Complaint No C37588 [2021] NZREAA 54 (25 August 2021)

Last Updated: 28 April 2022

Before the Complaints Assessment Committee

In the matter of	Complaint No: C37588 Part 4 of the Real Estate Agents Act 2008
and
Licensee: Agency:	The Licensee (XXXXXXXX) The Agency (XXXXXXXX)

Decision to take no further action

25 August 2021

Members of Complaints Assessment Committee: CAC2101 Chairperson: Gayatri Jaduram

Deputy Chairperson: Patrick Waite

V20201203

Complaints Assessment Committee

Decision to take no further action

The Complaint

1.1. On 27 July 2020 the Real Estate Authority (the Authority) received a complaint against the Licensee from Complainant 1 and Complainant 2.

1.2. The Licensee is a licensed Salesperson under the Real Estate Agents Act 2008 (the Act). At the time of the conduct the Licensee worked at the Agency.

1.3. The complaint relates to a property situated at the Property which was, before it was sold, owned by Complainant 2. Complainant 2 lives overseas and granted a power of attorney (in November 1985) to Complainant 1 in relation to his New Zealand interests. A certificate of non-revocation of power of attorney was signed by Complainant 1 confirming that as at 21 July 2020 (the date he signed the certificate) the power of attorney had not been revoked at the time of the complaint.

1.4. The details of the complaint are that:

1. The Licensee altered a binding sale and purchase agreement, without appropriate authorisation.
   
2. The Licensee attempted to shift the blame onto Complainant 1 for the unauthorised alteration to the contract.
   

100. The Licensee misled Complainant 1 about the purchaser’s intentions for the Property, which led to Complainant 2 not counter-offering on a purchaser’s offer.
     

4. It was agreed that the Agency would meet Complainant 2’s legal fees for time spent regarding the deposit matter and this was subsequently revoked. Complainant 1 has had to pay the fee personally and prepare and pursue a Disputes Tribunal claim.
   

1.5. In particular, Complainant 1 said:

1. The Property was listed for sale with the Agency in August 2019.
   
2. The first prospective purchaser was a developer who resided in Country X.
   

100. The Licensee told Complainant 1 that the prospective purchaser intended to re-clad the house and on-sell it.
     

4. Complainant 2 had concerns that a purchaser may not settle and that he would still be liable to pay the Agency’s commission if they got an unconditional contract.
   
5. Complainant 1 relayed Complainant 2’s concern to the Licensee instructing her to alter the listing agreement to show that Complainant 2 would not be liable to pay the commission until the Property settled.
   
6. The Licensee altered the listing agreement incorrectly to state:
   

Deposit to be paid to Vendor’s Trust account agent not to be paid until settlement.

7. The Licensee’s wording was not what was intended and that it should have referred to when the commission would be paid, not the deposit.

8. Complainant 1 then wrote on the listing agreement:
   

There is no liability for the land agent’s commission until final settlement has been completed.

1. The Licensee did not cross out the alteration she made earlier, relating to the deposit.
   

10. The initial offer was cancelled.
    
11. When he was given a copy of the Sale and Purchase Agreement (SPA) relating to the Prospective Buyer it correctly showed that the deposit to be paid to the Complainant 2’s agent (the Public Trust).
    

50. However, when he was then given a second copy of the SPA, it said the deposit was to be paid to the Complainant 2’s solicitors trust account.
    

13. The Licensee made the change without clarification or authorisation from either himself or Complainant 2.
    
14. On noticing the unauthorised change, he called the Licensee, but she did not acknowledge or take responsibility for the alteration.
    
15. During that same call, he told the Licensee that the deposit was to be paid into the Public Trust’s Trust Account, but she gave no commitment to ensure it would be.
    
16. He then received a text message from the Licensee attempting to shift the blame onto him for the unauthorised alteration to the SPA.
    
