Complaint No C26466 [2022] NZREAA 62 (23 May 2022)

Last Updated: 4 May 2023

Before the Complaints Assessment Committee
In the matter of	Complaint No: C26466 Part 4 of the Real Estate Agents Act 2008
and
Licensee:	The Licensee (XXXXXXXX)

Decision to take no further action

23 May 2022

Members of Complaints Assessment Committee: CAC1905 Chairperson: Maria McElwee

Deputy Chairperson: Amanda Elliott

Complaints Assessment Committee

Decision to take no further action

1. The Complaint

1.1. On 22 June 2018 the Real Estate Agents Authority (the Authority) received a complaint against the Licensee from the Complainant.

1.2. The Licensee is currently licensed as an Agent under the Real Estate Agents Act 2008 (Act) and held a license at the time the relevant conduct occurred.

Background

1.3. In 2008 the Complainant was a tutor/team leader of the real estate faculty at (Organisation A) in Location A. At the time he held an Agent licence. The Licensee was a student of organisation A studying to become a real estate salesperson. Although not the Licensee’s tutor, the

Complainant was asked to assess some of the Licensee’s work and conducted a face-to-face assessment with the Licensee. The Licensee failed that assessment.

1.4. The Complainant alleges that around this time the Licensee invited him out to dinner which the Complainant declined. A few days later the Complainant was approached by his manager (the Manager) and was told that the Licensee had accused him of:

• (a) sexually abusing her and demanding extra cash;
  
• (b) interfering in her obtaining a diploma; and
  
• (c) further unspecified sexual abuse, theft and corruption
  

1.5. The matter was dealt with in house by organisation A in location A and as a result the

Complainant had no further contact with the Licensee and continued to work for organisation A. The Complainant claims his Manager at the time and organisation A expressed no concern with his conduct.

1.6. In 2015 the Complainant was employed as a Head Tutor at (organisation B), a tertiary education provider for real estate refresher training. The Licensee enrolled in verifiable training. The

Licensee became aware the Complainant was employed by the college.

1.7. On 14 December 2015, the Licensee lodged a complaint with the Authority about, among other matters, the alleged incident in 2008 while the Complainant was at organisation A. The

Licensee’s complaint made allegations about:

(a) Organisation B and a failure to receipt a $300.00 course fee;

(b) Organisation B’s failure to provide a complete workbook for the continuing education course in which the Licensee was enrolled. This conduct took place between 8 December 2015 and 14 December 2015; and

(c) the Complainant during the time he had previously worked at organisation A. Although no time period was specified in the complaint form, the Complainant has clarified that the

relevant time was during 2008. The conduct complained about by the Licensee was that the Complainant:

“did sexual abuse and demanding extra cash ... I gave him some extra cash but [organisation A] did not receive the money. [The Complainant] interfered a lot for my

obtaining my real estate diploma. I believe that all this [organisation B] is controlled by [the Complainant].”

1.8. On 15 December 2015, the Licensee made a complaint in similar terms to the New Zealand

Qualifications Authority (NZQA). NZQA responded to the Licensee’s complaint by way of letter dated 22 January 2016. NZQA considered the concerns regarding the course materials had been resolved and that any allegations of sexual harassment/abuse were matters for the Police. As such, NZQA determined not to conduct an investigation into the complaint.

1.9. On 3 February 2016, an Early Resolution Facilitator from the Authority spoke to the Licensee. The Licensee gave further details of her complaint, including that:

• (a) the Complainant told her that he wanted to come to her house; and
  
• (b) took her in to a carpark where he touched her back.
  

1.10. On 4 February 2016, the Authority responded to the Licensee’s complaint by way of letter. The

Authority decided to take no further action in respect of the complaint. The Authority’s response noted its understanding that the matter about the course fee and materials was now dealt with. In respect of the remaining allegations, the Authority’s position was:

” The allegations relating to [the Complainant’s] inappropriate behaviour are serious and we refer you to [organisation A], being the appropriate organisation to investigate this matter further. You can request [organisation A] to advise the Authority of the outcome of their investigation. The

Authority can then re-consider this matter and decide if any further action is required on our part.

