Complaint No C30639 [2020] NZREAA 37 (14 February 2020)

Last Updated: 20 August 2020

Before the Complaints Assessment Committee

Complaint No: C30639

In the matter of

Part 4 of the Real Estate Agents Act 2008

and

Licensee 1: Licensee 1 (XXXXXXXX)

Licensee 2: Licensee 2 (XXXXXXXX)

Decision to take no further action

14 February 2020

Members of Complaints Assessment Committee: CAC520

Chairperson: Bernardine Hannan

Deputy Chairperson: Peter Brock

Panel Member: Craig Edwards

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. On 21 March 2019 the Real Estate Agents Authority (the Authority) accepted a complaint against

Licensee 1 and Licensee 2 (the Licensees) from the Complainant.

1.2. The Licensees are licensed Salespersons under the Real Estate Agents Act 2008 (the Act).

1.3. The complaint relates to a property (the Property).

1.4. The details of the complaint are:

a) The Licensees provided inconsistent information about the price for the Property to the

Complainant and potential purchasers (vendor price expectations).

b) The Complainant’s son-in-law was denied an opportunity to purchase the Property.

1.5. The Complainant says:

a) An Agency 1 agent, who was a Conjunctional Agent for the Property advised him the asking price of the Property was around $4 million based on a council valuation (CV) for the house of $2.9 million and $1.1 million for an attached bare section.

b) His brother-in-law viewed the Property prior to an auction and Licensee 1 told his brother-in- law the bidding would start at $2.6 million and the Property would be on the market at $2.9 million. Licensee 1 also said his brother-in-law “...might be lucky enough to get it for $2.6 million.”

c) He was advised post auction that the new asking price for the Property was $2.9 million.

d) He approached the Conjunctional Agent and arranged to view the Property on 23 December

2018 (with his son-in-law who lives in Singapore).

e) At the viewing on 23 December 2018 and in the presence of an Agency 2 agent he asked the Conjunctional Agent to confirm the asking price was $2.9 million. The Conjunctional Agent told him this was not correct and it was $2.9 million for the house not including the adjacent section.

f) At the viewing on 23 December 2018 his son-in-law mentioned he wanted to be kept in touch with regard to the Property. Licensee 2 made no attempt to obtain their contact details. The Conjunctional Agent had his contact details and asked his son-in-law for his contact details.

g) He was dumbfounded to learn subsequently that the Property sold for $2.3 million (the house and the adjacent section).

h) He believes the purchaser must have been given different information from what he received about the vendors’ price expectations.

i) His son-in-law who was interested in the Property has been deprived of the opportunity to purchase it and the Licensees cannot have acted in the best interests of their vendor client.

1.6. The Complainant requested a remedy, being:

a) A thorough investigation.

1.7. The Licensees responded to the complaint against them.

1.8. Licensee 1 says:

a) She marketed the Property under several agency agreements from September 2016.

b) In September 2016 she presented an offer for $3.5 million which the vendors did not accept.

c) In January 2018 a conditional agreement for sale and purchase (ASP) was signed for $2.9 million for the house alone. The ASP did not proceed due to an unsatisfactory building report.

d) In May 2018 an offer was received for the house alone for $2.2 million which the vendors countersigned at $2.5 million. The offer did not proceed.

e) On 20 September 2018 she advised the vendors that purchasers saw the value of the Property

(home and section) at around $3 million.

f) In late September 2018 Individual A [the Complainant’s brother-in-law but relationship unknown to Licensee 1 at the time] viewed the Property.

g) Prior to the auction she advised the Complainant’s brother-in-law that he may have a chance to purchase the Property at $3 million plus.

h) The Property went to auction on 10 October 2018 with a reserve of $3 million. Only one person attended the auction and that person did not bid.

i) On auction day after the Property was passed in she messaged the Complainant’s brother-in- law and advised she would present offers over $2.9 million.

j) On 13 October 2018 she presented an offer for the house alone at $1.8 million. The vendors countersigned at $2.58 million and the offer did not proceed.

k) In mid-October 2018 she presented an offer for $2 million (both house and section). The vendors countersigned at $3.8 million and the offer did not proceed.

l) On 20 October 2018 a conditional ASP was signed for $3.2 million (both house and section).

