Collins - Complaint No C08991 [2016] NZREAA 174 (19 August 2016)

Last Updated: 12 March 2017

Before the Complaints Assessment Committee

Complaint No: C08991

In the matter of

Part 4 of the Real Estate Agents Act 2008

Licensee One: Vicki Collins (10013687)

Licensee Two: Vuyani Ncube (10056334)

Decision on Orders

19 August 2016

Members of Complaints Assessment Committee: CAC404

Chairperson: Mike Vallant

Deputy Chairperson: Sarah Eyre

Complaints Assessment Committee

Decision on orders

1. Background

1.1. On 20 April 2016 the Complaints Assessment Committee (the Committee) found Vicki Collins (Licensee One) and Vuyani Ncube (Licensee Two) guilty of unsatisfactory conduct under section 89(2)(b) of the Real Estate Agents Act 2008 (the Act). The Committee also decided to take no further action against Licensee Three in relation to the same complaint.

1.2. The Complainant and Licensees One and Two were given the opportunity to make submissions to the Committee on orders.

2. Orders

Having made a finding of unsatisfactory conduct against Licensee One, the Committee decided to make the following orders pursuant to s93 of the Act:

a) Order Licensee One to pay to the Authority a fine of $1,500.00 by Monday, 19

September 2016.

Having made a finding of unsatisfactory conduct against Licensee Two, the Committee decided to make the following orders pursuant to s93 of the Act:

b) Order Licensee Two to pay to the Authority a fine of $1,500.00 by Monday, 19

September 2016.

3. Our reasons

3.1. The Complainant and Licensees One and Two were both given an opportunity to provide submissions on the appropriate penalty orders. The Complainant has not provided any submissions, but both Licensees have provided submissions.

3.2. The Committee has determined that a fine is the most appropriate penalty for each Licensee.

In relation to Licensee One, the Licensee has outlined for the Committee the considered manner in which she has responded to the complaint and the finding of unsatisfactory conduct. It is apparent to the Committee that Licensee One has appropriately accepted the finding of the Committee and has already taken action to ensure that she learns from and does not repeat this mistake.

3.3. Notwithstanding Licensee One’s careful submission that a fine should not be ordered, the Committee has decided to order a fine. That is because it is necessary for instances of unsatisfactory conduct to be penalised, to ensure that a clear message is sent to Licensee One and the community that conduct such as this cannot occur without penalty. However, as a result of Licensee One’s acceptance of the finding, the fact that in six years of practice she has had no other findings of unsatisfactory conduct and as this unsatisfactory conduct was in relation to only one discreet aspect of this overall transaction, a fine at the low end of the scale was considered appropriate.

3.4. The Committee may order a fine up to $10,000.00 but in a lower level example of unsatisfactory conduct, such as this, a starting point of $2,000.00 is appropriate. A deduction of $500.00 has then been made to reflect the factors identified above regarding Licensee One and the actual conduct involved. Accordingly a fine of $1,500.00 has been ordered.

3.5. The Committee has also decided not to censure this Licensee; a censure is a formal denunciation of the conduct designed to send a clear message to the community and the industry that the conduct is not condoned. In this instance, the Committee considers that the finding of unsatisfactory conduct by itself, the fine and the publication of that finding is a sufficiently public denunciation of Licensee One’s conduct.

3.6. The Committee has had regard to Licensee One’s submission that the decision not be published, but the reasons provided by Licensee One for non-publication do not justify not publishing the decision. The Committee is required to weigh up the interests of Licensee One and the interests of the public when considering the publication of a decision. It is well- established that the public has an interest in knowing which licensees have had disciplinary findings against them, and there are no clear submissions from Licensee One regarding why the decision should not be published. The factors Licensee One has referred to regarding her conduct and steps taken to review policies and procedures have been taken into account as mitigation factors, and do not in themselves also justify non-publication. The Committee finds that there are no grounds to justify not publishing this decision.

3.7. The Committee has also determined that a fine is the most appropriate penalty for Licensee Two. Licensee Two has provided a brief email confirming he agrees with the submissions made by Licensee One. Licensee Two has chosen to voluntarily suspend his licence and has noted that he respects the process and has taken steps to ensure he is not in this position again in future.

3.8. The Committee considers that Licensee Two, like Licensee One, has also clearly taken the finding of unsatisfactory conduct seriously and by choosing to voluntarily suspend his licence, has removed the opportunity for this to happen again in the near future. It is also clear that Licensee Two has supported Licensee One’s actions in learning from this situation.

3.9. Licensee Two has made no specific submissions on penalty for himself, but the Committee considers that as the unsatisfactory conduct by Licensee Two was effectively the same as Licensee One, a comparable fine is appropriate. Licensee Two has no previous disciplinary findings against him and like Licensee One has accepted that improvement is required. The Committee therefore considers a fine at the lower end of the scale is sufficient to penalise Licensee Two for the unsatisfactory conduct.

3.10. Finally, the Committee also considers for the same reasons as for Licensee One that a censure is not necessary in this instance, due to the lower level of offending, the lack of previous history and the clear acceptance of the findings and the need to improve.

Principles considered

3.11. 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.

3.12. 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

3.13. Section 3(1) of the Act 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."

3.14. 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

3.15. 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.

3.16. 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.
  

3.17. In the Committee's view, maintaining professional standards is also a function of the disciplinary processes under the Act.

Punishment

3.18. 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)).

3.19. 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

3.20. 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. 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 Friday, 16 September 2016 (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 ).

5. Publication

5.1. 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 the Licensees and the Agency for which they work or worked for at the time of the conduct.

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 standards and that is in the public interest.

Signed

Sarah Eyre

Date: 19 August 2016

Appendix: 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.