We also suggest you report your allegations of [the Complainant’s] inappropriate behaviour to the Police.”

1.11. In relation to the allegation of inappropriate sexual conduct, the Authority explained the importance of reporting any allegations of sexual abuse to the Police.

1.12. Accordingly, the matter was not referred to a Complaints Assessment Committee and the Authority did not conduct any investigation into the Licensee’s complaint.

C13857

1.13. The Complainant, on learning of the complaint made about him, obtained a copy of the

Licensee’s complaints from the Authority and NZQA and on 7 June 2016, made a complaint (C13857) to the Authority about the actions of the Licensee.

1.14. In his complaint, the Complainant set out his recollection of events in 2008 (the time of the alleged sexually inappropriate conduct) and 2015 (the time of the alleged course fee and

materials conduct). The Complainant strongly disputed the truth of the allegations. As he put it: “The Licensee has made untrue, and baseless allegations against me, comprising theft,

corruption, assault, sexual abuse and abduction. These allegations are totally vindictive and

designed to cause me as much embarrassment, humiliation and loss of reputation in the eyes of the REAA, NZQA and my employer, [organisation B].”

1.15. The complaint alleged breaches of Rules 6.3 (bringing the profession into disrepute) and 7.3 (not to use complaints procedures for improper purposes) of the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012 (the Rules). The Complainant suggested the breaches of the Rules were so egregious as to amount to misconduct under s 73 of the Act.

1.16. The Complainant insisted his complaint be considered by the Authority and not dealt with by way of compliance letter.

1.17. Complaint C13857 was referred to Complaints Assessment Committee 408 (CAC 408). On 13 July 2016 CAC 408 decided under section 79(2)(a) of the Act not to inquire into the complaint.

1.18. The Complainant successfully appealed CAC 408's decision to the Real Estate Agents Disciplinary Tribunal (the Tribunal)1 and the Tribunal referred the matter back to CAC 408 with a direction

that the Committee inquire into the complaint (the Tribunal’s First Decision).

1.19. Complaint C13857 was then transferred to Complaints Assessment Committee 412 (CAC 412). On 15 June 2017, CAC 412 decided to inquire into the complaint under section 79(2)(e) of the Act and authorised the Authority investigator to assist with the inquiry.

1.20. On 25 May 2018 CAC 412 decided under section 80(2) of the Act to take no further action on the complaint.

1.21. The Complainant appealed CAC 412’s decision and the appeal was allowed (the Tribunal’s Second Decision).2 The Tribunal modified CAC 412’s decision so that the matter was referred as a charge to be considered by the Tribunal.

1.22. On 20 June 2019 the Authority successfully filed an appeal in the High Court3 (the First High Court Decision) against the Tribunal’s Second Decision. Despite allowing the appeal the High Court declined to reinstate CAC 412’s decision and referred the matter back to the Tribunal.

1.23. On 14 September 20204 the Tribunal allowed the Complainants appeal and quashed CAC 412’s decision to take no further action on the complaint (the Tribunal’s Third Decision), and again referred the matter back to the CAC stage.

1.24. The Licensee appealed the Tribunal’s Third Decision to the High Court. On 31 March 2021 the High Court5 dismissed the Licensee’s appeal and reinstated the Tribunal’s Third Decision.
1.25. Against this background complaint C13857, following the Tribunal’s Third Decision, was remitted back to a Complaints Assessment Committee, CAC2106.

1.26. On 16 July 2021 CAC2106 decided to take no further action on complaint C13857. CAC2106

1 [The Complainant] v Real Estate Agents Authority (CAC408) & [The Licensee] [2017] NZREADT 23 2 [The Complainant] v Real Estate Agents Authority (CAC412) & [The Licensee] [2019] NZREADT 20 3 Real Estate Agents Authority v [The Complainant] [2019] NZHC 3499

4 [The Complainant] v Real Estate Agents Authority (CAC 412) & [The Licensee] [2020] NZREADT 42

5 [The Licensee] v Real Estate Agents Authority [2021] NZHC 689

concluded:

(a) The conduct alleged was not “real estate agency work” in terms of the Act and therefore the Committee could not consider a finding of unsatisfactory conduct under section 72 of the Act.