17. The deposit was paid into Complainant 2’s Solicitor’s trust account, which led to additional legal fees.
    
18. The Licensee caused this situation by her amendments and subsequent misinterpretation of her amendments in the listing agreement.
    
19. The Licensee interpreted the “Vendor’s Trust Account”, to be the Vendor’s solicitor’s Trust Account and then altered the SPA (which was a binding agreement) to reflect

that. By doing this, the Licensee behaved fraudulently.

20. During a pre-inspection of the Property, the Prospective Buyer told him that there was no problem with the cladding and that he would be living at the Property.
    
21. The Licensee misled him and Complainant 2, by saying that like the first prospective purchaser, the Prospective Buyer were intending to reclad the house and on-sell it. This caused them to accept the Prospective Buyer’s offer rather than counteroffering.
    

5. An offer was made by the Agency, to pay Complainant 2’s solicitor’s costs and reduce the commission by $1,000.
   

23. Because the Licensee did not admit any wrongdoing, they (the Complainants) decided to proceed with their complaint to the Authority and so the Agency withdrew their offer.
    

1.6. The Complainants requested a remedy, being:

1. The Licensee be disciplined for what the Complainants consider to be serious misconduct.
   
2. The Agency pay for the time billed to Complainant 2 by his lawyer for dealing with the

matter.

100. Damages for failing to correctly advise the position of the Prospective Buyer in relation to the Property.
     

1.7. The Committee has also decided to, on its own initiative, under section 78(b) of the Act, to inquire into allegations about the Agency’s failure to follow through on an offer to pay the Complainants’ legal fees. The Agency is a licensed Agent under the Act.

1.8. The Licensee responded to the complaint against her.

1.9. In particular, the Licensee said:

1. She fully admits misunderstanding Complainant 1’s instructions in relation to the listing agreement and that she “has apologised to [him] over and over again.”
   
2. There was absolutely no intent to disadvantage Complainant 2 or to behave in a fraudulent manner. The deposit was collected and paid directly to Complainant 2’s

solicitors in a timely manner after she called Complainant 2’s lawyer asking for his Trust Account details.

100. Because the deposit was paid into the Complainant 2’s solicitor’s Trust Account, this supports her earnest belief that she thought she understood Complainant 1’s

instructions.

4. The listing agreement was changed and signed and clearly states that no commission was to be paid until after the Property settled.
   
5. It was her belief was that should they have held the deposit until after settlement, there would have been a lack of funds to pay on settlement. She was under the

impression that Complainant 1 clearly understood the situation.

6. Complainant 1 was not happy with how she wrote the change on the listing agreement and added his comments (in writing in blue pen).
   
7. The instruction she wrote stating “Deposit to be paid to Vendor’s Trust Account. Agent not to be paid until settlement” was not crossed out by Complainant 1 and

Complainant 1 then added in blue pen, “There is no liability for Land Agents commission until final settlement has been completed”.

8. She couldn’t contact the Prospective Buyers at that point to advise the deposit instructions had been changed.
   
9. She called her administrator to advise her that the deposit instructions were changed and to let the Prospective Buyers know this if he was to enquire.
   
10. She didn’t think for one moment that the administrator would have altered the SPA. It is clear the handwriting is not hers (the Licensee’s) showing the administrator changed the deposit instructions.
    
11. The SPA had been approved to be processed and no one from her office picked up the change. She says:
    

Never would any of us consider this would happen as they were all aware that changes have to be initialed – obviously not the administrator who thought she was doing the right thing.

50. It was her intention to send through a variation to the SPA regarding the deposit and she thought that would have covered the change and all would proceed as it should do, since Complainant 2’s lawyer was aware of the situation.
    

13. She says:
    

...we were under time pressure due to the fact the [the Prospective Buyer’s] contract was unconditional in all respects and the deposit was to be paid immediately – that was her focus.

14. She strongly denies attempting to shift the blame on to Complainant 1. She says that she openly admits misunderstanding Complainant 1’s instructions, which she still

believes were open to misinterpretation.

