Handley v Real Estate Agents Authority
[2018] NZHC 231
•23 February 2018
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV 2017-485-643
[2018] NZHC 231
BETWEEN DIANA HANDLEY
Appellant
AND
THE REAL ESTATE AGENTS AUTHORITY
First Respondent
AND
STEVE FEJOS
Second Respondent
Hearing: 22 February 2018 Counsel:
Appellant in Person
E M Fitzherbert for First Respondent C Child for Second Respondent
Judgment:
23 February 2018
JUDGMENT OF SIMON FRANCE J
[1] This is an appeal concerning a decision of a Real Estate Agents Complaints Assessment Committee to decline to investigate a complaint made by Miss Handley. The Real Estate Agents Disciplinary Tribunal (the Tribunal) dismissed an appeal from that decision and Miss Handley appeals further to this Court.1
Facts
[2] Miss Handley unsuccessfully tendered to purchase a property. The real estate agent handling the sale was the second respondent, Mr Fejos.
1 Handley v Real Estate Agents Authority (CAC 412) [2017] NZ READT 45.
HANDLEY v THE REAL ESTATE AGENTS AUTHORITY [2018] NZHC 231 [23 February 2018]
[3] Miss Handley had inspected the property and sought from Mr Fejos some documentation – a builder’s report and a LIM report. There were errors made in providing these documents:
(a)the builder’s report was sent in a timely way but to the wrong email address. What warning message this would have generated in Mr Fejos’ email system is a contested point. It is clear, however, that he did not resend it. The initial email was 26 September 2016. Miss Handley rang Mr Fejos at 9.00 am on 3 October to ask as to its whereabouts. Mr Fejos resent it at 7.56 pm that evening. In the same email, he advised the LIM report was not yet to hand but was expected on 4 October;
(b)Mr Fejos sent an email on 4 October at 11.25 am purportedly attaching the LIM report. It was not, however, attached to the email. On 5 October Miss Handley emailed Mr Fejos to indicate she was awaiting a valuer’s report but did not mention the LIM issue. On 6 October at
4.18 am she emailed saying the LIM report had not been attached. Mr Fejos sent it through at 7.15 am.
[4] The tender closed at noon that day. Miss Handley put in an offer conditional on finance and a building report. Later that day Mr Fejos contacted her and said the vendor had asked him to approach three bidders to submit further offers. The conditional nature of her tender was a concern. Miss Handley requested a further viewing and Mr Fejos said he could organise it. However, Miss Handley never pursued that.
[5] Any revised tender was to be submitted by 10.00 am. Miss Handley emailed at 8.15 am removing all conditions but the finance condition which dropped from 10 days to five days. Her revised tender missed out to an unconditional offer for a sum $76,000 higher.
Complaint
[6] Miss Handley complained that the delays caused by Mr Fejos’ errors, and his accompanying lack of communication, caused her to miss out on the property. The basic proposition was that the delays meant Miss Handley could not make an unconditional offer. No evidence was filed to establish the causative link between having these two reports and the conditional nature of her offer. The primary focus was on the inaction by Mr Fejos from 26 September 2016 when the builder’s report was sent to the wrong email address.
Committee decision
[7]Section 72 of the Real Estates Agent Act 2008 (the Act) 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.
Miss Handley’s complaint was essentially targeted at s 72(a).
[8]Also, to be noted is s 79 which provides:
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 and 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.
[9] The Committee concluded that s 79(2)(b) applied and therefore the complaint would not be progressed. It classified the delay in forwarding the reports as minor, and noted that Miss Handley had not herself pursued the builder’s report. This told against the suggestion it was vital to the exercise. The Committee considered the alleged errors, if established, could not support a finding of unsatisfactory conduct.
Tribunal decision
[10] The appeal to the Tribunal was an appeal from the exercise of discretion and so subject to more limited appellate review.2 The Tribunal did not consider the Committee was wrong to characterise the delays as short and minor. The Tribunal noted:
(a)the lack of effort on Miss Handley’s part to pursue the building report when it was not received as expected;
(b)that her email of 5 October said nothing about the missing LIM; and
(c)the absence of evidence supporting the idea that the delays affected the nature of the tender.
[11]The conclusion was that the Committee’s decision was open to it.
2 Nottingham v Real Estate Agents Authority [2017] NZCA 1, at [36].
High Court appeal
[12] The appeal is brought pursuant to s 116 of the Act. It is a general appeal from the Tribunal’s decision. Accordingly, this Court must reach is own view of the Committee’s decision, albeit recognising that analysis is an exercise of discretion appeal.3
Appellant’s submissions
[13] Miss Handley repeats submissions made at the earlier hearings. She submits the delays were significant, not minor. The primary focus is on two aspects of the builder’s report – the whole period of delay, but also the one day delay when asked the second time. As for her own inaction, Miss Handley submits the complaint and the focus is on what Mr Fejos should have done, and did not. Miss Handley does accept, however, she did not give any indication that the property was particularly significant to her. Accordingly, there is no suggestion Mr Fejos was placed on notice of heightened significance.
[14] Miss Hadley particularly emphasises the one day delay on 3 October. This is a reference to the period from her 9.00 am call and the 7.56 pm email sending the report. Given that the tender closed at noon on 6 October she submits the delay is capable of being seen as conduct falling below acceptable standards.
Decision
[15]The respondents’ submissions are reflected in the decision.
[16] It was open to the Committee to conclude no further action was required. The two periods of delay were unfortunate and a mistake, but on the available evidence can only be regarded as immaterial to the fact that Miss Handley was unsuccessful in her tender. That being so, it was well open to the Committee to conclude they were not mistakes that of themselves merit a disciplinary process. They were oversights of no established consequence, and by no means egregious in the nature.
3 Above at [36].
[17] Accordingly, I agree with the decision of the Tribunal that the Committee neither erred nor reached a decision that was plainly wrong.
[18] The appeal is dismissed. Each respondent was separately represented and is entitled to an award of standard costs together with reasonable disbursements to be fixed by the Registrar if necessary.
Simon France J
0