The ASP failed due to non-satisfaction of a finance condition.

m) After she went on holiday to China on 19 December 2018 the Conjunctional Agent contacted her to arrange access for his clients. She arranged for her colleague Licensee 2 to provide access to the Property. She did not know the names of the clients and the Conjunctional Agent did not tell her.

n) Access was arranged for 24 December 2018 (Licensee 2 was not available on 23 December

2018).

o) Subsequent to the Conjunctional Agent’s clients viewing the property on 24 December 2018 she emailed a property information pack to the Conjunctional Agent. She heard nothing further from the Conjunctional Agent and “...thought his clients weren’t interested in making an offer.”

p) On 9 January 2019 the vendors instructed her to find unconditional offers with a short settlement. She followed up with some interested parties and a negotiation occurred with one of those interested parties resulting in an ASP for sale for $2.3 million (both house and section).

q) Prior to presenting the offer which led to the sale of the Property she did not follow up with the Complainant or his son-in-law because she did not know their names and the Conjunctional Agent had not provided any contact details. She did not follow up with the Conjunctional Agent because she expected he would have contacted her if the Complainant and his son-in-law were interested in the Property.

1.9. Licensee 2 says:

a) He sometimes helps Licensee 1 with her listings. If she is away and can’t open a property he assists her to do so.

b) He was not involved in the sale of the Property.

c) He knew what the CV was but had no knowledge of the vendors’ price expectations.

d) The only contact he had with the Conjunctional Agent was about confirming a viewing time.

He was not available on 23 December 2018 and he opened the property for the Conjunctional

Agent and the Conjunctional Agent’s clients on 24 December 2018.

e) He introduced himself to the clients and the Conjunctional Agent showed them the Property.

He stayed by the entrance most of the time. He cannot remember if the clients spoke to him. He says he might have told the clients about the CV.

6. He cannot remember if the Conjunctional Agent spoke to the clients about the vendors’ price expectations but he is certain he did not because he did not know.
   
7. After the viewing (and the clients had left) he told the Conjunctional Agent to talk directly with Licensee 1 about price and any offer. The Conjunctional Agent asked him to ask Licensee

1 to do a rental appraisal.

h) He had no further contact with the Conjunctional Agent after 24 December 2018.

2. What we decided

2.1. On 7 April 2019 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. On 25 November 2019 the Committee held a hearing on the papers and considered all the information gathered during the inquiry.

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

2.4. 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. In particular, Rules 6.2, 6.4 and 9.4.

3. Our reasons for the decision

General

3.1. The Complainant has the burden of proving his allegations. The standard is the balance of probabilities.1

3.2. The Property consisted of a house and an adjacent bare land/section (section). The house and section each had a separate CV. During the marketing of the Property by the agency offers were received for both the house and section and for only the house. When the Committee refers to

‘the Property’ it is referring to both the house and section. Where necessary it will identify

reference being to either the house or section, or both.

3.3. A Company A report provided to the Committee indicates the house and section had a rating valuation (CV) of $4,430,000 as at 1 July 2017.

3.4. The agency market appraisal for the Property (house and section) dated 23 January 2018 is between $4 and $5 million and notes “...no comparison really unusual property, special design.”

3.5. It is not disputed that the Conjunctional Agent was in a conjunctional relationship with the agency

(Agency 2) for whom the Licensees worked.

3.6. The REINZ has published an information sheet relating to conjunctional arrangements.2 It states “The conjunction agent indirectly represents the vendor and works with the buyer, but not for the buyer. As a subagent, the conjunction agent owes a fiduciary duty to the sole agency...”

1 Section 89(2)(b) of the Act

2 REINZ Information Sheet – Conjunctional Arrangements, 25 February 2015

(Committee emphasis).

3.7. By an ASP dated 14 January 2019 the vendors sold the Property for $2,300,000 (both the house and the section).

3.8. The Complainant says he viewed the Property with Licensee 2 on 23 December 2018. Licensee 2 says he was unavailable that day and the viewing took place on 24 December 2018. Nothing turns on whether the viewing took place on 23 December 2018 or 24 December 2018. The evidence of Licensee 2 is consistent with Licensee 1 saying she sent an information pack to the Conjunctional Agent after the viewing on 24 December 2018. There is an email from her to the Conjunctional Agent with an information pack on 24 December 2018. The Committee finds that the Complainant and his son-in-law viewed the Property on 24 December 2018.

