Drever v Complaints Assessment Committee 403
[2017] NZHC 2213
•13 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-003086 [2017] NZHC 2213
BETWEEN AARON CARL DREVER
Appellant
AND
COMPLAINTS ASSESSMENT COMMITTEE 403
Respondent
Hearing: 24 May 2017 Appearances:
G Foley for the Appellant
M Hodge for the RespondentJudgment:
13 September 2017
JUDGMENT OF HINTON J
This judgment was delivered by me on 13 September 2017 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
Counsel/Solicitors:
Guyon Foley, Barrister, Auckland
Meredith Connell, Auckland
DREVER v COMPLAINTS ASSESSMENT COMMITTEE 403 [2017] NZHC 2213 [13 September 2017]
Introduction
[1] On 8 August 2016, Mr Drever admitted a charge of misconduct under s 73(c) of the Real Estate Agents Act 2008. On 4 November 2016, the Real Estate Agents Disciplinary Tribunal cancelled Mr Drever’s agents licence.1
[2] Mr Drever appeals that decision. The question is whether he is a fit and proper person to be a licensee. More particularly, the question is whether too much weight was placed on Mr Drever’s disciplinary history and too little on the mid-level nature of the charge at issue. Mr Drever also seeks to introduce further evidence of his personal circumstances to explain his conduct.
The Tribunal decision of 4 November 2016
[3] The Complaints Assessment Committee originally laid a charge of misconduct under s 73(a) of the Real Estate Agents Act 2008 (“the Act”) on
15 January 2015. On 8 August 2016, the day of the Tribunal hearing, the charge was amended to misconduct under s 73(c). Instead of the particulars being disgraceful conduct, the charge was based on reckless contraventions of the Act, the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009, and the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012 (“the Rules”). After opposing the charge throughout the investigation, Mr Drever admitted the amended charge.
[4] Mr Drever was a licensed agent, but at the time relating to the charge he was engaged as a licensed salesperson.
[5] The Tribunal recorded that the charge was founded on real estate transactions involving three complainants. In each case, Mr Drever was the listing agent. With regard to the Deyermonds, Mr Drever gave them an oral appraisal when he was required to give them a written appraisal. He did not provide them with a copy of the Residential Property Agency Agreements Guide or the Residential Property Sale and Purchase Agreements Guide (“the REAA Guides”); he invited them to sign the agency agreement without entering the appraised value and he did not discuss a
marketing plan. When bringing a customer to view their property, he told them to “shut your mouth, don't say a word, they're my clients”, or words to that effect. With regard to Ms Van Eijk, Mr Drever did not give her a written appraisal and he asked her to sign an agency agreement without entering the appraised value. He did not provide Ms Van Eijk with copies of the REAA Guides before she signed the listing agreement or the sale and purchase agreement. In the course of a rushed process, the only discussion was briefly as to the commission Mr Drever would charge and he promised that he would get her a good price. With regard to Ms Lowe, Mr Drever again did not provide her with a written appraisal, the REAA Guides or a marketing plan. Despite repeated requests, he did not provide her with a copy of the signed listing agreement.
[6] The Tribunal then turned to Mr Drever’s disciplinary history. It noted that Mr Drever had been charged with misconduct or unsatisfactory conduct in respect of his work as a licensee on eight occasions since 2011. A summary of these was attached as an Appendix, which apparently had been drawn up by the Tribunal. It lists conduct between January 2011 and April 2015, in chronological order, with details of the penalties imposed, including dates. I have in turn attached a copy of that Appendix to this judgment.
[7] The Tribunal referred to the Supreme Court decision of Z v Dental Complaints Assessment Committee2 and the principal purposes of the Act. The Tribunal said that it should endeavour to maintain consistency in penalties and should impose the least punitive penalty appropriate in the circumstances. It noted the range of orders available.
[8] The decision recorded that Mr Drever had voluntarily suspended his licence as from 29 January 2016.
[9] The Tribunal noted that there were no previous “misconduct” penalty decisions on all fours with the present case. There were recent penalty decisions in other cases in respect of wilful or reckless breaches of the Act or the Rules (being the charge before the Tribunal), but none of these other cases involved relevant previous
disciplinary history. The penalties are noted as having ranged from cancellation to fines.
