BEFORE THE REAL ESTATE AGENTS DISCIPLINARY TRIBUNAL. An Appeal under Section 111 of the Real Estate Agents Act Appellant

Transcription

1 BEFORE THE REAL ESTATE AGENTS DISCIPLINARY TRIBUNAL [2018] NZREADT 21 READT 008/18 IN THE MATTER OF An Appeal under Section 111 of the Real Estate Agents Act 2008 BETWEEN ANDREI KOZLOV Appellant AND THE REAL ESTATE AGENTS AUTHORITY (CAC 416) First Respondent AND SUSAN HALL and RICHARD LINDSAY Second Respondents On the papers: Tribunal: Submissions received from: Hon P J Andrews (Chairperson) Ms C Sandelin (Member) Mr N O Connor (Member) Mr Kozlov, Appellant Ms E Mok, on behalf of the First Respondent Ms K Harkess, on behalf of the Second Respondents Date of Ruling: 11 June 2018 RULING OF THE TRIBUNAL (Application to submit further evidence)

2 Introduction [1] The appellant, Mr Kozlov, has appealed against the decision of Complaints Assessment Committee 416 ( the Committee ) dated 25 January 2018, in which the Committee decided to take no further action on his complaint against the second respondents, Ms Hall and Mr Lindsay ( the decision ). The decision was made pursuant to s 90(2)(c) of the Real Estate Agents Act 2008, after the Committee had conducted an inquiry. [2] Mr Kozlov has applied for leave to submit further evidence to the Tribunal, in support of his appeal. The Tribunal has received submissions from Mr Kozlov, Ms Mok on behalf of the Real Estate Agents Authority ( the Authority ), and Ms Harkess on behalf of the second respondents, Ms Hall and Mr Lindsay. Background [3] In March 2017, Mr Kozlov bought a property in Hamilton, off the plans. Ms Hall was the listing salesperson engaged to market the property. Mr Lindsay was the branch manager of the agency by which Ms Hall was employed ( the Agency ). [4] Following the purchase, Mr Kozlov complained, initially to the Agency and then to the Authority, that: [a] Ms Hall had misrepresented the property, as a window shown on the plans was absent from the completed property. [b] The property was not ready for a pre-settlement inspection on the nominated date. There was building rubbish on the property, and the garage had paint splashes and a 3m long crack on the concrete floor. Mr Kozlov complained that Ms Hall did not take any action before the inspection to ensure that the property was ready for settlement. [c] Ms Hall failed to ensure that the property was ready for inspection on a second pre-settlement inspection date. Not all remedial work had been completed and not all appliance manuals were available for inspection.

3 [d] A waste disposal unit had not been installed at the time of settlement. [e] Ms Hall went into the property after settlement, without Mr Kozlov s permission. [f] Mr Lindsay failed to provide adequate customer service after Mr Kozlov made a complaint to the Agency about Ms Hall s conduct. The Committee s decision [5] The Committee s decision to take no further action on Mr Kozlov s complaint was based on four factual findings: [a] Ms Hall used advertising material supplied by the vendor and advertised the property in good faith. The advertising material was in part generic, as it advertised the property and two other units in a mix of two and threebedroom units, and the plans supplied by the vendor were concept plans for the purposes of marketing. Ms Hall s advertising flyer for the property included a statement that prospective purchasers should not be confined to the contents of the material herein and should make their own inquiries to satisfy themselves in the accuracy of all aspects. 1 [b] Ms Hall s purpose in entering the property after settlement was to check the installation of the waste disposal unit, after receiving a call from Mr Kozlov s solicitor asking her to inspect the property, and instructing her to use keys she was holding for Mr Kozlov. The Committee concluded that this part of Mr Kozlov s complaint was vexatious and unwarranted. 2 [c] Responsibility for the condition of the property lay with the vendor, not Ms Hall, as the vendor s agent. Ms Hall conveyed Mr Kozlov s concerns to the vendor and it was the vendor s responsibility to remedy them. 3 1 Committee s decision, at paragraphs At paragraphs At paragraphs

