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New Zealand Real Estate Agents Authority |
Last Updated: 29 November 2019
Before the Complaints Assessment Committee
Complaint No: C25501
In the matter of
Part 4 of the Real Estate Agents Act 2008
and
Licensee 1: Nicola (Nicki) Cruickshank (10012973)
Decision on Orders
18 June 2019
Members of Complaints Assessment Committee: CAC1901
Chairperson: Rachael Schmidt-McCleave
Deputy Chairperson: Noel Cooper
Panel Member: Barbara Mackenzie
Complaints Assessment Committee
Decision on orders
1. Background
1.1. On 8 April 2019 the Complaints Assessment Committee (the Committee) found Nicola (Nicki) Cruickshank (10012973) (the Licensee) guilty of unsatisfactory conduct under section 89(2)(b) of the Real Estate Agents Act 2008 (the Act).
1.2. The Complainant and the Licensee were given the opportunity to make submissions to the
Committee on orders.
2. Orders
2.1. Having made a finding of unsatisfactory conduct against the Licensee, the Committee decided to make no further orders under the Act. In its substantive decision, the Committee found the Licensee to have engaged in unsatisfactory conduct under section 89(2)(b) of the Act in relation to the issue of the derogatory language about the Complainant by the Licensee used in an email mistakenly sent to the Complainant by the Licensee.
2.2. The Committee decided to take no further action on the other aspects of the complaint.
2.3. The Licensee sought name suppression, but the Committee decided there was no reason to displace the presumption of disclosure and, accordingly, declined to make an order of name suppression.
3. Our reasons
Decision to make no orders
Submissions
3.1. The Complainant made submissions as to penalty. The Committee notes that a significant portion of his submissions sought to challenge the Committee’s unsatisfactory conduct finding. The Complainant has other avenues open to him if he wishes to challenge that finding and this decision merely concerns the penalty, if any, to be imposed against the Licensee. The Committee also notes the limits on the orders it can make under section 93, and particularly that it is unable to order compensation.
3.2. Relevant points in the Complainant’s submissions were (note that the Committee has confined its summary here to the submissions on penalty for the one issue that the Committee found there to be unsatisfactory conduct, namely the ill-considered email):
(a) He has never received any form of apology from the Licensee. He seeks a written apology.
(b) He seeks $25,000 for the “outrageous defamation” by the Licensee.
(c) Suspension of the Licensee’s license for a period of no less than 12 months while she undergoes formal re-training.
3.3. In his submissions in response to the Licensee’s submissions, the Complainant also stated
(relevantly):
(a) He emphasised again that the Licensee has never apologised to him in writing or verbally.
(b) There is no evidence to support the submission on behalf of the Licensee as to her donations to various Wellington charities.
(c) He vehemently opposes any redaction of withholding of names and facts because “transparency is tantamount is [sic] assuring the public and the market can digest relevant statements and make informed decisions as to whom they should and could trust working with in the process of divesting of their real-estate holdings.”
(d) The Licensee has inflicted financial, moral, reputational and health damage on the
Complainant and his family.
3.4. The Licensee gave detailed submissions through her legal counsel. The Committee notes that it prefers to hear directly from licensees (in addition to legal counsel if necessary) in these circumstances but, in the absence of such direct submission, has proceeded on the basis of the submissions made through her legal counsel. These can be summarised as follows:
(a) The appropriate outcome here is that no orders be made against the Licensee and that the charge against her be dismissed.
(b) The primary submission on behalf of the Licensee is that the relevant rules require that she be carrying out real estate agency work at the time when the actions the subject of the complaint arose and, in this case, at the relevant date she was not dealing with either the Complainant or the vendors. Settlement was the point when all professional relationships between the Licensee and the Complainant ended and the offending email was sent some months later. Any orders based on findings to the contrary are inappropriate.