[10] In determining the appropriate penalty for misconduct, the Tribunal referred to Hart v Auckland Standards Committee 1 of New Zealand Law Society, noting that the ultimate issue relates to the practitioner’s fitness to practise.3 Hart held that the nature of the misconduct is considered along with other factors, including the nature and gravity of the charges, the manner in which the practitioner has responded to the charges (such as the practitioner’s willingness to co-operate in the investigation, to acknowledge error or wrongdoing, and to accept responsibility for the conduct), and the practitioner’s previous disciplinary history.4
[11] The Tribunal set out Mr Drever’s evidence that the “root cause of [his] failings” over the past five years was having no effective supervision and support, while being at the same time frantically busy. He was selling a large number of properties and earning “over a million dollars a year”. He was a top-ranked salesperson in the agency where he worked between 2011 and 2013, and in another
agency where he worked between 2013 and 2015.5
[12] Under cross-examination, Mr Drever accepted that he had not “dotted his “i”s and crossed his “t”s. He said this was not intentional, but resulted from the volume of business he was doing and the fact that no one was providing supervision or help. When asked why he did not consider taking fewer listings, he responded that it was necessary to keep business coming in, in order to maintain an income. He further said that if he had reduced his listings, he would have faced complaints from clients
that he had left them.6
[13] The Tribunal did not accept Mr Drever’s case that any lack of supervision, management oversight or systems, ameliorated his conduct to any great extent. It said that his conduct over the course of several years showed he ignored the
obligations under the Act and the Rules. His wish to maintain an income and the fact
3 Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83, [2013]
3 NZLR 103 at [185].
4 At [185]-[188].
5 Complaints Assessment Committee 403 v Drever, above n 1, at [13].
that at the time of some of the charged conduct he may have been trying to leave an agency, did not provide a satisfactory explanation for his conduct. The Tribunal said that, put simply, (as was submitted on his behalf) Mr Drever took on far too much business and failed to ensure there were back-up systems to manage that business.
[14] The Tribunal acknowledged that the nature of the conduct which was the foundation for the present charge would not on its own justify a serious penalty. However, it had to be viewed in the context of the conduct which led to the earlier charges, and the penalties imposed. The previous disciplinary findings against Mr Drever were a seriously aggravating factor.7
[15] The Tribunal said:8
The number of charges Mr Drever has faced since mid-August 2011 over the course of his engagement by two agencies, and the fact that he has been ordered to complete courses of training on three occasions, on three different aspects of real estate agency work, causes the Tribunal to have grave concerns as to Mr Drever’s competence to carry out real estate agency work to the standard required within the industry, and his commitment to avoiding any further breaches of the Act and Rules. So too, does the fact that when he appeared before the Tribunal in December 2014, Mr Drever was given a
‘polite warning’ as to the possible consequences should he appear again
before the Tribunal.
[16] The Tribunal took into account Mr Drever’s personal circumstances, including that real estate work is all he knows and he has no training for any other work; the substantial financial loss Mr Drever will suffer as a result of a suspension; that a cancellation would give him no “light at the end of the tunnel” and the fact that he had undertaken some training courses since his voluntary suspension.
[17] Having considered all of these factors, the Tribunal concluded that cancellation of Mr Drever’s licence was “the only appropriate response to [his] continuing breaches of his obligations. A less punitive penalty would not serve the
purposes of the Act …”.9
7 Complaints Assessment Committee 403 v Drever, above n 1, at [30].
8 At [31].
Approach on appeal
[18] There are conflicting authorities of this Court concerning whether appeals against a penalty decision from a professional disciplinary body involve a general right of appeal or whether they are appeals against the exercise of a discretion.10
[19] In Morton-Jones v Real Estate Agents Authority, this Court said that penalty decisions under s 110 of the Act involve the exercise of discretion.11 However, that was in a context where the Authority itself did not oppose that approach because it was the Authority’s appeal. To treat it as an appeal against a discretion was the most favourable approach to the licensee.
[20] The approach I prefer was taken in TSM v A Professional Conduct Committee and in Hart.12 The respective Courts considered the conflicting authorities and came to the view that appeals against penalty decisions from professional disciplinary bodies involve a general right of appeal.
[21] In this case, the respondent does not, in any event, oppose this appeal proceeding on the basis that Mr Drever has a general right of appeal against the Tribunal’s decision as to penalty.
[22] I therefore have to arrive at my own assessment of the merits of the case.
