Handley v Real Estate Agents Authority

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…