(c) As a secondary submission, the Licensee’s actions are not sufficiently serious to warrant penalty:
a) The issue of the Licensee’s trustworthiness is not in question.
b) This was an isolated event.
c) Issue is taken with three words only, and arguably only one word.
d) The words were not directed to the Complainant, nor were they intended for his knowledge.
e) Taken in context the words may be considered explicable if not excusable, reflecting the difficult dealings with the Complainant.
f) This was not a persistent style of behaviour.
g) The Licensee has expressed regret and apologised for the upset her words have caused.
h) The process has been a significant punishment in terms of the distress to the
Licensee and the time and resources taken to collate the evidence.
k) The Licensee has fully cooperated with the process.
m) The Licensee contributes significantly to the community.
3.5. In relation to name suppression, the Licensee acknowledges the starting point in favour of publication unless the Committee considers there to be sufficient reason to withhold publication. Here, it is submitted on behalf of the Licensee that suppression is warranted (of the Licensee’s name, the name and address of the vendor, and the complainant’s name if he wishes) because:
(a) There are no issues giving rise to the suggestion that the conduct would reduce public confidence in real estate agents, nor are there events that demonstrate a pattern of culpable behaviour.
(b) The public do not require protection from the Licensee. There are no issues of trust or dishonesty involved.
(c) The Licensee requires no further deterrence, and there is no general requirement of deterrence that would be compromised by the withholding of names.
(d) There has been no neglect of a positive duty owed to a client.
(e) There is no public interest in the disclosure of the parties’ names beyond the salacious, especially where the Agency concerned has been cleared of any wrongdoing.
(f) The findings of the Committee do not require publicity beyond the facts themselves.
Nothing further would be gained by the public nor the industry if the names of the parties and the vendor were published.
(g) Some leniency may be shown while still preserving the industry’s reputation and values.
Analysis
3.6. In response to the submission that the Licensee was not carrying out “real estate work” when she sent the offending email, the Committee notes simply that the email was sent in relation to a request by the Complainant for the full documentation for the Property, including the Body Corporate Rules which he had been seeking for some time. The Committee considers this to be caught within the ambit of real estate agency work (which does not necessarily stop once a sale has occurred). If the Licensee wishes to challenge this point further, she has avenues open to her to do so.
3.7. In terms of its unsatisfactory conduct finding, as the Committee noted in its substantive decision, the Licensee has at all times admitted that she referred to the Complainant as a “bullying little shit” in an email sent to the Vendors and to another agent on 29 January 2018 and that that email, as part of a longer email chain, mistakenly made its way to the Complainant’s inbox.
3.8. The Licensee is to be given credit for expressing regret for the Complainant’s viewing this email and she has apologised for the upset her words have caused, noting her words were “ill-
considered, written in haste, and set against an unusual background of events”.
3.9. The Committee agrees with the Licensee that this conduct is at the low end of unsatisfactory conduct. Nonetheless, licensees do have professional obligations to act at all times in an upstanding manner and in a way which does not bring the profession into disrepute. These obligations are reinforced in today’s internet and email era, where haste and lack of thought in written communications can have unintended consequences.
3.10. The Committee apprehends that the Licensee has learned from her error and the Committee fully expects her to take greater care in the future in the way she communicates externally. The Committee notes that the Licensee has modified her email and text practices.
3.11. The Committee further notes that the Licensee is a highly regarded and well respected agent, with no previous disciplinary record.
3.12. There is no perceived need for any further education of the Licensee. Further, many of the orders sought by the Complainant relate to correcting issues which formed part of his larger complaint and for which the Committee declined to make findings. In terms of an apology, the Committee notes that this has been provided through the Licensee’s submissions and sees no benefit in ordering that another apology be separately provided.
3.13. In all the circumstances, therefore, the Committee considers that the finding of unsatisfactory conduct against the Licensee is adequate penalty and no further orders are required.
Name suppression
3.14. In relation to the Licensee’s request for suppression, the Committee considers that there is insufficient reason to displace the presumption of disclosure which applies in these professional disciplinary cases.
3.15. In Y v Attorney-General [2016] NZCA 474 the Court of Appeal provided guidance about the approach to name suppression in civil cases which include professional disciplinary proceedings (albeit not addressing decisions at Committee level). The Court of Appeal in Y confirmed that the principle of open justice means that there is a presumption of disclosure of all aspects of civil court proceedings, and a court will need to have sound reasons for finding that the presumption favouring publication is displaced. An applicant for name suppression needs to point to factual material justifying the court departing from the presumption of open justice, and something more than a mere preference must be made out.