[23] However, I also consider this is the sort of case, in line with Austin, Nichols
& Co Inc v Stichting Lodestar, where I should properly have regard to the fact that the Tribunal is a specialist body which deals with a large number of cases every year concerning real estate practice and breaches of acceptable industry standards by real
estate licensees. 13 To this effect, this Court has previously held as follows in relation
10 See Sisson v Standards Committee (2) of the Canterbury Westland Branch of the New Zealand Law Society [2013] NZHC 349, [2013] NZAR 416 at [15]; c.f. Bhanabhai v Auckland District Law Society [2009] NZAR 282 (HC) at [33] and Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354.
11 Morton-Jones v Real Estate Agents Authority [2016] NZHC 1804 at [82].
12 TSM v A Professional Conduct Committee [2015] NZHC 3063; Hart v Auckland Standards
Committee 1 of New Zealand Law Society, above n 3, at [12].
13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
to decisions of the Tribunal:14
Counsel for the Authority properly emphasised that the Tribunal has expertise in this area, and that in applying the Act and Rules regularly it has primary responsibility for setting appropriate standards of conduct within the real estate industry. It also maintains constant oversight over the industry as a whole. For that reason he submitted that this Court should not lightly substitute its own standards for those set or imposed by the Tribunal.
I accept these submissions without reservation.
Background to the Act and the disciplinary process
[24] I consider the Tribunal accurately set out the relevant law.
[25] The relevant provision is s 73 of the Act, which provides as follows:
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.
[26] The stated purpose of the 2008 Act (which in relevant part came into force in
November 2009) is to promote and protect the interests of consumers and to promote public confidence in the performance of real estate agency work.
14 Robinson v Real Estate Agents Authority [2014] NZHC 2613, (2014) 15 NZCPR 670 at [21] and
[22].
[27] The Act records that it achieves this purpose by regulating agents, branch managers and salespersons; raising industry standards; and providing accountability through an independent and transparent process. The relatively new legislation places particular focus on the raising of industry standards. A new Crown entity was created taking over the regulatory function previously exercised by REINZ.
[28] The statements of the Supreme Court in Z v Dental Complaints Assessment Committee are just as applicable in this context. The Court said that the protection of the public is the central focus of the disciplinary process.15 That is a less prominent factor in the criminal process. One consequence of this difference is that the disciplinary process may cover much wider ground than that litigated at a criminal trial. Hart referred to the factors that are relevant, including the nature of the charge itself, and not limited to the charge itself.16
[29] As the Tribunal recorded in its decision, a licensee should only have their licence cancelled if they are not a fit and proper person to continue practise as a real estate licensee, determination of that issue being a matter of assessment having regard to a variety of factors.17
Preliminary point - Should the complainants’ briefs of evidence have been included in the common bundle?
[30] As a preliminary evidential point, Mr Foley, for Mr Drever, objects to inclusion of the complainants’ briefs in the common bundle, on the basis that the charge had been amended since those briefs had been prepared.
[31] There was no objection to the briefs being included at the time of the Tribunal hearing. It is true that the charge was amended from a charge of misconduct under s 73(a) to a charge under s 73(c). Such an amendment is not uncommon. The respondent did not (and does not) seek to rely on any part of the
briefs which relate to particulars that were removed prior to Mr Drever’s admission
15 Z v Dental Complaints Assessment Committee, above n 2, at [128].
16 Hart v Auckland Standards Committee 1 of New Zealand Law Society, above n 3, at [185]-[189].
17 Complaints Assessment Committee 403 v Drever , above n 1, at [33]. See also Hart v Auckland
Standards Committee 1 of New Zealand Law Society, above n 3, at [185].
of the charge. In fact, neither counsel referred me to the complainants’ briefs at all,
so I see no need to do so myself.
[32] Mr Foley made very little of this point before me and I do not consider it is material.
Analysis
[33] Mr Foley points to a number of factors which he says illustrate either singly or in combination that the penalty was excessive. He says that is particularly so in light of new information which Mr Drever has supplied relevant to his mental state both during the period of the relevant conduct and the period of the earlier disciplinary conduct.
[34] I begin by considering each of these factors and then conclude with my own assessment of the merits of the case. Mr Foley’s factors are addressed in the order he raises them, except for the new evidence point, which I refer to last.
Is the decision inconsistent with previous Tribunal decisions?
[35] The Tribunal said that neither counsel could refer it to a comparable case, because it had never before had a case involving a licensee with such an extensive disciplinary history. The Tribunal did not rely on any previous decisions.
