Quiambao v Barker - [2020] NZHC 371

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1820

[2020] NZHC 371

IN THE MATTER OF An appeal under s 116 of the Real Estate Agents Act 2009 and Part 20 of the High Court Rules

BETWEEN

JOHN QUIAMBAO AND HOI (STEPHEN) WAN

Appellants

AND

LANCE ROBERT BARKER AND GEORGINA BARKER

First Respondents

THE REAL ESTATE AGENTS AUTHORITY (CAC 518)

Hearing: 26 February 2020

Appearances:

K Harkess and L van Arendonk for the Appellant M Cherrington for the First Respondents

E Mok for the Second Respondents

Judgment:

3 March 2020

JUDGMENT OF MUIR J

This judgment was delivered by me on Tuesday 3 March 2020 at 4.00 pm
pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Solicitors:
McElroys, Auckland
MBC Law Limited, Auckland Meredith Connell, Auckland

QUIAMBAO v BARKER [2020] NZHC 371 [3 March 2020]

Introduction

[1] John Quiambao and Hoi (Stephen) Wan (together the Licensees) appeal a decision of the Real Estate Agents Disciplinary Tribunal (the Tribunal),1 in which the Tribunal made findings of unsatisfactory conduct against them.2 That decision was on appeal by the first respondents (the Barkers), from a determination of the Complaints Assessment Committee 518 (the Committee), to take no further action on the Barker’s complaint. The Licensees operate from the Ray White Remuera Office in Auckland.

[2]Before the Committee the Barkers had advanced four complaints.

(a)Mr Quiambao made misleading representations about the ease of selling their existing house at 15 Briody Terrace, Stonefields, Auckland (Property 1) for the desired price.

(b)The Licensees had provided them with an inaccurate comparative market analysis (CMA) in relation to that property based on out of date sales figures.

(c)The Licensees had failed in their duties by encouraging the Barkers to make an unconditional offer in respect of property situated at 12A Vialou Lane, Stonefields (Property 2).

(d)Mr Wan had said another prospective purchaser had put an offer in on Property 2 when there was no such offer.

[3]The Committee found none of these allegations to have been proved.

[4] On appeal the Tribunal held that the Licensees had breached their obligations under the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2012 (the Rules):

(a)in respect of their appraisal of Property 1 (rr 10.2 and 10.3); and

1 Barker v Real Estate Agents Authority [2019] NZREADT 36.
2 The penalty imposed was censure only.

(b)by failing to tell the Barkers that an offer in respect of Property 2 by another party (the H Trust) had been rejected, thereby causing the Barkers to make a pre-auction offer under “undue or unfair pressure” (rr 6.2, 6.4 and 9.2).

[5]The Licensees say the Tribunal’s decision was wrong because:

(a)in relation to the appraisal of Property 1:

(i)the Tribunal imposed a requirement that comparable sales evidence be “recent” or “current” when there is no such requirement in the Rules.

(ii)it invoked r 10.3 relating to cases where there are no directly comparable or semi-comparable sales when that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 371
Decision Date: 3 March 2020

CaseChat Overview and Summary

This appeal involves a complaint made by the Barkers against the Licensees, John Quiambao and Hoi (Stephen) Wan, in relation to the sale of two properties. The Real Estate Agents Authority's Complaints Assessment Committee (the Committee) had decided that the Barkers' complaint was unsubstantiated. The Barkers appealed this decision to the Real Estate Agents Disciplinary Tribunal (the Tribunal) which found the Licensees guilty of unsatisfactory conduct and imposed a censure. The Licensees appeal the Tribunal's decision to the High Court. The Court allows the appeal and sets aside the Tribunal's finding of unsatisfactory conduct and the associated order of censure. It reinstates the decision of the Committee to take no further action. The Court does not make a decision on the issue of costs at this stage.

The key legal issues the Court had to decide were:

1. Whether the Tribunal was correct in requiring that the comparable information on sales of land in similar locations specified in r 10.2(c) necessitated that the information be "current" and in concluding that because the information appearing in the comparative market analysis "may not still be current", there was noncompliance with r 10.2.
2. Whether r 10.3 was engaged.
3. Whether there was jurisdiction to find that the Licensees had failed to advise the Barkers of rejection of the H Trust offer.
4. Whether the Tribunal was correct to hold, on the balance of probabilities, that there had been such a failure.
5. Whether, in any event, such a failure could be said to have placed the Barkers under "undue or unfair pressure".

The Court's reasoning and outcome were:

1. The Court agreed with the Authority and the Licensees that the focus of the Tribunal should have been on whether the appraised value was consistent with the actual market at the time, not whether a property which sold nine to 11 months earlier "may not still be current". The Court found that the comparables chosen were indeed capable of being compared with the Barkers' property and there was no evidence that the Licensees did not regard them as realistically reflecting current market conditions.

2. The Court found that r 10.3 was not engaged because the 2017 sales were directly comparable (or at the very minimum semi-comparable) to Property 1.

3. The Court held that the Tribunal did not have jurisdiction to find breaches of rr 6.2, 6.4 and 9.2 on the basis found by the Tribunal. The issue of whether the Licensees had an obligation to communicate the outcome of the bona fide third party offer was simply never before the Committee because that was not the way the Barkers claim had been initially framed.

4. The Court found that it was more likely than not that the Barkers would have submitted their pre-auction offer even if they had been told that the H Trust offer was no longer "live".

5. The Court found that the Barkers could not be said to have been placed under any undue or unfair pressure by non-communication of the rejection because they were aware of Ray White Remuera's protocols in respect to pre-auction offers.

Orders