• Complainant 1 had “a very valid point,” but there was no disadvantage and no other

intent than to get the SPA processed, as Complainant 1 wanted it done without delay.

16. She absolutely did not mislead Complainant 1 about the Prospective Buyer’s intentions for the Property.
    
17. Complainant 1 had given her a clear instruction to get an offer of the same value as the prior offer; however, any offer was to be unconditional in all respects.
    
18. The Prospective Buyer had told her that he had lots of friends who were ‘tradies’ who were able to resolve the cladding issues.
    
19. It was not her job to question what a purchaser would do with a property once it was purchased. It was her job to pass on to the Prospective Buyer the issues with the

cladding, which she did.

20. The Prospective Buyer met with other trades people at the Property to discuss the work required and she passed this information on to Complainant 1.
    
21. She later discovered that the Prospective Buyer’s marriage was due to break up and they were purchasing the Property to be close to Prospective Buyer’s other property

which would be easier for his children. This was never discussed with her at the time of purchase.

5. She (on behalf of the Agency) agreed to pay any legal cost’s Complainant 2 had

incurred. She says they did that because it was not in her nature or her business’s best interests to have an unhappy client.

23. An additional offer was made by the Agency to reduce the commission by $1,000 but that was rejected by the Complainants.
    

10. She admits it was a “terrible mistake” in respect to the deposit instructions being changed on the SPA and says it “absolutely horrifies me and still does.”
    

What we decided

2.1. On 4 December 2020 the Complaints Assessment Committee (the Committee) considered the complaint and decided to inquire into it under section 79(2)(e) of the Act. As mentioned above the Committee considered the complaint also raised issues about the Agency.

2.2. Therefore, the Committee decided to inquire into the following issues:

1. Whether the Licensee altered a binding sale and purchase agreement, without

appropriate authorisation.

2. Whether the Licensee:
   
   1. Failed to follow instructions in relation to the listing agreement; and/or
      
   2. Attempted to shift the blame onto Complainant 1 in relation to the listing agreement.
      

100. Whether the Licensee misled Complainant 1 about the purchaser’s intentions for the Property, which led to Complainant 2 not counter-offering on the purchaser’s offer?
     

4. Whether the Agency agreed that it would pay Complainant 2’s legal fees? If so, was that agreement revoked by the Agency and why.
   

2.3. The Committee had rephrased the concern in paragraph 1.4b) above in more general terms (see paragraph 2.2 b) ii above).

2.4. The Committee added an additional issue in relation to the listing agreement. The additional issue (under paragraph 2.2 b) i. above) was included by the Committee on its own initiative under section 78(b) of the Act.

2.5. The Committee had also rephrased the concern paragraph 1.4(d) (see paragraph 2.2(d) above) for clarity as to the issue to be investigated. The concern relates to the Agency’s conduct and (as mentioned above) the Committee included the Agency in its inquiries and investigation under section 78(b) of the Act.

2.6. On 23 April 2021, the Committee held a hearing on the papers and considered all the information gathered during the inquiry.

2.7. Under the Committee’s Decision to inquire dated 10 December 2020, it had also decided to inquire into whether the Licensee had altered the listing agreement after it was signed,

without authorisation. However, the concern related to the alteration in the SPA is set out in paragraph 2.2 a) above. Therefore, the Committee does not need to inquire into whether or not the listing agreement was altered after it was signed. In any event is clear from the letter from Complainant 2’s lawyer (Lawyer A) dated 5 June 2020, that the Licensee was authorised to make a change to the listing agreement (albeit not the wording that the Complainants say they wanted). In that letter, Lawyer A said Complainant 1 was instructed by Complainant 2 “to ensure the listing agreement was altered to ensure no liability arose for ...commission until settlement was completed...”