[36] It is often difficult in disciplinary cases to draw a comparison. As noted earlier, penalty decisions in a disciplinary context do not turn on the particular charge, but rather turn on the particular circumstances of each case. This means that misconduct of a similar kind arising in two cases might result in a very different outcome depending on assessment of factors such as the likelihood of the respective licensees to reoffend.
[37] I do not consider that the decision here was inconsistent with the cases Mr Foley cites, because there are material differences. In particular, none of the defendants had a disciplinary history in the cases to which he refers.
[38] While cancellation will generally involve dishonesty, that is not necessary.18
Also, the charge itself does not have to justify cancellation. It can be aggravated by other factors.19 I would doubt that a minor charge could be aggravated to the point of cancellation, but the present charge is far from minor.
Was excessive weight placed on Mr Drever’s previous disciplinary history, particularly given the lower-level nature of the previous conduct and the penalties imposed?
[39] It is not necessary for previous disciplinary findings to be at the level of “misconduct” for them to be considered relevant when considering penalty and, in particular, cancellation. In both Complaints Assessment Committee 10054 v Hume 20 and Hart, the previous disciplinary history was at the level of “unsatisfactory conduct”. What matters is what the disciplinary record says about a licensee’s fitness and propriety.
[40] It is clear that the Tribunal took care to consider not just the number of findings, but to analyse them, including making reference to the type of disciplinary offending that led to each finding. It is clear on the face of the Tribunal’s own Appendix, that bar one for misconduct, these were all findings at the level of unsatisfactory conduct.
[41] I consider the way in which the Tribunal approached Mr Drever’s previous
disciplinary history was fair, accurate and in accordance with the authorities.
Did the Tribunal err in applying the principles in Hart such that cancellation was disproportionate?
[42] Mr Foley refers at length to the differences between Hart and this case. However, the Tribunal did not suggest the facts of the two cases were comparable. It relied on Hart only for principal.
[43] I agree with Mr Foley that there are material differences between
Mr Drever’s situation and Mr Hart’s. In particular, Mr Hart was found to have acted
18 Hart v Auckland Standards Committee 1 of New Zealand Law Society, above n 3, at [185]-[189].
19 At [185]-[189].
20 Complaints Assessment Committee 10054 v Hume [2013] NZREADT 91.
dishonestly, whereas Mr Drever has not. Further, Mr Hart was found to have subverted the disciplinary process, which cannot be said of Mr Drever. Mr Drever nonetheless cannot claim that he immediately or ultimately accepted responsibility. He did not plead guilty, albeit to an amended charge, until the day of the Tribunal hearing. This was over a year after the charges had been laid. Mr Drever then explained his conduct by reference to a lack of supervision and the number of deals he was doing. Further, Mr Drever had a longer disciplinary record than Mr Hart did.
[44] It is probably fair to say that the circumstances in Hart were more striking. Mr Hart was viewed as having acted dishonestly, whereas Mr Drever was viewed as being a repeat unheeding breaker of the rules. However, either could be susceptible to strike-off.
[45] Viewed overall, I consider the decision to cancel Mr Drever’s licence is consistent with the general principles set out in Hart. In particular, the Full Court in Hart made it clear, as I have stated already, that while dishonesty will normally be a feature of a strike-off or cancellation of a professional licence, that is not necessarily so.
Was no, or insufficient, weight given to Mr Drever’s admission of the charge,
acceptance of responsibility, and remorse?
[46] The Tribunal expressly took into account Mr Drever’s admission of the charge and his completion of training courses while voluntarily suspended. It also clearly recorded Mr Drever’s voluntary suspension of licence as from 29 January
2016.
[47] As I have already noted with regard to admission of the charge, that happened only on the morning of the Tribunal hearing. The charge was also amended that day but up until that point, Mr Drever had denied all the particulars contained within the amended charge, whereas I am advised that he admitted many of these particulars with his guilty plea.
[48] Also, viewed overall, it would be difficult to say that Mr Drever had accepted responsibility or was remorseful, at least in the sense that would lead to the view that
there would be no repeat conduct, which is the real point of considering responsibility and remorse.
[49] As the Tribunal said, Mr Drever had not taken responsibility for his actions because he was at least in part blaming them on a lack of supervision and his workload.
[50] The short point was that the Tribunal rightly could not conclude that Mr Drever had truly accepted responsibility and more particularly, had insight into the seriousness of his repeated breaches, such that it would not happen again. Every indication was to the contrary.
