technical breach of Rule 10.2. We disagree. It is vital that a vendor is given the appropriate, up-to-date, and relevant information when they list a property for sale. If the Complainant had received a CMA, she would have been better informed as to the likely sale price of the Property, and the issues which arose over pricing may have been avoided. We find that Licensee Lonergan’s conduct in failing to prepare the CMA was unsatisfactory and breached Rule 10.2.

Complaint Five

4.16. Complaint Five was withdrawn by the Complainant during the investigation. The Complainant thought Licensee Lonergan may have lost the key and been unable to show prospective purchasers through the Property for a period of time. In the course of the investigation by the Committee, the Complainant has had the opportunity to see the statements of Licensee Lonergan and third parties concerning the change of the lock and key. She has accepted these explanations, and we agree with her that the keys were not lost, and that when the locks were changed the old lock/keys were given to the builder; who was at that time working on the Property, and who stated that he disposed of them. Accordingly we find no further action on this aspect of the complaint.

Complaint Six

4.17. Complaint Six concerned the behaviour of Licensee Lonergan at the meeting held at the Agency’s office on 4 February 2014, following the cancellation of the listing agreement the day before. It is debatable whether or not this meeting constituted ‘real estate agency work’ following the listing cancellation. If it did constitute real estate agency work, then it would be open to the Committee to consider a finding of unsatisfactory conduct. If it was not real estate agency work, then only a misconduct finding would be open to the Committee. There is some support in Henton v The Real Estate Agents Authority (CAC20003) and Barfoot and Thompson and Wallace [2014] NZREADT 2 for the contention that the work of an agency or licensees in considering complaints is real estate agency work. In this particular case, we do not find it necessary to reach a decision on that point.

4.18. It is clear to us from the statements made by all the parties in attendance at that meeting, that the atmosphere was tense. The Complainant, supported by her partner, made a number of allegations against Licensees Lonergan and Licensee Two, and made an unexpected demand for payment to her of compensation amounting to around $146,000. Clearly this demand for payment, and the level at which it was made, came as a shock to Licensees Lonergan and Licensee Two. Licensee Lonergan said that he remained calm throughout the meeting which the Complainant disputes. We agree that, if they were made, then Licensee Lonergan’s reported comments referring to the Complainant’s brother and family were rude and uncalled for. We however, take into account that at the time of this meeting Licensee Lonergan believed that the issues had arisen because of a dispute within the Complainant’s family. He may have spoken unwisely, but in the context in which the comments were made, where unexpected financial demands were presented, his statements did not in our view reach a level at which a finding of either unsatisfactory conduct or misconduct would be appropriate. Real estate agents are expected to act in a professional manner but are also human, and not every unfortunate or ill-thought comment is worthy of a disciplinary sanction.

Complaint Seven

4.19. Complaint Seven concerned the behaviour of Licensee Two at the meeting held at the Agency’s office on the 4 February 2014. Licensee Two was said to have behaved in a degrading and humiliating way towards the Complainant. Licensee Two appears to us to have made efforts to calm participants down, to ascertain what the issues were, and to see if any agreement could be reached. She has explained in a statement to the Committee that she did not intend to be insulting but rather was shocked and trying to deal with the situation as best she could in her role as manager. Having received that information, the Complainant has reassessed her position and withdrawn the complaint with respect to Licensee Two. We agree with the Complainant that the matter should be taken no further. In our view there is nothing in the reported comments by Licensee Two that amounts to conduct worthy of a disciplinary finding, and therefore we make a finding of no further action.

Complaint Eight

4.20. The Complainant states that Licensee Lonergan did not explain how the commission would be charged or calculated. Licensee Lonergan is adamant that he did explain this to her. There has been a great deal of time since the event and memories can be unreliable, particularly when other events have occurred which colour the entire transaction in a bad light. We do not have sufficient evidence before us to form a view as to what information was, or was not, supplied to the Complainant about the commission, other than that provided by the listing agreement prepared by Licensee Lonergan, which she signed.

4.21. We have sighted that listing agreement. The percentage amount of commission is stated in the document but the part of the form in which the dollar figure should be disclosed has not been completed. Licensee Lonergan has on the face of that document failed to disclose the commission and has breached Rule 10.6, which in our view is unsatisfactory conduct.

