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New Zealand Real Estate Agents Authority |
Last Updated: 21 November 2022
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Before the Complaints Assessment Committee
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In the matter of
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Complaint No: C37411
Part 4 of the Real Estate Agents Act 2008
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and
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Licensee 1:
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Tonya Cowlishaw (20073154)
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Licensee 2:
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Licensee 2 (XXXXXXXX)
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Licensee 3:
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Dianna Schulz (20034403)
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Decision finding unsatisfactory conduct in the matter of Tonya Cowlishaw – asking for submissions on orders
Decision finding no further action in the matter of Licensee 2
Decision finding unsatisfactory conduct in the matter of Dianna Schulz– asking for submissions on orders
7 December 2021
Members of Complaints Assessment Committee: CAC2107 Chairperson: Gayatri Jaduram
Deputy Chairperson: Patrick Waite
Panel Member: Anthony Hutchinson
Complaints Assessment Committee
Decision to take no further action:
Decision finding unsatisfactory conduct – asking for submissions on orders:
1.1. On 8 July 2020 the Real Estate Agents Authority (the Authority) received a complaint against Tonya Cowlishaw (Licensee 1) and Licensee 2 from the Complainant.
1.2. Licensee 1 is a licensed Salesperson under the Real Estate Agents Act 2008 (the Act) and, at the time of the conduct, was engaged by Summit Real Estate Limited (the Agency).
1.3. Licensee 2 is a licensed Agent under the Act. Licensee 2 was at the time of the conduct the sole director and a beneficial owner of the Agency.
1.4. The Committee also decided to inquire into the conduct of Dianna Shulz (Licensee 3) under section 78(b) of the Act.
1.5. The complaint relates to a property situated at a residential property (the Property).
1.6. The details of the complaint are that:
- Licensee 1 knowingly misrepresented the number of bedrooms the Property contained in the Agency’s advertising.
- Licensee 2 as director of the Agency did not ensure that Licensee 1’s work was checked and was correct.
1.7. In particular, the Complainant said that:
- She was searching for a three-bedroom home.
- She became interested in the Property as it was being advertised by Licensee 1 as having one large bedroom upstairs and two single bedrooms on the lower level.
- On 24 February 2019 she and the vendors (Vendors) of the Property entered into a conditional Agreement for Sale and Purchase of Real Estate for a purchase price of
$629,000.
whether it was possible to install windows in the two store rooms so that they could become consented bedrooms, or whether there were other structural alternatives. The engineers report concluded that there were no feasible options.
1.8. The Complainant requested a remedy, being:
- Compensation for her financial losses because of the misrepresentation, including
loss in value, lost rental income, valuation fees, engineer’s report fees and legal fees.
1.9. The Licensee 1, Licensee 2 and Licensee 3 responded as follows.
Response: Licensee 1
1.10. Licensee 1 responded to the complaint against her. In particular, Licensee 1 said:
- She believed the Property was a 3-bedroom property.
- The Vendors presented the Property as a 3-bedroom property.
- The smaller room had a bed and a bedside table, and the larger room had a bed, a chest of drawers and some shelves.
- The Agency’s listing agreement, which was signed off by the Vendors, clearly identifies the Property as having 3 bedrooms.
- The Property Guru search had the Property listed as a 2 bedroom but was listed somewhere else as a 1 bedroom, so there’s “confusion all round”, and that Property Guru is sometimes incorrect.
- At the time she wasn’t aware of the requirement for a bedroom to have a window.
- Licensee 3 viewed the Property and should have been able to guide her and point out that two of the rooms did not meet the legal requirement to be classified as a
bedroom.
Response: Licensee 2
1.11. Licensee 2 responded to the complaint against him. In particular, Licensee 2 said:
- Licensee 1 didn’t follow her training which led to the marketing of the Property in breach of Section 13 of the Fair Trading Act 1986.
- They relied on the information provided by the Vendors.
