Decision of Complaints Assessment Committee

Transcription

1 In the Matter of Part 4 of the Real Estate Agents Act 2008 And In the Matter of In the Matter of Complaint No: C05803 Jenine Noonan License Number: Decision of Complaints Assessment Committee Dated this 8 th day of May 2015 Complaints Assessment Committee: CAC 402 Chairperson: Marjorie Noble Panel Member: Jane Ross

2 Complaints Assessment Committee Decision on orders 1. Decision on orders 1.1. On 4 February 2015 the Complaints Assessment Committee (the Committee) found Jenine Noonan (the Licensee) guilty of unsatisfactory conduct under section 89(2)(b) of the Act The Complainant and the Licensee were given the opportunity to make submissions to the Committee on orders. 2. Orders 2.1. Having made a finding of unsatisfactory conduct against the Licensee, the Committee decided to order that the Licensee: a) Be Censured in accordance with section 93(1)(a); b) Reimburse the Complainant $ for house inspection report cost in accordance with section 93(1)(e) within 21 working days of the date of this decision; c) Undertake further training in accordance with section 93(1)(d) by completing US23136 within 3 months from the date of this decision. The Licensee has to provide proof to the Authority of having successfully completed the Unit Standard; d) Pay a fine of $3, in accordance with section 93(1)(g) within 21 working days from date of this decision; 3. Our reasons 3.1. The Complainant made submissions on Orders which included reimbursement of the cost of the Building Report that was commissioned, after it became obvious that the repairs that the Licensee had said had been done had not been completed in a satisfactory manner The Complainant also requested that the Licensee make good the water damage below the kitchen cabinet and to fix the leaking kitchen sliding window. A blocked storm water pipe also required repair. Two quotes for this work were included in the submissions The Licensee in her submissions to the Committee quite rightly pointed out that the Committee is unable to make an order for compensation (Quinn V REAA NZREADT) The Licensee submitted that it was unreasonable for her to be expected to pay for a report that the Complainant originally declined to obtain The Licensee stated she had not knowingly misled the Complainant, but had relied on information provided by the vendor. There was no dishonesty involved and that she had actively worked to point out where the vendors repairs had taken place. Also the Licensee was under the impression the vendors report was the intellectual property of the building inspector and could not be released to the Complainant. The Licensee suggested a level of fine appropriate to her conduct which she saw at the lowest end. CAC Decision on orders 8 May 2015 Page 2 of 7

3 3.6. The Committee noted a previous finding of Unsatisfactory Conduct less than three years ago which was around the Licensee providing false information on a contract for sale and purchase and GST issues The Committee considered the submissions of both parties and reflected on how different the situation would have been for the Complainant had the Licensee made full disclosure of the contents of the report that she had read, as required by rule 10.7 of the Rules. The Committee also noted in its decision finding unsatisfactory conduct that it is not enough to say repairs have been done because that is what the Vendor said. The Committee has no doubt that had the Licensee made full disclosure to the Complainant, a building inspection would have been part of the due diligence on the Property The Licensee wished to rely on not knowingly misleading the Complainant, and that no dishonesty was involved. The Committee was uncertain that the Licensee has fully understood that by not disclosing the contents of the report she has mislead the Complainant, and that this lack of disclosure could well be seen as dishonest or deceptive. The Committee was asked to see the good will by the Licensee and lack of intention to deceive. The Committee was unable to see evidence of either of these characteristics in the conduct complained of and could only consider the financial burden imposed by the Licensee onto the Complainant as a result of her conduct For these reasons the Committee considered a censure, re-imbursement of the cost of the house inspection report, further education and a fine in the mid-range to be entirely appropriate given the serious nature of the conduct. Principles considered When determining whether or not to make an order under Section 93(1), the Committee has also had regard to the functions which the imposition of a penalty usually must serve in professional disciplinary proceedings. a. promoting and protecting the interests of consumers and the public generally (section 3(1)) b. maintaining professional standards c. punishing offences d. rehabilitating the professional The Committee acknowledges that, when making an order under Section 93, the order/s made must be proportionate to the offending and to the range of available orders. a. Promoting and protecting the interests of consumers and the public Section 3(1) of the REAA sets out the purpose of the legislation. The principal purpose of the Act is "to promote and protect the interests of consumers in respect of transactions that relate to real estate and to promote public confidence in the performance of real estate agency work." One of the ways in which the Act states it achieves this purpose is by providing accountability through an independent, transparent and effective disciplinary process (Section 3(2). b. Maintaining professional standards This function has been recognised in professional disciplinary proceedings involving other professions (for example, in medical disciplinary proceedings: Taylor v The General Medical CAC Decision on orders 8 May 2015 Page 3 of 7