Licensee

2.8. The Committee has decided to take no further action on the complaint against the Licensee.

2.9. 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 (the Rules), namely Rules 5.1, 6.3, 6.4 and 9.1.

Agency

2.10. The Committee has also decided to take no further action against the Agency.

2.11. This decision was made under section 89(2)(c) of the Act.

Our reasons for the decision

3.1. The Committee concluded:

Whether the Licensee altered a binding sale and purchase agreement, without appropriate authorisation?

3.2. Rule 5.1 of the Rules says:

A licensee must exercise skill, care, competence, and diligence at all times when carrying out real estate agency work.

3.3. Rule 6.3 of the Rules says:

A licensee must not engage in any conduct likely to bring the industry into disrepute.

3.4. The Licensee says the SPA (dated 15 January 2020) was changed by the administrator because the administrator was of the opinion that because of changes to the listing agreement

(relating to the payment of the deposit) that change should be carried over to the SPA.

3.5. The original wording relating to the deposit on the SPA read:

$25,000 to be paid once unconditional to the Public Trust o/a NZ Real Estate Trust Account number...

When the SPA was altered the wording read:

$25,000 to be paid to the vendors solicitor.

3.6. The Committee has read Complainant 1’s post disclosure comments dated 11 March 2021. Those comments were made in response to the post disclosure comments made by the

Director who is a licensed agent with (and the director and majority shareholder of) the

Agency. One of Complainant 1’s comments was he plays golf with the secretary of Regional District Law Society and that:

..he [Complainant 1] ran the whole matter past him and asked him what would happen if a local solicitor had ...altered an original contract. He said that the matter would be taken extremely seriously...

The Committee notes that those comments were made on the assumption that it was the Licensee who altered the SPA.

3.7. The onus is on the Complainants to prove on the balance of probabilities that it was the

Licensee who altered the SPA. There is no evidence to support this. Complainant 1 says that by changing the SPA, the Licensee behaved fraudulently. The Committee notes however that there would be no benefit to the Licensee in altering the deposit provisions in the SPA.

3.8. It is useful set out the sequence of events, which are:

1. The Prospective Buyer’s made an offer on the Property on 12 January 2020 (which

matched the previous offer and was unconditional). At that point there was also the offer (which was conditional) from the previous prospective purchaser.

2. The listing agreement was amended on 13 January. The Licensee wrote in the listing agreement that the “Deposit to be paid to Vendor’s Trust Account ...”
   

100. The offer from the previous prospective purchaser was cancelled sometime after the listing agreement was amended and before the SPA with the Prospective Buyer’s was

signed.

4. The SPA, which was unconditional signed on 15 January 2020, which meant the deposit was due immediately.
   
5. The Licensee says she couldn’t contact the Prospective Buyer at that point to advise the deposit instructions had been changed, so she called her administrator to advise her that the deposit instructions were changed and to let the Prospective Buyer know this if they were to enquire.
   
6. On 16 January (the day after the SPA was signed) the Licensee got the lawyers trust account details from the solicitor acting for Complainant 2, Lawyer A. She passed the details to the Prospective Buyer, who paid the deposit to that trust account.
   

3.9. On the basis of what transpired as set out in paragraph 3.8 above, the evidence does not support a finding that the Licensee altered the SPA after it was signed without authorisation. It is more likely than not that the administrator altered the SPA.

3.10. The Licensee says she regrets “not checking and picking it up”. Her comment does not mean she should have checked. The Licensee would have had no reason to go back and check the SPA after it was signed and it would not be reasonable to expect her to do so when carrying out real agency work.

3.11. Accordingly, the Committee finds that the Licensee did not breach Rules 5.1 and 6.3 and therefore takes no further action against the Licensee in relation to this issue.

Whether the Licensee:

1. Failed to follow instructions in relation to the listing agreement; and/or
   
2. Attempted to shift the blame onto Complainant 1 in relation to the listing agreement.
   

Failed to follow instructions in relation to the listing agreement?