Was insufficient weight given to rehabilitation?
[51] In this regard Mr Drever relies on his previous engagement in training courses, including during his voluntary period of suspension.
[52] Apparently the Tribunal had before it records of Mr Drever’s education history. The decision specifically refers to the fact that he has conducted courses. However, it seems that of the three courses which he was previously ordered to attend, one was not completed and a second not evidenced as having been completed. Again, Mr Drever’s own evidence which is referred to by the Tribunal in some detail makes it reasonably plain that he is not suited to meeting the requirements of the rules and perhaps not capable of meeting them. Again, I refer to the unfortunate reference to not dotting his “i”s and crossing his “t”s following the sort of disciplinary record that he had already accumulated.
Did the Tribunal give excessive weight to punishment?
[53] This is a factor that I cannot really consider as a stand-alone point. Ultimately I have to make my own assessment of all of the relevant factors in any event, and therefore do not need to decide whether the Tribunal gave excessive weight to punishment.
[54] The same applies to some of Mr Foley’s other points.
[55] However, it does not seem to me that the Tribunal gave excessive weight to punishment. It expressly cited the Supreme Court decision in Z v Dental Complaints Assessment Committee and highlighted the fact that protection of the public is the central focus, not punishment.21
[56] It also seems to me that the Tribunal correctly considered all of the factors referred to in Hart, including the very important consideration of whether repeat conduct was likely.
Did the Tribunal give insufficient weight to the fact that real estate is Mr Drever’s
only vocation?
[57] The Tribunal made express reference to the fact that Mr Drever had only ever worked in real estate and had no other qualifications. It also expressly took into account the substantial financial loss that cancellation would cause Mr Drever.22
[58] In fact, the Tribunal may have been generous in this regard. If the Tribunal was otherwise of the view that Mr Drever was not a fit and proper person to hold a licence, it would not be proper to take account of real estate being his chosen and only profession, bearing in mind that protection of the public is the central focus. It will also generally be the case that a person practising in a profession that is subject to disciplinary rules will have their livelihood limited to income from that profession. If that were a factor to be given weight in terms of whether to cancel, the purpose of the regime would potentially be thwarted. As has been said before, matters such as this which are really in mitigation, may have little place in a strike- off decision.
[59] I also note the submission of Mr Hodge, for the respondent, that the affidavit of Ms Visser provided to the Court by Mr Drever refers to his having purchased another business since his licence was cancelled and, according to the records of the Companies Office, he is a director and shareholder of three companies. He also sent
an email to the Tribunal on one occasion saying he was unable to attend a scheduled
21 Complaints Assessment Committee 403 v Drever, above n 1, at [7]-[10].
22 At [24] and [32].
hearing of his earlier appeal in the Tribunal because “I will be in Sydney in a business meeting”. That email was dated 7 March 2017.
[60] The evidence is also that Mr Drever was a very high-earning real estate agent. It is therefore unlikely that he is in a poor financial position.
[61] As I say, in my view, little if any weight should be given to the fact that real estate is someone’s only vocation in circumstances where the Tribunal otherwise considers their licence should be removed in the interests of the public, and that applies even more to this case than to others.
Did the Tribunal err in determining that the lack of supervision and proper systems was not materially mitigating and that relying on this factor indicated a failure to take responsibility?
[62] The respondent accepts that an agency which employs or contracts with a licensed agent (permitting that agent to trade under the name of the agency) must ensure that the agent’s practice is consistent with the agency’s practices in order to ensure compliance by the agency with acceptable practice standards. That applied to Mr Drever. It is not the same thing as hands-on, day-to-day supervision of the kind required under s 50 of the Act in relation to licensees who hold a salesperson’s licence. Only licensees with a salesperson’s licence are required to be supervised.
There is no requirement to supervise a licensee with an agent’s licence.23
[63] Mr Drever has held an agent’s licence since 2007. There was no obligation on either agency Mr Drever worked for, to supervise him in terms of the duty of supervision arising under s 50.
[64] A fit and proper agent does not require supervision in order to be able to: (a) provide REAA Guides to vendors and purchasers;
(b) recommend that purchasers seek legal advice before entering legal
agreements;
23 Real Estate Agents Act 2008, s 50.
(c) explain basic amendments in a sale and purchase agreement to customers or clients;
(d) check the actual sale price of a property before charging commission; (e) provide documents to clients when requested;
(f) attend meetings with vendors as previously arranged; (g) not be rude to clients;
(h) provide a written market appraisal to vendors; and
(i) explain to clients how their property will be marketed and advertised. [65] These are all basic obligations with which all licensees are expected to
comply.