Response: Licensee 3
1.12. Licensee 3 responded. In particular, Licensee 3 said:
- She and other Agency licensees viewed the Property but were unable to pick up that
it was only consented as a 1-bedroom property, as it was presented by the Vendors as a 3-bedroom home.
2. What we decided
2.1. On 29 October 2020 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. The Committee considered the complaint also raised issues about the conduct of Licensee 3
in relation to the supervision of Licensee 1. The Committee also subsequently considered that the complaint raised an additional issue as to whether Licensee 3 knew, or ought to have
known, about the number of bedrooms at the Property. Therefore, the Committee decided to inquire into the conduct of Licensee 3 in relation to that issue under section 78(b) of the Act.
2.3. On 8 April 2021 and (in relation to the issue referred to in (c) below) on 5 July 2021 the Committee held hearings on the papers and considered all the information that had been gathered during the inquiry in relation to the following issues:
Licensee 1
2.4. The Committee found Licensee 1 has engaged in unsatisfactory conduct under section 89(2)(b) 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 (exercise skill care and competence), 6.4 (not mislead or withhold information which should be provided) and 10.7 (disclosure of defects).
Licensee 2
2.5. The Committee decided to take no further action on the complaint against Licensee 2.
2.6. This decision was made under section 89(2)(c) of the Act. The decision was also made with reference to section 50 of the Act.
Licensee 3
2.7. The Committee found Licensee 3 has engaged in unsatisfactory conduct under section 89(2)(b) of the Act. The decision was also made with reference to section 50 of the Act.
3. Our reasons for the decision
3.1. On the complaint against Licensee 1 and Licensee 3, the Committee found that, under section 72(a) and (b) of the Act, Licensee 1 and Licensee 3 were guilty of unsatisfactory conduct.
3.2. The Committee concluded:
Did Licensee 1 misrepresent or mislead the Complainant about the number of bedrooms at the property
3.3 Rule 6.4 provides that “a licensee must not mislead a customer, provide false information or withhold information that should in fairness be provided to a customer”.
3.4 Licensee 1 appraised the property in the presence of one of the Vendors. The interior was set out as a 3 bedroom dwelling. The Vendor made no comment to the contrary.
3.5 In her interview with the Authority’s investigator Licensee 1 said that the Property Guru search she obtained showed it was a 2 bedroom. There was also a floor plan in the Agency’s Property file which showed the Property was consented as a 1 bedroom not a 3 bedroom dwelling.
3.6 Licensee 2 mentions that Licensee 1 did not follow her training and that the Vendors gave incorrect information to the Agency.
3.7 Licensee 3 also mentions the information was provided by the Vendors and that Licensee 1
listed the Property as a 3 bedroom dwelling even though the Property Guru search showed it as a 2 bedroom.
3.8 Licensee 1 also says at the time she did not know that a bedroom had to have a window. In this regard she appears to have relied on the following:
- the information provided by the Vendors and that they staged the rooms downstairs as bedrooms;
- the Agency’s other licensees viewed the Property and that they didn’t raise any concerns about the rooms; and
- for Licensee 3 to check her work.
3.9 In summary the information about the number of bedrooms in the Property is as follows:
- the Vendors information to the Agency and their staging of the Property presented it as a 3 bedroom dwelling;
- Property Guru showed it as a 2 bedroom dwelling; and
- the floor plan from the Agency’s file showed it as a 1 bedroom dwelling.
3.10 Licensee 1 says she was confused as to Property Guru’s reference to 2 bedrooms, the
floorplan’s reference to 1 bedroom, and that her inexperience and newness to the industry contributed to the error. She says sometimes Property Guru is incorrect. She accepts she made an error and advertised the Property as having 3 bedrooms.
3.11 The Committee makes the following comments:
- Licensee 1 had said the Property was listed somewhere else as a 1 bedroom. This would have been the floor plan from the Agency’s Property file so clearly Licensee 1 had looked at the floorplan.
- If Licensee 1 was confused (she said there’s “confusion all round”) she should have sought help from the branch manager (Licensee 3) and made further enquiries. It is not enough to say sometimes Property Guru is incorrect or that she would have relied on Licensee 3 to check her work.