3.12. Rule 9.1 of the Rules says:

A licensee must act in the best interests of the client and act in accordance with the client’s

instructions unless to do so would be contrary to law. [emphasis added]

3.13. Complainant 2 says:

1. he wanted the commission paid when settlement occurred; and
   
2. the deposit was to be paid to the Public Trust.
   

3.14. The Licensee had written into the listing agreement:

Deposit to be paid to Vendors Trust A/c agent not to be paid until settlement

3.15. Complainant 1 initialed this change and added to the listing agreement the following:

THERE IS NO LIABILITY FOR LAND AGENTS COMMISSION UNTIL FINAL SETTLEMENT HAS BEEN COMPLETED

3.16. In relation to the commission, the Licensee wording that “agent not to be paid until settlement”

and Complainant 1’s wording means, in the Committee’s view, the same thing. As mentioned

above Complainant 2 wanted commission paid when settlement occurred which was when the purchase price was paid. “until settlement” means the same thing. In other words,

settlement must have occurred.

3.17. In relation to the payment of the deposit, the Licensee says she understood that the

instructions relating to the payment of the deposit were to the vendors lawyers trust account (being Lawyer A Firm and who are listed on the SPA as Complainant 2’s lawyers).

3.18. It is unclear from the evidence whether Complainant 2’s lawyer had a copy of the SPA on 16 January (the day after it was signed and when the lawyer gave the Licensee the firms trust account details). Assuming they did have a copy they did not pick up that the SPA stated the deposit was to be paid to the Public Trust and they gave the trust account details believing it was to be paid to them.

3.19. It appears that on the listing agreement the Licensee may have inadvertently left off the word “lawyers”, between the words “Vendors” and “Trust”.

3.20. The Licensee says if she had it wrong then Complainant 1 did not change those words so that payment was to be made to the Public Trust when he added the other words relating to the payment of the commission. However, it is likely Complainant 1 did not notice as he was

focused on when the commission was to be paid.

3.21. Complainant 1 says when he noticed the change to the SPA he instructed the Licensee that

the deposit was to be paid into Complainant 2’s agent’s Trust Account (with Public Trust). It is possible the Licensee misunderstood what he meant by “agent” assuming he didn’t specifically mention the Public Trust.

3.22. Lawyer B (Barrister acting for the Agency) points out, in his letter of 24 July 2020:

The issue here is simply that the deposit was paid to your [Lawyer A Firm) trust account rather than to the Public Trust. The Iicensee of my client understood that is what your client wanted, and she tenders apologies for any inconvenience that may have caused.

In the usual course of events, commission is paid to the agent when the deposit is paid by the

purchaser. The deposit is paid to the Public Trust which disburses the commission to the agent... As commission was not payable until after settlement, there was no need for the deposit to be paid to the Public Trust.

3.23. Even though the Licensee later admitted misunderstanding the instructions she does say that was open to misinterpretation. The Committee agrees. It may well have been a

misunderstanding on the Licensee’s part, or it may be that Complainant 2 changed his mind and wanted the deposit to be paid to his solicitor’s trust account.

3.24. There may have been a misunderstanding on the part of the Licensee, but the Committee does not see that as being a breach of Rule 9.1. Further there is also nothing to suggest the Licensee did not act in the “best interests of the client” as required under Rule 9.1.

3.25. A formal apology was given by the Licensee (through Lawyer B – see paragraph 3.22). She had earlier apologised by text on 23 January 2020 (see paragraph 3.29 below).

3.26. The Committee finds that the Licensee did not breach Rule 9.1 and therefore takes no further action against the Licensee in relation to this issue.

Attempted to shift the blame onto Complainant 1 in relation to the listing agreement?

3.27. Rule 6.2 of the Rules says:

A licensee must act in good faith and deal fairly with all parties engaged in a transaction.

