Unsatisfactory conduct

These are the unsatisfactory conduct decisions published since the previous newsletter (28 April 2017)

​​Complaint number ​Overview ​​Penalty

The Tribunal said that although Mr Harvey failed to have a written agency agreement in place, he was indeed undertaking real estate agency work and Mr Johnson was his client. Accordingly, he was obliged to comply with the applicable provisions of the Act and the Rules. He breached Rules 9.5 and 9.15 by failing to provide a written appraisal, by failing to have an agency agreement in place, and, by failing to comply with his fiduciary obligations to Mr Johns​​on.

​Censure / Fined $7,000 

The Committee considered that although there were difficulties in marketing a property in a mortgagee sale, particularly where there was a non-co-operative mortgagor, as was the case here, the licensee had failed to act with reasonable care and diligence in the marketing of the property. This was in breach of Rules 5.1 and 9.1 of the Code of Conduct 2012 Rules, and amounted to unsatisfactory conduct under section 72. Under appeal​.

​Fined $3,000
C09716 The Tribunal agreed with the CAC that the licensee acted in a conflict of interest situation because of his interest in taking a tenancy of the property that had been listed with him for lease. It also agreed with the CAC’s characterisation of the appellant licensee’s conduct as “a hopeless breach of the appellant’s fiduciary duties” to the complainants and at the “high end” of unsatisfactory conduct / Censure Fine of $7,000 Complete Unit Standard 26152 (‘Explain the principles of ethics applying to real estate practice’). Pay $2,241 in legal costs to the complainants
C09798 ​The Tribunal found that the licensee was in breach of Rule 6.4 for sending a document to a potential purchaser that he knew might be incorrect, without including a warning or otherwise waiting until he had confirmation that it was correct. He was in breach of Rule 6.4 also for incorrectly stating on his website that a former associate who had departed a number of years ago still worked for him. The totality of the licensee’s conduct fell below the appropriate standard and also amounted to a breach of Rule 5.1. Tribunal yet to decide on penalty

​The Committee found the licensee had engaged in unsatisfactory conduct under section 72(a) of the Act by breaching Rule 5.1, Rule 6.2, Rule 6.4, and Rule 10.10 when he failed to present all offers on a property to the vendor. The licensee also failed to present an amended agreement proposal to the vendor.

Censure / Undergo training US23136 - Demonstrate knowledge of misleading and deceiving conduct and misrepresentation / ​Fined $2,500
C15537 ​The licensee engaged in unsatisfactory conduct under section 89(2)(b) of the Act when they breached Rule 5.1 (skill, care and competence), Rule 5.2 (knowledge) and Rule 6.1 (fiduciary duty) by returning the deposit cheque to the purchaser during a period in which the offer was irrevocable. Fined $4,000
C13270 The licensee engaged in unsatisfactory conduct under section 89(2)(b) of the Act when they breached rules 5.1, 6.2, 6.3, 6.4, 9.2 by trying to persuade the purchasers not to have confidence in, or rely on, the building inspector report. Censure / Fined $3,000
C12832 Central to the complaint was that licensee had failed to disclose the true rear boundary of the property. It was common understanding that she had not made any enquiries concerning the boundaries of the property. The Tribunal agreed with the CAC that this amounted to breaches of Rules 5.1 and 6.4 and, therefore, constituted unsatisfactory conduct in terms of section 72 of the Act. Censure / Order to undergo specified training / Fined $2,000
C13751 ​The licensee engaged in unsatisfactory conduct under section 89(2)(b) of the Act when the licensee made insufficient disclosure and misled the complainants by minimising, failing to discover, or not fully disclosing problems with the property. Censure / the licensee to undergo training or education / fined $5,000
C15009 ​The licensee engaged in unsatisfactory conduct under section 89(2)(b) of the Act, when she failed to confirm with the complainant that she approved the marketing program and failed to obtain written authority from the complainant that the lawyer was to act for both trustees, breaching Rules 5.1, 6.1 and 10.6 of the Code of Conduct 2012. Reprimand / Fined $1000
C15211 ​The licensee and agency engaged in unsatisfactory conduct under section 72(b) of the Act when they breached rule 5.1, by not exercising sufficient skill, competence and diligence, specifically by failing to release the deposit when legally obliged to; and when they breached rule 8.4, their reason for holding the deposit was invalid and it was their obligation to understand and apply the law. Licensee - fined $1,000.
Agency - fined $1,000; rectify $400 to complainant for legal costs; settlement of $299.28 to complainant for lost interest