Complaint Nine

4.22. The Complainant says that, in having the NT and his family leave the key in the outside portable fireplace on or about 18-20 October 2013, the security of the Property was compromised. Licensee Lonergan says that the key was hidden and he promptly collected it.

NT says the key was left hidden on 20 October 2013, as agreed with Licensee Lonergan. This was because the Agency’s office was closed at the time NT and his family left the Town.

4.23. We do not find a breach of the rules on this occasion. The Town is not a City. We accept that there is a pervasive casualness of approach in the Town, which reflects the number of holiday makers and non-permanent residents. We accept the submission on behalf of Licensee Lonergan that real estate agents in the Town are used to keys being regularly uplifted by tradespeople and visitors. While we have concerns about this casual approach, which we have covered elsewhere in this decision, we accept that this is the position. In our opinion, Licensee Lonergan on this occasion took appropriate steps in having NT hide the key in a place he designated and in collecting it promptly the next day on his way to work. There is no evidence before us that unknown persons were able to gain access to the Property by way of the hidden key.

Complaint Ten

4.24. This complaint mirrors the first in some aspects but extends to the second visit of NT and his family to the Property, which took place on the weekend of 15- 17 November 2013. NT has stated that he contacted Licensee Lonergan by telephone and made arrangements to collect the key. Licensee Lonergan was to be out of the Town on that date, and the keys were to be collected from the Agency’s office. Licensee Lonergan says he has no recollection of making this arrangement but it is our finding that he did so. NT has provided his telephone records, which support his statement, and we accept the accuracy of those records. NT’s wife has provided a statement in which she outlines how she called at the Agency’s office, asked at reception for the keys, and they were brought to her. We find that Licensee Lonergan must have told the Agency’s staff that the keys were being uplifted; otherwise the staff member would not have known that someone was coming in to collect them and released them.

4.25. NT and his family took personal possessions with them on this visit, which they left in the Property when they departed. These were later disposed of at the Complainant ’s behest when discovered by her. This supports the NT’s assertion that they believed they had permission to use the Property – they would not have left belongings there had they thought they were not authorised to do so.

4.26. NT said they were told by Mr. K that they could put curtains up, and that they could move some of the Complainant’s possessions, but they deny that they caused the serious damage alleged by the Complainant. NT has said that he has photographs which support his statement but these have not been provided to us. NT has alluded to the possibility of a civil claim being brought against him by the Complainant.

4.27. NT also stated that on this visit they had a key to the Property cut at the request of Mr. K, and gave it to him on their return to their hometown. Whether Mr. K used that key at any time to access the Property is unknown. The Complainant refers to having visited the Property on several occasions between September/October 2013 and January 2014, and seeing the “progressive nature of the intrusion into her personal property which occurred on at least two (and possibly more) occasions”. We accept NT’s evidence that he and his family stayed at the Property on only two occasions. We find that the Complainant did not raise the issue with Licensee Lonergan until the visit to the Property in early January 2014.

4.28. There is no doubt that the Complainant had not given her permission for NT and his family to occupy the Property. Licensee Lonergan should have checked with the Complainant before the authorisation to release the key was given by him to the Agency’s staff. We again accept

that there are some mitigating factors which we will take into account on penalty, however, Rule 9.5 was breached by Licensee Lonergan and the conduct was unsatisfactory.

4.29. This was the last occasion that NT and his family stayed at the Property. On or about 6

January 2014, the Complainant visited the Property with Licensee Lonergan. She found

possessions belonging to NT and his family inside the Property and confronted Licensee Lonergan over someone having been inside without her permission. On 7 January 2014, the locks were changed. On 24 January, NT and his family again wished to stay at the Property. They found that the key they had cut on the November visit did not fit the changed lock, and having called Mr. K a number of times to no avail, they then contacted Licensee Lonergan. He told them to contact the Complainant. NT did so and learned the truth about the ownership of the Property and that no permission had been given for him and his family to use it. NT is adamant that this was the first they knew that they did not have permission to use the Property. NT provided telephone records which again support his account of events.

Complaint Eleven

4.30. This complaint relates to the release of the keys to NT and his family by the Agency. The background has been covered in our consideration of the other complaints. Having found in respect of Complaint Ten that Licensee Lonergan authorised the Agency’s staff to release the key to NT and his family, we find that the Agency or its staff did not act negligently or in breach of the Rules in doing so. This complaint is not upheld against the Agency.