3.28. The deposit from the sale was paid into the Complainant 2’s lawyers Trust Account.

Complainant 1 says the Licensee tried to blame him for the fact because of the wording in the listing agreement relating to the payment of the deposit.

3.29. The allegation of blame relates to a text message sent to Complainant 1 from the Licensee on 23 January 2020 which says:

The deposit has been paid to the Vendors Trust Account. He is holding the funds; we have sent a debit note to him for the commission on settlement.

The listing form was amended and initialed by yourself that the deposit was to be paid to the Vendors Lawyers Trust account and there is no liability for Land Agents Commission until final settlement has been completed. This alert was put in our system so that when the contract came through the Vendors lawyer and got his Trust account details and amended the deposit details as per the instructions from

the listing form. If that had not been done we could not release the deposit until after settlement

which would have caused a shortage of funds, I am sorry this has caused you considerable grief but we were acting on instructions from the legal listing form alteration which was signed.

3.30. The Committee finds the text message does not purport to do anything more but to explain what the situation was. There was no blame as such to shift as the Licensee did not think she had done anything wrong in the first place.

3.31. Accordingly, the Committee finds that the Licensee did not breach Rule 6.2 and therefore takes no further action against the Licensee in relation to this issue.

Whether the Licensee misled Complainant 1 about the purchaser’s intentions for the Property, which led to Complainant 2 not counter-offering on the purchaser’s offer?

3.32. Rule 6.4 of the Rules says:

A licensee must not mislead a customer or client, nor provide false information, nor withhold information that should by law or fairness be provided to a customer or client.

3.33. Complainant 1 says when an offer was made by the Prospective Buyer, he was told by the

Licensee and that they, like the previous prospective purchaser, were intending to re-clad the house and on-sell it. He says because of that information Complainant 2 decided not to counter-offer and the Prospective Buyer became the successful purchasers. It transpired that the Prospective Buyer would be living at the Property.

3.34. Lawyer A (solicitor for Complainant 2) says in his letter of 30 June 2020 to the Licensee:

When the Prospective Buyer completed the pre-settlement inspection he advised Complainant 1 that it was to be a family home and they would in fact be living in the property... He also stated that after seeing the thermal imaging he had no problems with the cladding and was quite happy to live there.

As a result of your advice, the Vendor decided that he would not counteroffer. Your obligation as the Vendors’ agent was to acquaint him with the precise situation which you failed to do.

3.35. In response to Lawyer A’s comment. The Agency’s lawyer responded as follows:

It is correct that the Prospective Buyer advised the Licensee he intended to reclad the house and carry out repairs. He said he had several friends who were tradespeople and they would assist him. The

licensee had discussed the cladding with the Prospective Buyer (as she was obliged to do) and he said he had no issue with the type of cladding.

At no time did the Prospective Buyer advise the Licensee that he intended to live in the house, so the allegation ...that the Licensee failed to inform your client is categorically rejected. The Licensee

obviously could not provide information to your client that she did not possess.

The instruction given to the Licensee by Complainant 1 was to obtain a similar offer to the first offer. That is precisely what the Licensee did, and the Prospective Buyer post-sale intentions are irrelevant.

3.36. The Licensee said she later discovered that the Prospective Buyer marriage was due to break up and they were purchasing the Property to be close to the Prospective Buyer other

property which would be easier for his children. She said this was never discussed with her at the time of purchase.

3.37. The Agency’s lawyer is correct in saying the Licensee was obliged to disclose the cladding with the Prospective Buyer. The listing agreement refers to the weather-tightness issues due to the cladding in the “Disclosures” section.

3.38. The onus is on the Complainants to prove on the balance of probabilities that the Licensee misled them. There is no evidence to support a finding that the Licensee knew the Prospective Buyer were keeping the Property at the time they submitted their offer.

3.39. The Committee notes that the Complainants have not disputed what the Licensee has said in relation to the instructions given by Complainant 1, which was to get a similar offer to the first offer but that the offer had to be unconditional. The Licensee got that.