[66] The respondent also drew to my attention that in the other case involving a misconduct finding against Mr Drever in the Tribunal, which was in December 2014, Mr Drever assured the Tribunal that he was being properly supervised at Ray White (as opposed to the relevant previous agency), and implied that similar conduct would not reoccur. In this proceeding, Mr Drever says he was not properly supervised at Ray White.
Did the Tribunal unfairly place excessive weight on an earlier warning given by the
Tribunal to Mr Drever in December 2014?
[67] The Tribunal did refer to the December 2014 warning that it had given to Mr Drever, as being a matter of concern. I accept that the Tribunal would have been influenced by that warning.
[68] To some extent it was unfair to take that warning into account, as the warning was given subsequent to the 2013 misconduct that led to this case.
[69] The warning nonetheless put Mr Drever on notice of the risk he was at with this penalty hearing. There was no obligation on the Tribunal to warn Mr Drever at all as a preliminary step to a cancellation. He should have seen for himself after his lengthy disciplinary history that he was at, or extremely close to, the end of the road in terms of his current licence. It is part of his failure to understand the significance of all of the disciplinary processes, that he thought he could just carry on with one complaint after another.
[70] Further, as is apparent from the Appendix, there had already been a further finding against Mr Drever for unsatisfactory conduct, where the conduct (December
2014 to April 2015) did post-date the December 2014 warning. That conduct followed not just the Tribunal’s December 2014 warning but a warning by a Complaints Assessment Committee in April 2014. The Committee said that:24
… the approach that [Mr Drever has] taken to the sale of the Complainant’s Property indicates a casual and unprofessional approach, with little concern to ensure that client’s instructions are followed or carried out in a correct and orderly manner so as to ensure that the client’s interests are protected at all times. This type of approach is totally unacceptable to the Committee and does not reflect the standards that the real estate industry and public ought to be able to expect of licensees.
…
It is the Committee’s view that Mr Drever, regrettably, has not learnt from his earlier appearances in front of the Committee, a severe and final warning needs to be made.
[71] I do not therefore consider that the reference by the Tribunal to the December
2014 warning, albeit not in its proper context, operated unfairly to Mr Drever. I also note that the Tribunal did not place that point at the forefront of its decision.
What is the significance of the new evidence?
[72] Mr Drever has filed new evidence, including medical evidence, that he is a long-term sufferer of ADHD and that this was a contributing factor to his disciplinary offending. He also refers to his father having been terminally ill with cancer since 2009 and being supported by and living with Mr Drever since 2013.
Mr Drever also underwent a stomach stapling procedure in 2009. Ms Visser, a
24 In the matter of Aaron Drever CO0412, 14 April 2014 (order) at [3.4.10] and [3.4.14].
psychiatrist, concludes that all these factors would have played a significant part in Mr Drever’s making the errors not just in these proceedings, but also in the earlier proceedings. Mr Foley says this is why Mr Drever has accumulated his disciplinary record since 2011 whereas he had none in his previous nine years of real estate work.
[73] The respondent does not appear to oppose the filing of the new evidence, but has not of course had any opportunity to test that evidence or reply to it, given this is an appeal.
[74] The difficulty with this new evidence is that, although it paints a rather sad picture and perhaps to a small extent explains Mr Drever’s conduct, it neither sufficiently explains nor excuses that conduct. Mr Drever’s ADHD, psychiatric and emotional health issues did not preclude his managing a huge workload of sales and being a leading salesperson.
[75] Unfortunately, to some extent this new evidence only serves to reinforce that Mr Drever is not a fit and proper person to be a licensee. The new evidence seeks to place weight on the stressful effect on Mr Drever of managing a high number of listings as an agent, but that is exactly what he has done and would continue to do if he were carrying on in practice. The whole point of the Rules and the Act is to make sure that licensees comply with minimum standards that are important for the purpose of consumer protection, particularly in the face of the commercial pressure on licensees to achieve quick turnover and a high volume of sales. (The more likely reason for the accumulation of charges and convictions since 2011 is that the more rigorous requirements of the new legislation proved insurmountable, when coupled with Mr Drever’s desire to outperform on sales.)