4.31. The Complainant has made mention of the crime of burglary having been enabled or committed in the context of this complaint. Section 231 of the Crimes Act 1961 requires that to constitute burglary there must be entry into a building or part thereof without authority, and with intent to commit an imprisonable offence in that building. There is no evidence before us that NT and his family had such intent, however it is not for the Committee to determine whether an offence under the Crimes Act has been committed.

Complaint Twelve

4.32. In an email to the Authority on the 6 January 2015, the Complainant complained that in the course of an interview with the Investigator, Licensee Lonergan made comments that she considered amounted to disgraceful conduct; being defamatory and untrue. The specific comments complained of were as follows:

“She knew bloody well that she hadn't paid her bills ...” “She’s a criminal lawyer.”

“You know and they win their cases on lies ...”

“And look I can negotiate with anyone but I can't negotiate with liars ...”

4.33. We note that the second comment complained of appears to be a statement of fact, and as such, not capable of being defamatory. We do not find it necessary to reach a view as to whether the other three comments could amount to defamation. Regardless, a defamation suit must be brought as a civil action by one party against the other, to be determined in civil court. There is no jurisdiction for the Committee to determine whether the comments are defamatory.

Section 96 of the Act states:

Section 96 Protection and privileges of witnesses

Every person has the same privileges and immunities as a witness has in a court of law in relation to—

(a) the giving of information to a Committee; and

(b) the giving of evidence to, or the answering of questions put by, the

Committee; and

(c) the production of papers, documents, records, or things to the Committee.

4.34. The comments complained of were made to an Investigator in the course of the investigation into this complaint. As well as being a party complained of, Licensee Lonergan is a witness and, as such, entitled to the protection granted by the Act.

4.35. There is a clear public interest in licensees being able to speak freely and frankly in response to complaints against them. Natural justice requires that licensees are given an opportunity to respond, and likewise, that response is disclosed to the Complainant. The Complainant has been given the opportunity to comment on all material before the Committee and has taken that opportunity. As a Committee, we can consider the comments of both parties when forming a view on each of the individual complaints.

4.36. In our view, the comments made by Licensee Lonergan are typical of statements made under stress and reflect badly on Licensee Lonergan, but we consider that the specific comments are not worthy of a finding of either unsatisfactory conduct or misconduct.

4.37. In accordance with section 79(2)(a) of the Act the Committee has decided not to inquire into this issue.

5. Request for submissions on orders: Licensee Lonergan

5.1. 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.

5.2. Licensee Lonergan and the Complainant may file submissions on what orders, if any should be made. The Complainant may file submissions within 10 working days from the date of the decision. These submissions, if any, will then be provided to Licensee Lonergan, with a timeframe for filing final submissions.

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

6. What happens next?

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

7. Your right to appeal

7.1. In the matter of Licensee Lonergan, the Committee has yet to finally determine this complaint because the Committee is yet to determine what orders should be made, if any.

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

7.3. In the matter of Licensee Two, and the Agency, if you are affected by this decision 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 to the Tribunal to consider in relation to the appeal. Refer to Appendix section 111.

7.4. 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 ) .

8. Publication

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

Signed

Susan D’Ath

Chairperson

For Complaints Assessment Committee 403

Real Estate Agents Authority

Date: 25 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 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.

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 9.1 A licensee must act in the best interest of a client and act in accordance with the client’s instructions unless to do so would be contrary to law.

Rule 9.3 A licensee must communicate regularly and in a timely manner and keep the client well informed of matters relevant to the client’s interest, unless otherwise instructed by the client.

Rule 9.5 A licensee must take due care to:

(a) ensure the security of land and every business in respect of which the licensee is carrying out real estate agency work; and

(b) avoid risks of damage which may arise from customers, or clients that are not the owner of the land or business, accessing the land or business.

Rule 10.2 An appraisal of land or business must –

(a) be provided in writing to a client by a licensee; and

(b) realistically reflect current market conditions; and

(c) be supported by comparable information on sales of similar land in similar locations or businesses.

Rule 10.6 Before a prospective client signs an agency agreement, a licensee must explain to the prospective client and set out in writing –

(a) the conditions under which commission must be paid and how commission is calculated, including an estimated cost (actual $ amount) of commission payable by the client, based on the appraisal provided under rule 10.2.