- The Property was presented by the Vendors as a 3 bedroom, Property Guru showed it as a 2 bedroom and the floorplan in Agency’s file had it as a 1 bedroom. Three
different sources (as such) were all showing a different number of bedrooms. These should have been clear red flags for the purpose of Rule 10.7.
errors. The Committee also notes that Licensee 1 was first registered under the Act as a licensee in September 2017. At the time of the conduct she had 15 months experience. On her webpage for the agency she currently works for she says:
[That] within her first year [she] hit the ground running with 22 listings and 17 sales.
Even though she might have been relatively new to the industry at the relevant time, the number of listings in her first year of 22 suggests a reasonable level of experience enough to know that if she was confused about the number of bedrooms she should have sought help.
3.12 Rule 5.1 provides that a “licensee must exercise skill, care, competence and diligence at all times when carrying out real estate agency work”.
3.13 Rule 6.4 provides that a “licensee must not mislead a customer or client, nor provide false information...”
3.14 Rule 10.7 says that although a licensee is not required to discover hidden or underlying defects they must disclose known defects. That rule goes on further to say that where it would appear likely to a reasonably competent licensee that the land could be subject to hidden or underlying defects the licensee must either - get confirmation from the client
supported by evidence or expert advice; or ensure the customer is informed of the potential risk and that the customer can seek expert advice.
3.15 In the light of Licensee 1’s admission that she was confused as to the Property Guru file’s reference to 2 bedrooms, the floorplan’s reference to 1 bedroom meant she should have
sought help from the branch manager (Licensee 3) and made further enquiries. As mentioned above the inconsistent references to the number of bedrooms were clear red flags. This
would signal to a reasonably competent licensee that further action was required. Licensee 1 could have sought that information from the client or informed consumers about the issue. She unfortunately did neither.
3.16 For the reasons above the Committee finds that Licensee 1 breached:
- Rule 6.4 by misleading the Complainant about the number of bedrooms at the Property. She should not have advertised the Property as having one large bedroom upstairs and two single bedrooms on the lower level. Advertising the Property as having 3 bedrooms was wrong.
- Rule 5.1 by not exercising skill, care, competence and diligence. She should have sought help if she was confused.
- Rule 10.7 as a reasonably competent licensee, by not seeking information from the client or informing customers about the issue.
Did either Licensee 2 or Licensee 3 fail to properly supervise Licensee 1
3.17 Section 50(1) of the Act says that a “salesperson must, in carrying out any agency work, be properly supervised and managed by an agent or a branch manager”.
3.18 Section 50(2) says “properly supervised and managed means that the agency work is carried out under such direction and control of either a branch manager or an agent as is sufficient to ensure—
- (a) that the work is performed competently; and
- (b) that the work complies with the requirements of this Act”
3.19 Licensee 2 is based in the Location A office. The office where Licensee 1 worked from is in Picton. The Agency employed Licensee 3 as the branch manager to run the Picton office. Therefore, it was not Licensee 2’s role to supervise and manage the Picton office.
3.20 Licensee 3 acknowledged that Licensee 2 wouldn’t have checked Licensee 1’s work, nor
would he have done any supervision of Licensee 1 as this was her role as the branch manager of the Picton office.
3.21 Accordingly, the Committee takes no further action in relation to this issue against Licensee 2.
Licensee 3
3.22 Licensee 3, as branch manager, is the person whose responsibility it was to properly supervise and manage Licensee 1 for the purposes of section 50 of the Act.
3.23 Licensee 1 said in an (undated) email to the Authority’s investigator said that at every stage of the process, her work was checked by Licensee 3, who reviewed her written appraisal, property flyer, advertising and website text. In a later interview with the investigator (on 17 Decemeber 2020) in answering a question from the investigator as to whether Licensee 3
looked over all her work for the Property, Licensee 1 said, “I can’t remember, I would have definitely gone to her to have a look at my comparative sales but I can’t remember anything other”. In the same interview the investigator also asked if she recalled whether Licensee 3 went over the appraisal of the Property with her. Licensee 1 responded, “I can’t remember absolutely but it’s more than likely because I would because I didn’t want to make a mistake.” The Commitee notes that Licensee 1 does not say whether Licensee 3 checked the Property file and the Property Guru search.