(b) Following a thorough and critical analysis and evaluation of the available evidence, there was insufficient evidence that could be adduced to provide a reasonable prospect of successful misconduct charges before the Tribunal.

This complaint

1.27. The details of the complaint are that the Licensee:

1. intimidated a witness during the Complainant’s previous complaint (C13857) about her.
   
2. harassed the Complainant by issuing a trespass notice against him.
   

1.28. This complaint was referred to CAC409 on 6 August 2018 and transferred to CAC519 on 3 December 2019.

1.29. On 3 March 2020 the complaint was transferred to this Committee who deferred making a decision on the complaint until complaint C13857 had been determined.

1.30. The Committee has considered this complaint against this background.

2. What we decided

2.1. On 3 February 2020 the Committee decided to adopt CAC 412 and CAC519’s decisions inquire into the complaint under section 79(2)(e) of the Act.

2.2. On 12 April 2022 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 80(2) of the Act. The decision was also made with reference to the sections 72 and 73 of the Act.

3. Our reasons for the decision

3.1. The Committee concluded:

• (a) The conduct alleged is not “real estate agency work” in terms of the Act and therefore the Committee cannot consider a finding of unsatisfactory conduct under section 72 of the

Act.

(b) It is not proven that the Licensee intimidated the Witness.

(c) The statements made in the trespass notice would not themselves support a referral to

the Tribunal for misconduct charges and the Licensee’s conduct in issuing the notice is not of a severity to warrant a referral to the Tribunal.

Real estate agency work

3.2. Real estate agency work is defined in the Act as work done or services provided, in trade, on behalf of another person for the purposes of bringing about a transaction.6
3.3. The conduct complained of is not conduct in the context of “real estate agency work. The only disciplinary response the Committee can consider is whether the Licensee’s conduct could amount to misconduct, specifically disgraceful conduct, under s 73(a) of the Act.

3.4. The relevant test for disgraceful conduct is, simply, whether the conduct is disgraceful, in the ordinary sense of the word.7 Conduct which involves a marked and serious departure from the requisite standards must be assessed as “disgraceful”, rather than some other form of

misconduct which may also involve a marked and serious departure from the standards.8

3.5. The Tribunal has emphasised that the test for disgraceful conduct under section 73(a) of the Act involves a high threshold.9

Witness intimidation allegations

3.6. The Complainant says that the Licensee contacted a witness (the Witness) who had given evidence in complaint C13857 and intimidated the Witness and accused her of perjury. The

Complainant says that the Licensee’s conduct was misconduct under section 73(a) of the Act and amounted to blatant intimidation of a witness in breach of section 117(a) of the Crimes Act 1961.

3.7. The Witness is the Manager referred to in paragraph 1.5. The Witness gave evidence in

complaint C13857 and said that she accepted the explanation given by the Complainant when

the allegations about the Complainant were first raised by the Licensee in 2008 and, her view on that had not changed.

3.8. The Licensee says that she had the right to contact the Witness because the Witness was also her witness. The Licensee has explained that she contacted the Witness to find out what the

Complainant had told her about the alleged dinner invitation. She says that the Complainant had not told the truth and believes the Witness was guilty of perjury because she had supported the Complainant’s version of events. The Licensee denies intimidating the Witness and says that she spoke politely and did not threaten the Witness.

3.9. The Witness says the Licensee did contact her in October 2017 and accuse her of perjury, the perjury accusation was not correct, but she did not feel seriously threatened. She says that the conversation with the Licensee was brief, and she did not hear from her again. The Witness told the Authority’s investigator that she had no interest in taking the matter further.