4 Council (1990) 2 A11 ER 263; and in disciplinary proceedings involving valuers: Dentice v The Valuers Registration Board [1992] 1 NZLR 720) Although different professions use different descriptions of the nature of the unprofessional or incompetent conduct that will attract disciplinary charges, there is a common thread of scope and purpose. The aim is to enforce a high standard of propriety and professional conduct. Professions seek to: make sure that no person unfitted because of his or her conduct is allowed to practice the profession in question protect both the public and the profession itself against persons unfit to practice enable the profession or calling, as a body, to ensure that the conduct of members conforms to the standards generally expected of them In the Committee's view, maintaining professional standards is also a function of the disciplinary processes under the Real Estate Agents Act c. Punishment The Committee accepts that a penalty in a professional discipline case is primarily about maintaining standards and protecting the public. However, in the Committee's view there is also an element of punishment indicated by the power the Committee has to impose a fine (Section 93(1)(g); or make an order of censure (Section 93(1)(a)). The element of punishment has been discussed in the context of other professional disciplinary proceedings (see Patel v Dentists Disciplinary Tribunal (High Court, Auckland, CIV Lang J 13 August 2007) At paragraph [27]-[28], the judge said: Such penalties may be appropriate because disciplinary proceedings inevitably involve issues of deterrence. They are designed in part to deter both the offender and others in the profession from offending in a like manner in the future. I therefore propose to proceed on the basis that, although the protection of the public is a very important consideration, nevertheless the issues of punishment and deterrence must also be taken into account in selecting the appropriate penalty to be imposed d. Where appropriate, rehabilitation of the professional must be considered The Committee regards its power to make an order requiring a Licensee to undergo training or education (Section 93(1)(d)) as indicating that rehabilitation is a function of professional disciplinary processes under the Act. 4. What happens next Your right to appeal 4.1. If you are affected by this decision of the Committee, you may appeal in writing to the Real Estate Agents Disciplinary Tribunal (the Tribunal) within 20 working days after the date 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 (Section 111). CAC Decision on orders 8 May 2015 Page 4 of 7

5 4.2. For further information on filing an appeal, read Guide to Filing an Appeal at Ministry of Justice-Tribunals ( Publication 4.3. The Committee directs publication of its decision. The decision will be published without the names or identifying details of the Complainant (including the address of the Property), and any third parties. The decision will state the name of the Licensee and the Agency they work for or worked for at the time of the conduct Publishing the Committee s decision supports the purpose of the Act by ensuring that the disciplinary process remains transparent, independent and effective. The Committee also considers that publishing this decision helps to set standards and that is in the public interest. Signed Marjorie Noble Chairperson For Complaints Assessment Committee 402 Real Estate Agents Authority Date: 8 May 2015 CAC Decision on orders 8 May 2015 Page 5 of 7

6 Appendix 1: Relevant provisions The Real Estate Agents Act 2008 provides: Section 89 Power of Committee to determine complaint or allegation (1) A Committee may make one 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 (c) the licensee has engaged in unsatisfactory conduct; 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. Section 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) (b) (c) (d) Section 93 falls short of the standard that a reasonable member of the public is entitled to expect from a reasonably competent licensee; or contravenes a provision of this Act or of any regulations or rules made under this Act; or is incompetent or negligent; or would reasonably be regarded by agents of good standing as being unacceptable. Power of Committee to make orders (1) If a Committee makes a determination under section 89(2)(b), the Committee may do one or more of the following: (a) (b) (c) (d) (e) (f) (g) make an order censuring or reprimanding the licensee; 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; order that the licensee apologise to the complainant; order that the licensee undergo training or education; order the licensee to reduce, cancel, or refund fees charged for work where that work is the subject of the complaint; 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; order the licensee to pay to the Authority a fine not exceeding $10,000 in the CAC Decision on orders 8 May 2015 Page 6 of 7

7 (h) (i) case of an individual or $20,000 in the case of a company; 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; 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. Section 111 Appeal to Tribunal against determination by Committee (1) A person affected by a determination of a Committee may appeal to the Tribunal against a determination of the Committee within 20 working days after the date of the notice given under section 81 or 94. (2) The appeal is by way of written notice to the Tribunal of the appellant's intention to appeal, accompanied by (a) (b) a copy of the notice given to the person under section 81 or 94; and 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 6.4 Rule 10.7 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 A licensee is not required to discover hidden or underlying defects in land but must disclose known defects to a customer. Where it would appear likely to a reasonably competent licensee that land may be subject to hidden or underlying defects, a licensee must either (a) obtain confirmation from the client, supported by evidence or expert advice, that the land in question is not subject to defect; or (b) ensure that a customer is informed of any significant potential risk so that the customer can seek expert advice if the customer so chooses. CAC Decision on orders 8 May 2015 Page 7 of 7