Advice about vendor price expectations/inconsistent advice about price

3.9. A licensee “...must act in good faith and deal fairly with all parties engaged in a transaction...”3 and must “...not mislead a customer...nor withhold information that should by law or in fairness be provided to a customer...”4 and “...must not mislead customers as to the price expectations of the client.”5

Vendors price expectations

3.10. From the evidence considered it is clear that the vendors’ price expectations changed over time.

3.11. In September 2016 the vendors did not accept an offer of $3.5 million for the house and section.

By the time of the auction in October 2018 the reserve for both the house and section was $3 million. After the auction an ASP for sale of both the house and section for $3.2 million failed due to non-satisfaction of the finance condition. The vendors eventually sold the Property (house and section) for $2,300,000 in January 2019.

Information provided to the Complainant and the Conjunctional Agent

3.12. The Complainant says that prior to the auction on 10 October 2018 the Conjunctional Agent told him that the vendors’ price expectation was around the CV of $4 million (both house and section).

3.13. The Complainant does not say that Licensee 1 gave him any advice about the vendors’ price expectations and does not disclose having any contact with her about this transaction.

3.14. He does not say Licensee 2 gave him any advice about the vendors’ price expectations. He says that at the viewing on 24 December 2018:

1. The Conjunctional Agent told him it was not correct that the asking price for the Property was $2.9 million and that was only the asking price for the house without the section;
   

b) Licensee 2 made no attempt to extol any virtues of the Property;

c) Licensee 2 wasn’t saying much at all.

3.15. In an email to an Authority facilitator on 1 July 2019 the Complainant asks “...why did [Licensee 2]

agree that the price was circa $4 million when my son-in-law and myself visited the property...”.

3.16. The Committee’s investigator invited the Conjunctional Agent to advise what knowledge he had of the vendors’ price expectations and how he obtained that information. He was also invited to explain his role in the transaction.

3.17. The Conjunctional Agent responded by email dated 4 October 2019. He says:

a) He was operating on a conjunctional with Licensee 1 from Agency 2 and “introduced my client

3 Rule 6.2

4 Rule 6.4

5 Rule 9.4

to the...listing.”

b) Licensee 1 advised the vendors’ price expectations to him on 8 December 2018 in relation to another client (not the Complainant and his son-in-law);

c) The price expectation was also conveyed to him by Licensee 2 during the viewing on 24

December 2018.

3.18. Licensee 2 explains his role in this transaction as being to provide access to the Property while Licensee 1 was away on holiday. He was not otherwise involved in the listing for the sale of the Property. He did not know anything about the vendors’ price expectations. He cannot recall if he spoke with the Complainant and his son-in-law but he might have told them the CV.

3.19. The Committee is satisfied that Licensee 1 had no communication with and provided no information to the Complainant and his son-in-law about the vendors’ price expectations for the Property.

3.20. The Committee is satisfied Licensee 2 provided no information to the Complainant and/or his son-

in-law about the vendors’ price expectations for the Property.

3.21. The Complainant says, prior to the auction, the Conjunctional Agent advised him the asking price was based on a CV of $2.9 million for the house and $1.1 million for the section. The Complainant also says, at the viewing on 24 December 2018, the Conjunctional Agent told him and his son-in- law that their belief the asking price for the Property (house and section) was $2.9 million was incorrect. The Complainant does not say Licensee 2 advised him of anything.

3.22. The inference from the Complainant’s allegation that Licensee 2 “agreed” with what the

Conjunctional Agent said to the Complainant and his son-in-law at the viewing on 24 December

2018 implies that this was said in the hearing of Licensee 2. The Committee finds it is not proved Licensee 2 agreed with what the Conjunctional Agent said. The evidence does not tell it how Licensee 2 expressed or communicated this agreement. Also, if Licensee 2 mentioned the CV it is possible the Conjunctional Agent and the Complainant interpreted this to be the expression of an opinion about the vendors’ price expectations. The Committee accepts the evidence of Licensee

2 about his limited engagement with the Property and infers his knowledge was insufficient for

him to be able to agree or disagree.