4 [d] Mr Lindsay had provided adequate customer service. 4 Issues to be determined on the appeal [6] The grounds of Mr Kozlov s appeal are set out in his Notice of Appeal. The Tribunal is required to determine whether Mr Kozlov has established that: [a] The Committee was wrong to decide to take no further action on his complaint; [b] The Committee was wrong to conclude, on the information before it, that Ms Hall had instructions from Mr Kozlov s solicitor to enter the property after the sale and purchase agreement was settled, and that Ms Hall did not commit an offence in doing so; [c] The Committee was wrong to decline to make an order for him to be reimbursed for damages of $1049 claimed by him. Mr Kozlov s application to submit further information [7] Mr Kozlov has applied to submit the following material: [a] An chain between himself and his solicitor relating to the Committee s finding that Ms Hall had been asked by her to enter the property after settlement, and authorised to do so. [b] Photographs and s concerning installation of the waste disposal system. [c] Correspondence with the Hamilton Police relating to Ms Hall s entry to the property after settlement. 4 At paragraphs

5 [d] Correspondence with Ms Hall and Mr Lindsay relating to an offer of reimbursement. [e] A Disputes Tribunal order. Principles as to applications to adduce further evidence and to cross-examine parties and/or other persons [8] Section 111(3) of the Act provides that an appeal against a Committee s decision is by way of rehearing. That is, the Tribunal will consider whether the Committee came to the wrong decision on the material it had before it. The appeal is determined by reference to that material, the Committee s decision, and submissions made by or on behalf of the parties. 5 However, the Tribunal may, on application, give leave to a party to submit material that was not provided to the Committee, in support of the appeal, if it is in the interests of justice that it be considered by the Tribunal. [9] If a party wishes to submit material that was not provided to the Committee, the party must apply to the Tribunal for leave to do so. The application must set out the material the applicant seeks to have admitted, and the reasons why it was not provided to the Committee, and could not reasonably have been provided to the Committee. The applicant must also explain why it is in the interests of justice that the documents be received by the Tribunal. In deciding whether it is in the interests of justice to receive further material, the Tribunal will consider whether the material is relevant to an issue to be determined, and will assist the Tribunal to determine them. Documents for which leave is not required [10] It is noted in the submissions made by Ms Mok, on behalf of the Authority, and Ms Harkess, on behalf of Ms Hall and Mr Lindsay, that the material referred to in paragraph [6][b], [d], and [e] above were before the Tribunal. The Tribunal does not need to consider those matters, as they are in the bundle of documents relevant to the appeal. Leave is not required. 5 See Eichelbaum v Real Estate Agents Authority (CAC 303) [2016] NZREADT 3, and Nottingham v Real Estate Agents Authority [2017] NZCA 1.

6 Correspondence between Mr Kozlov and his solicitor Submissions [11] Mr Kozlov s correspondence with his solicitor was not before the Tribunal. Mr Kozlov submitted that the Committee should have, but did not, contact his solicitor to confirm Ms Hall s explanation as to her going into the property after settlement, and did not request evidence of the communication Ms Hall said she had with the solicitor. [12] Ms Harkess did not oppose Mr Kozlov s application to submit the correspondence with his solicitor. However, she noted that a portion of the dated 7 February 2018 was redacted. She submitted that a natural reading of the chain suggested that the s were confined to factual matters in dispute and such that it cannot be said that the redacted portion is not privileged. She further submitted that a waiver of privilege could be implied, as Mr Kozlov is relying on the solicitor s statements on the issue of whether she gave Ms Hall permission to enter the property. [13] Ms Mok submitted that the application to submit the correspondence with his solicitor is an attempt by Mr Kozlov to improve on the evidence that was before the Committee. She also submitted that, in any event, in stating that she had no written record on my file of any conversations with any person post settlement about continued remediation or access to the property for that purpose, and that she had no clear recollection of conversations at that time as it was nearly a year ago the solicitor was not disputing that there may have been such conversations. [14] Accordingly, she submitted, the correspondence would not have had an important influence on the Committee s decision, and is unlikely to be of any real assistance to the Tribunal in determining the issues on appeal. [15] Ms Mok further submitted that Mr Kozlov has not explained why the correspondence could not have been obtained and provided to the Committee. She submitted that Mr Kozlov had the opportunity to contact his solicitor and to seek her comment on Ms Hall s statements, then provide that information to the Committee, before the Committee reached its decision. She submitted that Mr Kozlov has given no explanation why he did not do this, and in the absence of such an explanation, has