3.10. Having carefully considered the evidence from both the Licensee and the Witness as to the conversation that took place the Committee is not persuaded that the evidence establishes that the Licensee threatened or intimidated the Witness. Further whilst the contact was unwelcome,

6 Section 4, Real Estate Agent Act 2008

7 Complaints Assessment Committee 10024 v Downtown Apartments Ltd (In Liq) [2010] NZREADT 6.

8 Morton-Jones v Real Estate Agents Authority [2016] NZHC 1804, at [29].

9. See for example the comments of the Tribunal in Spring v Real Estate Agents Authority (CAC 308 and 403) [2017] NZREADT 82 at [58]; White v Real Estate Agents Authority (CAC306) [2016] NZREADT 38 at [18]; Mosley v Real Estate Agents Authority (CAC409) [2017] NZREADT 62 at [56]

this was a one-off occurrence and there is no evidence that the conduct was repeated.

3.11. The Committee has therefore concluded that the Licensee’s conduct was not of a severity to warrant a referral to the Tribunal for misconduct charge and, takes no further action concerning this aspect of the complaint.

Trespass notice

3.12. On 12 December 2017 the Licensee served a trespass notice on the Complainant. The Complainant says he feels there is an ongoing case of harassment by the Licensee.

3.13. The trespass notice alleging “sexual assault, theft, false statements, forged identity, threatening for cancelling [the Licensee’s] licence” was delivered by courier to the Complainants place of work. The Complainant says that the courier package which was thought to contain course materials was signed for by a work colleague and caused everyone extreme embarrassment

when it was realised that the package did not contain course materials.

3.14. The Licensee says that she had the right to send the trespass notice under section 4 of the Trespass Act 1980 and the notice was sent because the Complainant wanted her real estate agent licence to be permanently cancelled. She explained that her licence would only be cancelled if she died and that she was scared that the Complainant would attack and kill her.

3.15. The Licensee has also explained that she sent the trespass notice to the Complainant’s work address because she had discovered that he had two different residential addresses and did not want the notice to go to the wrong address.

3.16. The Committee accepts that the fact that the Complainant’s colleagues saw the trespass notice would have been embarrassing for the Complainant but the Licensee is not to blame for this, her intention was to ensure that the notice was delivered to the Complainant and her expectation was that the courier package would be opened by the Complainant.

3.17. The issue of the trespass notice was raised in the Tribunal’s Second Decision. The Tribunal noted that:

“While the statements made in the documents would not themselves support a complaint under section 73, the tenor of the notice may have some relevance to the assessment of the credibility of [the Licensee].”10

3.18. We agree with the statement in the Tribunal’s Second Decision that the statements made in the trespass notice would not themselves support a referral to the Tribunal for misconduct charges and, in the absence of any evidence from the Complainant other than the issue of the trespass notice itself there is no evidence before the Committee of an ongoing campaign of harassment as suggested by the Complainant.

3.19. The Committee has therefore concluded that the Licensee’s conduct in issuing the trespass

notice does not constitute disgraceful conduct so as to warrant a referral to the Tribunal and, the Committee takes no further action concerning this aspect of the complaint.

10. Ibid at [52]

4. Publication

4.1. The Committee directs publication of its decision. This decision will be published without the names or identifying details of the Complainant, the Licensee 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.

5. 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/.

6. Provisions of the Act referred to

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

Signed

Chairperson Deputy Chairperson

Date: 23 May 2022

Appendix: Provisions of the Act referred to

The Real Estate Agents Act 2008 provides:

72 Unsatisfactory conduct

For the purposes of this Act, a licensee is guilty of unsatisfactory conduct if the licensee carries out real estate agency work that—

(a) falls short of the standard that a reasonable member of the public is entitled to expect from a reasonably competent licensee; or
(b) contravenes a provision of this Act or of any regulations or rules made under this Act; or
(c) is incompetent or negligent; or
(d) would reasonably be regarded by agents of good standing as being unacceptable.

73 Misconduct

For the purposes of this Act, a licensee is guilty of misconduct if the licensee’s conduct—

(a) would reasonably be regarded by agents of good standing, or reasonable members of the public, as disgraceful; or
(b) constitutes seriously incompetent or seriously negligent real estate agency work; or
(c) consists of a wilful or reckless contravention of—

• (i) this Act; or
• (ii) other Acts that apply to the conduct of licensees; or
• (iii) regulations or rules made under this Act; or

(d) constitutes an offence for which the licensee has been convicted, being an offence that reflects adversely on the licensee’s fitness to be a licensee.

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.