3.23. The Conjunctional Agent says Licensee 1 advised the vendors’ price expectation to him on 8

December 2018 but does not say how or what she said. He says that at the viewing on 24

December 2018 Licensee 2 also conveyed the vendors price expectation but he does not say what

Licensee 2 said.

3.24. The Committee finds it is not proved that either Licensee 1 or Licensee 2 misled the Conjunctional

Agent as to the vendors’ price expectations for the following reasons:

a) The evidence of the Conjunctional Agent lacks credibility. He does not say what was said to him by the Licensees;

b) Although Licensee 1 does not specifically address this allegation in her evidence to the Committee 6 the Committee infers from her Lawyers submissions that she denies the allegation. The lawyer submits, “[Licensee 1] has no knowledge of what [the Conjunctional Agent] told his clients or how he formed a view on the vendor’s price expectations.”

c) That Licensee 1 would mislead the Conjunctional Agent as to the vendors price expectations is inconsistent with her telling the Complainants brother-in-law (Individual A) and another prospective purchaser (Individual B) on 8 October 2018 (prior to the auction) that they had a chance to purchase the Property at $3 million plus. It is also inconsistent with her telling

6 Statement of Licensee 1 dated 27 September 2019

Individual A after the auction that any offer $2.9 million plus would be presented7;

d) The evidence of the Conjunctional Agent is inconsistent with the evidence of Licensee 2 who says he had no knowledge of the vendors’ price expectations and did not provide any advice about it (and which the Committee accepts).

Information provided to other potential purchasers

3.25. The complaint includes an allegation that the Licensees provided inconsistent information about the vendors’ price expectations to other potential purchasers.

Complainants brother-in-law (Individual A)

3.26. Individual A says he attended an open home prior to the auction (the auction took place on 10

October 2018) and after that the agent followed up with him. 8 Prior to the auction “she” 9

contacted him and told him the bidding would start at $2.6 million “...and I could well own it for that.”

3.27. He did not attend the auction. He is aware that the Complainant and the Complainant’s son-in- law viewed the Property around Christmas time and were “...quoted $2.9 million for the house and a further million for the section. I told [the Complainant] it was $2.6 million but he thought I had the figures wrong.”

3.28. There is an email from the Complainant to his son-in-law dated 29 September 2018 where he tells his son-in-law “...They advised [Individual A] that the auction will open at $3.5M and they will probably look at offers around $3.5M and higher prior to the auction.”

3.29. There is an email from the Complainant to his son-in-law on 12 October 2018 at 7:32PM (so after the auction) where he advises “Now looking for offers $2.9+.”

3.30. Licensee 1 says that she advised Individual A prior to the auction he might have a chance to purchase the property at $3 million plus. She says that after the auction she messaged Individual A and said she would present offers over $2.9 million to the vendors.

3.31. There is a text message from Licensee 1 to Individual A on 8 October 2018 following up his visit to the open home. Licensee 1 provides information about the auction and goes on to say “$3M plus you have a chance to buy it, it is super value comparing to CV $4.5m. The vendor must sell.”

3.32. There is a text message from Licensee 1 to Individual A on 10 October 2018 which she says was sent just after the auction. The time cannot be ascertained from the screenshot of the text other than it is sent in the afternoon. The relevant part of the message says “Any offer $2.9m plus can be presented and negotiated with the vendor. It is super value comparing to CV$4.5M, please let me know if you are interested in it.”

3.33. The Committee takes from the evidence of Licensee 1 that she denies telling Individual A the auction bidding would start at $2.6 million and he could well own the Property for that.

3.34. The allegation by Individual A that Licensee 1 told him the bidding would start at $2.6 million and he could well own the Property for that is inconsistent with the email from the Complainant to his son-in-law where he advises that Individual A has told him the auction will open at $3.5 million and they will probably look at offers of $3.5 million or higher prior to the auction. The information being passed to his son-in-law must have come from Individual A. The allegation is also

inconsistent with the email from Licensee 1 to Individual A just prior to the auction when she tells him he has a chance to purchase the Property at $3 million plus.