7 failed to establish why the usual position that appeals are determined on the material that was before the Committee should not be followed in this case. Discussion [16] The Tribunal accepts that the chain was available to Mr Kozlov at the time the Committee was considering his complaint, and he could have provided it to the Committee. Mr Kozlov has not explained why he did not provide them. However, as Ms Harkess does not oppose Mr Kozlov s submitting the s, the Tribunal will, subject to the proviso set out below, give leave for them to be admitted. [17] The proviso relates to the redacted portion of the dated 7 February Mr Kozlov has not explained the redaction. Before leave is given for any of the s to be submitted, Mr Kozlov must provide the Tribunal with an unredacted copy of the and must explain the redaction. The Tribunal will consider Mr Kozlov s explanation and make any necessary further orders. Correspondence from the Police concerning Ms Hall s entry to the property Submissions [18] Mr Kozlov seeks leave to submit a letter to him from the Hamilton Police, dated 25 September 2017 ( the Police letter ), advising him that it would not investigate a report from him. Mr Kozlov s report appears to relate to his allegation that Ms Hall entered the property after settlement, without authorisation to do so. [19] It appears from Mr Kozlov s annotation on this letter that if leave is given for the letter to be received in evidence, he would submit that the Police did not take a statement from Ms Hall despite his insistence that they do so, and wrongly concluded that Ms Hall entered the property legally on 15 March 2017, before his agreement for sale and purchase was settled. He noted that Ms Hall admitted to the Committee that she entered the property on 16 March [20] Ms Harkess submitted that leave should not be given for the Police letter to be received in evidence. She submitted that it does not prove or disprove whether Ms

8 Hall was permitted to enter the property on 16 March She also submitted that the Police letter was available to Mr Kozlov at the time of the Committee s investigation of his complaint, and he could have provided it before the Authority investigator s report dated 7 December She noted that Mr Kozlov had provided further information to the Committee on 11 November and 7 December [21] Ms Mok submitted that the Police letter is irrelevant to the Tribunal s determination of the issues on appeal, so will not assist the Tribunal in determining the appeal. She also submitted that the Police letter was available to Mr Kozlov, and could have been provided by him at the time of the Committee s investigation, and that he has failed to provide any explanation as to why he did not provide it to the Committee. Discussion [22] The Tribunal accepts the submissions made by Ms Harkess and Ms Mok. Mr Kozlov s annotations on the Police letter indicate that he is of the opinion that the Police did not properly investigate his complaint. Whether or not Mr Kozlov s opinion is correct is not relevant to the issues to be determined on the appeal (set out at paragraph [6] above), and it will not assist the Tribunal to determine those issues. [23] Further, the letter was addressed to Mr Kozlov, and was received by him at the time the Committee was considering his complaint. He has provided no explanation as to why he did not provide it to the Committee at that time, or why he should be given leave to submit it the Tribunal now. [24] Accordingly, the Tribunal will decline Mr Kozlov s application for leave to submit the Police letter, in support of his appeal. Outcome [25] Mr Kozlov is directed to provide the Tribunal with an unredacted copy of his solicitor s dated 7 February The Tribunal will make any necessary further orders after considering it. [26] Mr Kozlov s application to submit the Police letter is declined.

9 [27] Pursuant to s 113 of the Real Estate Agents Act 2008, the Tribunal draws the parties attention to s 116 of the Real Estate Agents Act 2008, which sets out appeal rights. Any appeal must be filed in the High Court within 20 working days of the date on which the Tribunal s decision is served. The procedure to be followed is set out in part 20 of the High Court Rules. Hon P J Andrews Chairperson Ms C Sandelin Member Ms N O Connor Member 2018 NZREADT 21 - Kozlov - Ruling