3.40. Accordingly, the Committee finds that the Licensee did not breach Rule 6.4 and therefore takes no further action against the Licensee in relation to this issue.

Whether the Agency agreed that it would pay Complainant 2’s legal fees? If so, was that agreement revoked by the Agency and why?

3.41. The Agency (through its lawyer by letter dated 17 August 2020) offered to pay Complainant 2’s legal costs of $1,150.00 including GST on the basis its commission be paid. That offer was withdrawn by the Agency (through its lawyer by letter dated 31 August 2020). That letter (in part) says:

My client has been very reasonable and extremely patient throughout this process and has attempted to address the issues raised by your client by offering a discount on the amount of commission and/or paying your legal fees.

The issues raised by your client are vexatious and frivolous and appear to be a little more than a cynical stratagem to avoid paying commission. The allegation of ‘potential fraud’ is categorically denied.

As your client has elected to make a complaint to the Real Estate Authority, all offers ...are now withdrawn.

3.42. The Committee notes that this is just something that happens in a dispute between parties where negotiation has failed and is not a disciplinary concern warranting an unsatisfactory conduct finding.

3.43. Accordingly, the Committee takes no further action against the Agency in relation to this issue.

Publication

4.1. The Committee directs publication of its decision. This decision will be published without the names or identifying details of the Complainants (including the address of the Property), the Licensee, the Agency and any third parties.

4.2. 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.

4.3. 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.

Your right to appeal

5.1. If you are affected by this decision of the Committee, the right to appeal is set out in section 111 of the Act. 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 the 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.

5.2. The Notice of Appeal form, which includes information on filing an appeal, can be located on the Ministry of Justice’s website: https://www.justice.govt.nz/tribunals/real-estate-

agents/apply/.

Provisions of the Act and Rules referred to

6.1. The provisions of the Act and the Rules referred to in this decision are set out in the Appendix.

Signed

Gayatri Jaduram Chairperson

Patrick Waite

Deputy Chairperson Date: 25 August 2021

Appendix: Provisions of the Act and Rules referred to

The Real Estate Agents Act 2008 provides:

78 Functions of Committees

The functions of each Committee are—

(a) to inquire into and investigate complaints made under section 74:
(b) on its own initiative, to inquire into and investigate allegations about any licensee:
(c) to promote, in appropriate cases, the resolution of complaints by negotiation, conciliation, or mediation:
(d) to make final determinations in relation to complaints, inquiries, or investigations:
(e) to lay, and prosecute, charges before the Disciplinary Tribunal:
(f) in appropriate cases, to refer the complaint to another agency:
(g) to inform the complainant and the person complained about of its decision, reasons for the decision, and appeal rights:
(h) to publish its decisions.

79 Procedure on receipt of complaint

(1) As soon as practicable after receiving a complaint concerning a licensee, a Committee must consider the complaint and determine whether to inquire into it.
(2) The Committee may—

• (a) determine that the complaint alleges neither unsatisfactory conduct nor misconduct and dismiss it accordingly:
• (b) determine that the complaint discloses only an inconsequential matter, and for this reason need not be pursued:
• (c) determine that the complaint is frivolous or vexatious or not made in good faith, and for this reason need not be pursued:
• (d) determine that the complaint should be referred to another agency, and refer it accordingly:
• (e) determine to inquire into the complaint.
  

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 Rules from the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012 referred to in this decision are:

Rule 5.1 A licensee must exercise skill, care, competence, and diligence at all times when carrying out real estate agency work.

Rule 6.2 A licensee must act in good faith and deal fairly with all parties engaged in a transaction.

Rule 6.3 A licensee must not engage in any conduct likely to bring the industry into disrepute.

Rule 6.4 A licensee must not mislead a customer or client, nor provide false

information, nor withhold information that should by law or fairness be provided to a customer or client.

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