3.35. The allegation is also inconsistent with the evidence of Licensee 1 and with her text to Individual

A on 10 October 2018 advising any offer of $2.9 million plus could be presented to the vendor. It

7 What Licensee 1 told Individual A and Individual B is discussed in more detail in the next sections of this decision

8 He would appear to be referring to Licensee 1

9 The ‘she’ can only be Licensee 1

is also inconsistent with the email from the Complainant to his son-in-law on 12 October 2018 where he advises “Now looking for offers $2.9+”. The information the Complainant is passing to his son-in-law must have come from Individual A via Licensee 1.

3.36. The Committee does not find it proved that Licensee 1 told Individual A the bidding would open at $2.6 million and he might own the Property for that.

3.37. The information that Licensee 1 passed to Individual A is consistent with the vendors’ then price expectations - based on their setting a $3 million reserve for the auction.

Individual B

3.38. Individual B was asked if she wished to make a complaint. She confirmed to the Committee that she did not.

3.39. In an email to an Authority facilitator on 15 April 2019 Individual B says:

a) She was the only person at the auction and she and her husband were very interested in the

Property;

b) She had many conversations, emails and texts with the agent;

c) A few weeks after the auction Licensee 1 told her the price was $2.9 million for the house and

$1.1 million for the section;

d) She was never updated on the vendors’ price expectations/intentions of selling well below the

CV.

3.40. Licensee 1 says she contacted Individual B before the auction to tell her she had a chance to purchase the Property at $3 million plus. She says she updated Individual B when offers were received and, on 10 December 2018, Individual B asked her how much the house alone was worth. She told Individual B the CV for the house was $2.9 million but that offers of $2.2 million plus could be negotiated.

3.41. The Committee takes from the evidence of Licensee 1 that she disputes the allegation that she told Individual B a few weeks after the auction that the price was $2.9 million for the house and

$1.1 million for the section.

3.42. There is a text message from Licensee 1 to Individual B just prior to the auction where she provides information to Individual B about the auction and says “$3m plus you have a chance to buy it, it is super value comparing to a CV $4.5m.” There is a text message from Licensee 1 to Individual B on

14 December 2018 asking if Individual B has received a sale and purchase agreement and if she has any questions. There is a further text from Licensee 1 to Individual B on 12 January 2019 saying someone is interested in the Property and encouraging her to make an offer.

3.43. The Committee is conscious that Individual B in her email of 15 April 2019 is recollecting events that occurred around 6 months earlier. She has not disclosed having made any contemporaneous notes and has not provided any of the emails or text messages she says were exchanged between her and Licensee 1.

3.44. Licensee 1 advising Individual B after the auction that offers of $2.2 million plus could be negotiated for the house is consistent with the vendors countersigning an offer of $2.58 million for the house on 13 October 2018.

3.45. It is unlikely that Licensee 1 would tell Individual B a few weeks after the auction that the price was $2.9 million for the house and $1.1 million for the section when she had told her before the auction that she had a chance to purchase the Property (both house and section) for $3 million plus and when Licensee 1 was telling Individual A after the auction that offers over $2.9 million would be presented.

Finding on this ground of complaint

3.46. The Committee does not find it proved that the Licensees provided any information to the Complainant and/or his son-in-law about the vendors’ price expectations. It follows that they did not provide any inconsistent or misleading information about the vendors’ price expectations to the Complainant and/or his son-in-law.

3.47. The person that provided the Complainant and his son-in-law with advice about the vendors’ price expectations is the Conjunctional Agent.

3.48. The Committee does not find it proved that Licensee 1 provided any misleading or inconsistent information to Individual A about the vendors’ price expectations.

3.49. The Committee does not find it proved that Licensee 1 provided any misleading or inconsistent information to Individual B about the vendors’ price expectations.

3.50. The Committee takes no further action on this ground of complaint.

Son-in-law not being given an opportunity to purchase the Property

3.51. A licensee must deal fairly with the parties to a transaction.10

3.52. The essence of this ground of complaint is that the Complainant and/or his son-in-law were deprived of an opportunity to purchase the Property due to having incorrect and misleading information about the vendors’ price expectations and because the Licensees did not contact them after viewing on 24 December 2018.

3.53. The Committee has addressed the allegation that the Licensees provided incorrect and misleading information about the vendors’ price expectations above and it has decided to take no further action on that ground of complaint.