3.16. Decisions issued in the REA context are generally consistent with that approach, and the importance of open justice is accepted.
3.17. Publication of decisions is one of the Committee’s functions (section 78(h) and section 84(2) of the Act). There is no reference in the Act to situations where non-publication or name suppression may be considered, merely a reference to the Committee directing such publication “as it considers necessary or desirable in the public interest”.
3.18. Section 108 of the Act refers to Tribunal proceedings and balancing the public interest and the interest of any other person (including the privacy interest of the complainant). The Committee considers it can adopt that approach by analogy when considering publication of their decisions, as that is consistent with the Committee’s power to regulate its procedure “in any manner that it thinks fit as long as it is consistent with this Act and any regulations made under
it” (section 84(3) of the Act).
3.19. Ultimately the issue of name suppression or non-publication is something to be considered on
a case by case basis, balancing the public interest in open justice with any competing concerns. Where the public interest in open justice is outweighed by other considerations which favour privacy, it is acknowledged that the Committee will need to consider how best to balance those competing concerns. However, the Committee does not consider that balancing test to be satisfied in favour of non-publication here. Committees are tasked with making decisions about licensee conduct and that is where the public interest legitimately lies, and the identity of the complainant(s) and other parties is generally less relevant.
Principles considered
3.20. 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.
3.21. 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
3.22. 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."
3.23. 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
3.24. 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.
3.25. 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:
• protect both the public and the profession itself against persons unfit to practice
3.26. In the Committee's view, maintaining professional standards is also a function of the disciplinary processes under the Act.
Punishment
3.27. 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)).
3.28. 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
3.29. 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, the right to appeal is set out in section
111. You may appeal in writing to the Real Estate Agents Disciplinary Tribunal (the Tribunal) within 20 working days after the date notice is given 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. The Tribunal has a discretion to accept a late appeal filed within 60 working days after the date notice is given of this decision, but only if it is satisfied that exceptional circumstances prevented the appeal from being made in time.
4.2. For further information on filing an appeal, read Gu id e to Filin g a n Ap p ea l on the Real Estate
Agents Disciplinary Tribunal website ( https:/ / www. justi ce. g ov t. nz/ tri bunal s/ real -estate -
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 Licensee 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
Rachael Schmidt-McCleave
Date: 18 June 2019
Appendix: Relevant provisions
The Real Estate Agents Act 2008 provides:
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.
84 Procedure of Committee
(1) A Committee must exercise its powers and perform its duties and functions in a way that is consistent with the rules of natural justice.
(2) The Committee may, subject to subsection (1), direct such publication of its decisions under sections 80, 89, and 93 as it considers necessary or desirable in the public interest.
(3) The Committee may regulate its procedure in any manner that it thinks fit as long as it is consistent with this Act and any regulations made under it.
89 Power of Committee to determine complaint or allegation
(1) A Committee may make 1 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.
84 Procedure of Committee
(1) A Committee must exercise its powers and perform its duties and functions in a way that is consistent with the rules of natural justice.
(2) The Committee may, subject to subsection (1), direct such publication of its decisions under sections 80, 89, and 93 as it considers necessary or desirable in the public interest.
(3) The Committee may regulate its procedure in any manner that it thinks fit as long as it is consistent with this Act and any regulations made under it.
93 Power of Committee to make orders
(1) If a Committee makes a determination under Section 89(2)(b), the Committee may do 1 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.
108 Restrictions on publication
(1) If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make 1 or more of the following orders:
(a) an order prohibiting the publication of any report or account of any part of any proceedings before it, whether held in public or in private:
(b) an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at any hearing:
(c) an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person.
(2) Unless it is reversed or modified in respect of its currency by the High Court on appeal under section 116, an order made under subsection (1) continues in force as specified in the order, or, if no time is specified, until the Disciplinary Tribunal, in its discretion, revokes it on the application of any party to the proceedings in which the order was made or of any other person.
(3) Subsection (1)(c) does not apply to any communications between the Disciplinary
Tribunal and the Authority.
(4) A person who breaches an order made under this section is liable on conviction to a fine not exceeding $3,000.
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.
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