[76] I agree with the respondent that the new evidence Mr Drever relies on does not alter the analysis as to whether he is a fit and proper person who should be permitted to continue practice as a licensee. There is no suggestion, for example, that he might be able to materially change his medical condition.
Conclusion
[77] While I do not consider that the appeal is hopeless, and Mr Foley has argued it as well as possible, overall the points raised do not make any material difference to the outcome of the case. Also, I consider it appropriate to take into account the Tribunal’s specialist expertise when it comes to determining the appropriate penalty in disciplinary proceedings. The fact it heard from Mr Drever is also clearly relevant.
[78] For the reasons given by the Tribunal and for the further reasons set out above, I consider the Tribunal was correct to find that Mr Drever is not a fit and proper person to hold a licence under the Act, and to cancel his licence.
[79] The charge is moderately serious. But the prevailing factors in this case are the repeated nature of the charges and findings against Mr Drever, and his evidence in response to this latest charge, from both of which the only fair inference is that he is indifferent to meeting minimum acceptable practice standards, or he is not capable of complying with them.
[80] I emphasise that there is no dishonesty involved on the part of Mr Drever and that he did co-operate with the Tribunal. As the respondent pointed out, removal of a licence is not permanent. Mr Drever can apply to be relicensed after five years. In the meantime, he should be focusing on education and operational processes that might enable him to both work and comply with the rules that are so important to public confidence in the real estate industry.
[81] The appeal is dismissed.
[82] The respondent is to file a memorandum as to costs within 14 days. Mr Drever has 14 days to respond.
Hinton J
Appendix: Complaints Assessment Committee: Charge against Aaron Drever
Summary of Previous Disciplinary Findings
| Complaint Reference | Period of Charged Conduct | Nature of Conduct | Substantive Decision | Penalty Decision |
| CA4825587 | January–February 2011 | Conduct relating to instructions for sale by auction | 22 August 2011 Unsatisfactory conduct | 4 November 2011 Censured (appealed by Complainant; settlement reached) |
| CB5858318 | November 2011 | Did not provide Guides, provided insufficient information relating to subdivision, did not insert material particulars on sale and purchase agreement, did not advise purchasers to seek legal advice | 10 October 2012 Unsatisfactory conduct | 13 December 2012 Censured |
| C00412 | March–August 2012 | Failed to explain amendments to sale and purchase agreement, overcharged commission because care not taken to confirm the actual price | 17 October 2013 Unsatisfactory conduct | 14 April 2014 Censured Ordered to complete course “Demonstrate knowledge and use of inspection, appraisal and agency agreement for real estate property” Refund fees to Complainant Fined $3,500 |
| C00566 | December 2012– January 2013 | Acted in conflict of interest, failed to obtain written confirmation of commission agreement | 27 June 2013 Unsatisfactory conduct | 27 August 2013 Censured Ordered to complete course “Explain the principles of ethics applying to real estate practice” |
| READT 036/14 | 2013 | Held advertising money in his personal bank account rather than | 25 November 2014 (Guilty plea) | 18 December 2014 [2014] NZREADT 101 |
| depositing it in the agency’s account | Misconduct (Seriously negligent real estate work) | Ordered to complete “a suitable refresher educational course to focus on general office practice in handling clients’ and customers’ money” Fined $5,000 | ||
| C07072 | September– October 2014 | Failed to provide Complainant with copies of photographs, failed to provide Complainant with prompt feedback about open homes, failed to attend meetings, put pressure on Complainant to withdraw her complaint to the agency regarding his conduct | 15 September 2015 Unsatisfactory conduct | 17 December 2015 Censured Ordered to reduce, cancel, or refund fees up to $10,000 Fined $8,000 |
| C06292 | August–September 2014 | Failed to follow Complainants’ instructions, failed to ensure that he explained matters relating to the sale of a property to a level and in a manner that the Complainants understood the process | 5 November 2015 Unsatisfactory conduct | 17 March 2016 Censured Ordered to rectify error omission at his own expense Fined $5,000 |
| C07275 | December 2014– April 2015 | Pressured Complainants (purchasers) to sign a variation to the sale and purchase agreement, failed in his obligations to the Complainants as he went overseas and did not delegate his ongoing transactions to another licensee within the agency | 15 December 2015 Unsatisfactory conduct | 11 March 2016 Censured Ordered to pay costs or expenses incurred to the Complainant |
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