3.54. In an email to an Authority facilitator on 29 May 2019 the Complainant asks if Licensee 2 knew about the offer for $2.3 million and, if he did, why he didn’t contact the Conjunctional Agent about

it.

3.55. In an email to an Authority facilitator on 25 July 2019 the Complainant says it was not up to the Conjunctional Agent to sell the Property as he was not the agent and he had done his job by introducing him and his son-in-law.

3.56. Licensee 1 did not conduct any follow-up with the Complainant or his son-in-law. She did not contact them to invite an offer when she knew the eventual purchaser was going to make an offer (and for less than prior offers). She did contact other known interested parties including Individual B. Licensee 1 says she did not know the names of the Complainant and his son-in-law (this information not being provided by the Conjunctional Agent) and she did not know they were interested in the Property after their viewing on 24 December 2018. The Conjunctional Agent had not followed up with her so she thought the Complainant and his son-in-law were not interested in the Property.

3.57. Licensee 2 says prior to the viewing on 24 December 2018 the only contact he had with the Conjunctional Agent was to confirm a viewing time by text. He says he told the Conjunctional Agent he was just helping Licensee 1 by opening the Property and “...he should talk directly to her [Licensee 1] about the price and making an offer.” He also indicated that he would open the Property again if the clients wanted another viewing.

3.58. There is no evidence that Licensee 2 had any knowledge of the offer by the eventual purchaser.

This is consistent with his limited role in in this transaction.

3.59. The key issue here is the role and responsibilities of the Conjunctional Agent compared with the role and responsibilities of the Licensees. The Complainant considers that the Conjunctional Agent had done his job by introducing the Complainant and his son-in-law to the Property. The

10 Rule 6.2

Committee does not agree.

3.60. The Complainant and his son-in-law were customers of the Conjunctional Agent. He had a conjunctional arrangement with the agency for whom the Licensees worked. He describes the Complainant as “his client” in his evidence to the Committee. The Conjunctional Agent had brought another prospective purchaser to the Property earlier in December 2018. In an email to Licensee 1 about that purchaser’s lack of interest he advised “My purchases feel the property is a bit to dated...” and “...I will keep it in mind for future buyers.” In a text message to the Conjunctional Agent about the Complainant viewing the Property in December 2018 Licensee 1 refers to “your buyer”. In the email to the Conjunctional Agent after the viewing on 24 December

2018 providing the property information pack Licensee 1 says “many thanks for bringing your buyer to view the property.”

3.61. The Committee is of the opinion that it was not the responsibility of the Licensees to follow-up with the Complainant and/or his son-in-law after the viewing on 24 December 2018. The Complainant and his son-in-law were being represented by the Conjunctional Agent who was their point of contact with the Licensees. It was the responsibility of the Conjunctional Agent to follow- up with the Complainant and/or his son-in-law and it was not unreasonable for the Licensees to expect that he would do so and that he would advise them if the Complainant and/or his son-in- law had any interest in the Property.

3.62. The opinion of the Committee is supported by the REINZ information sheet on conjunctional arrangements. The conjunction agent works with the buyer.

3.63. In the particular circumstances of this case the Committee finds no evidence to support a finding that the Licensees treated the Complainant and/or his son-in-law unfairly.

3.64. The Committee finds it is not proved that the Licensees deprived the Complainant and/or his son-

in-law of an opportunity to purchase the Property. The Committee takes no further action on this ground of complaint.

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:// ww w. justice. gov t. nz/ tri bunal s/ real -estate -agents/ ).

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 Licensee 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

Peter Brock

Date: 14 February 2020

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 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.

111 Appeal to Tribunal against determination by Committee

(1) A person affected by a determination of a Committee may appeal to the Disciplinary Tribunal against the determination within 20 working days after the day on which notice of the relevant decision was given under section 81 or 94, except that no appeal may be made against a determination under section 89(2)(a) that a complaint or an allegation be considered by the Disciplinary Tribunal.

(1A) The Disciplinary Tribunal may accept a late appeal no later than 60 working days after the day on which notice was given to the appellant if it is satisfied that exceptional circumstances prevented the appeal from being made in time.

(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

(ab) the prescribed fee, if any; 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 6.2 A licensee must act in good faith and deal fairly with all parties engaged in a transaction.

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 9.4 A licensee must not mislead customers as to the price expectations of the client.