3.24 As mentioned earlier Licensee 3 is the branch manager based in the Picton office where Licensee 1 worked at the relevant time.
3.25 Licensee 3 in her subsequent submissions dated 26 May 2021 says (amongst other things):
We have clear procedures for salespeople to follow at the time of listing. In addition to a search copy of the title, the salesperson is trained to print off a copy of the [Local District Council] (local authority) property report. This is done online at the office. The salesperson receives the content, compares the building consent floor plan to the dwelling’s actual layout. If there are any variances between the two, the salesperson brings the property file and listing details to me. The normal process upon this alert is we would take steps with the vendor to make amendments to the property description.
... When I was appointed Branch Manager of Summit [the Agency] in June 2018, Tonya [Licensee 1] had completed 10 months in real estate. In addition of working closely in the office with Tonya on a daily basis, I was available after hours to discuss and go over a myriad of situations. My review and
overseeing of Tonya’s appraisal, listing, and sales process were consistent. By the time Tonya appraised [the Property] she had approximately 15 months experience...
3.26 Regardless of a salespersons time in the industry someone (for example, the branch manager) should be checking that the documents that the agency requires on the file at the time of listing are in fact all included. This wouldn’t necessarily mean the branch manager would be reading every document in all cases, for example, if the salesperson was
experienced. At 15 months’ experience not all salespersons warrant being called experienced.
In her subsequent submissions Licensee 3 refers to Licensee 1’s webpage at the agency she currently works for where Licensee 1 says in her first year she had 22 listings. Licensee 3 suggests therefore that Licensee 1 was experienced. However this does not mean Licensee 3 was aware of that experience at the relevant time and does not necessarily mean that fact alone would mean Licensee 1 was experienced.
3.27 The Committee is of the view that based on Licensee 1’s 15 months’ experience in the
industry at the relevant time Licensee 3 should have checked all information on the Property file. Her comment of her “review and overseeing of Tonya’s appraisal, listing and sales
process” suggests a more detailed check. The evidence before the Committee shows that Licensee 3 did not check the Property file or if she did it was a glance through. Had she
focused on this she would have sighted the floor plan on file which showed the dwelling was consented as a 1 bedroom not 3 bedrooms and would have seen that the Property Guru
search referred to 2 bedrooms. There was clearly an inconsistency.
3.28 It is no excuse to say that the Vendors gave them false information and (as Licensee 2 says) or that Licensee 1 didn’t follow her training which led to the marketing of the Property in breach of Section 13 of the Fair Trading Act 1986.
3.29 Accordingly, the Committee finds that Licensee 3 breached her obligations under section 50 of the Act by failing to properly supervise and manage Licensee 1.
Did Licensee 3 know or ought she had known, about the number of bedrooms at the Property
3.30 On 26 May 2021 Licensee 3 responded to the questions as to whether she knew, or ought to have known, about the number of bedrooms at the Property which is summarised as follows:
- There were two parts to the question. Firstly, whether she knew about the number of bedrooms and secondly whether she ought to have known about the number of
bedrooms.
agreement was “deceptive and incorrect”. When Licensee 1 presented the appraisal of the Property to the Vendors, the Vendors made no change to the description of
the bedrooms.
downstairs rooms as two bedrooms. She said that one could reasonably expect a suitably qualified building inspector to have reported on any red flags in relation to the bedrooms.
3.31 In her earlier submissions, Licensee 3 said she viewed the Property but was unable to pick up that it was only consented as a 1 bedroom property, as it was presented by the Vendors as a 3 bedroom home.
3.32 In relation to whether Licensee 3 knew about the number of bedrooms at the Property, the Committee concludes there is insufficient evidence to say (on balance) that she did in fact
know the downstairs rooms were not bedrooms. She said that whilst the downstairs rooms meet the size requirements, they do not have an exterior wall window to be compliant. Her comment does not mean she had in fact gone downstairs herself and saw that the rooms did not have a window. Her statement may have been with reference to her knowledge about
what a room should have in order to be a bedroom. She said she didn’t know about the issue until the complaint was made.
3.33 However the Committee concludes that she ought to have known that the rooms were not bedrooms for the following reasons:
- Licensee 3 said she viewed the Property. As the branch manager, if she didn’t go downstairs to see the rooms she should have.
- On the evidence, Licensee 3 did not check the Property file or the Property Guru search or if she did it was a glance through (see paragraph 3.30 above) and therefore failed to properly supervise Licensee 1.
- Had she done either or both of the above she would have known that the rooms were not bedrooms and therefore ought to have known. It is simply not enough to say that the Vendors gave false information and they were deceptive (assuming of course they were), or that the building inspector should have reported on any red
flags relating to the bedrooms, or that very experienced licensed salespeople viewed the Property and not one made any alert of concern about the bedrooms.
3.34 As mentioned above, Licensee 3, as branch manager, is the person whose responsibility it was to properly supervise and manage Licensee 1 for the purposes of section 50 of the Act. In her supervisory role she ought to have checked the rooms downstairs. Accordingly, in relation to
this issue, the Committee finds that Licensee 3 breached her obligations under section 50 of the Act by failing to properly supervise and manage Licensee 1.
4. Request for submissions on orders: Licensee 1 and Licensee 3
4.1 The Complainant is to file submissions (if any) on what orders should be made within ten working days from the date of notice of this decision. These submissions, if any, will then be provided to Licensee 1 and Licensee 3, with a timeframe for filing final submissions.
4.2 The Committee requires the Case Administrator to obtain a record of any previous
disciplinary decision in respect of Licensee 1 and Licensee 3 and, if any such decision exists, provide it to the Committee.
5 What happens next
5.1 The Committee will consider all submissions and issue a decision on orders for Licensee 1 and Licensee 3.
6 Publication
6.1 The Committee has deferred making any decision on publication until its hearing to decide what orders, if any, should be made.
7 Your right to appeal
7.1 A person affected by the Committee’s decision in respect of Licensee 1 and Licensee 3 may appeal to the Real Estate Agents Disciplinary Tribunal within 20 working days after the day the Committee gives notice of its decision on orders, if any.
7.2 If you are affected by the Committee’s decision in respect of Licensee 2, your right to appeal to the Real Estate Agents Disciplinary Tribunal (the Tribunal) is set out in section 111 of the Act. You may appeal in writing to 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.
7.3 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/.
8 Provisions of the Act and Rules referred to
8.1 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
Anthony Hutchinson Member
Date: 7 December 2021
Appendix: Provisions of the Act and Rules referred to
The Real Estate Agents Act 2008 provides:
50 Salespersons must be supervised
(1) A salesperson must, in carrying out any agency work, be properly supervised and managed by an agent or a branch manager.
(2) In this section properly supervised and managed means that the agency work is carried out under such direction and control of either a branch manager or an agent as is sufficient to ensure—
- (a) that the work is performed competently; and
(b) that the work complies with the requirements of this Act
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.
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.
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;
(ha) if the Committee is satisfied that the unsatisfactory conduct involves more than a minor or technical breach of this Act or of any regulations or rules made under this Act, make an order referring the matter to the Disciplinary Tribunal for the Tribunal to consider whether to make a compensation order under section 110(5);
(i) order the licensee to pay the complainant any costs or expenses incurred in respect of the inquiry, investigation, or hearing by the Committee.
(2) An order under this section may be made on and subject to any terms and conditions that the Committee thinks fit.
111 Appeal to Tribunal against determination by Committee
(1) A person affected by a determination of a Committee may appeal to the 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 (licensee to exercise skill, care, competence and diligence)
Rule 6.4 (licensee must not mislead, withhold information)
Rule 10.7 (licensee to obtain further confirmation as to any defects)
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