Real Estate Agents Authority v Baker [2017] NZDC 26217

Published 12 July 2018

Carrying out Real Estate Agent work without being licensed to do so — sale of a property — agency — verdict — judge alone trial — Fair Trading Act 1986, s 2 — Real Estate Agents Act 2008, s 141 — Maxwell James House v Real Estate Agents Authority [2013] NZHC 1619. The defendant was prosecuted for carrying out Real Estate Agent's work without a licence, without being exempt from the requirement to be licensed. He had not claimed to be a Real Estate Agent and contended that as his role in the sale of a property was neither that of principal nor agent of the vendors, his actions in the matter were not caught under the definition of "real estate agency work" but came under the definition of general advice, for which a licence is not required. Focusing on the transactions between the vendors, purchasers and the pattern of behaviour of the defendant in the sale of the property the Court noted that a formal agreement to act as an agent or principal was not required for work performed to be defined as "real estate agency work", nor was it required that a transaction is completed but rather the issue was whether the defendant acted in the capacity of a real estate agent; whether he was directly engaged on behalf of a party or parties and performing work for the purpose of bringing about a sale and purchase transaction. The court accepted evidence that the purchasers of the property had relied on the defendant to identify and communicate with the vendors of that property, that he had advised on the suitability of the property and that they had regard to that advice in making decisions about the purchase of the property. The defendant's role was "crucial" in the sale as "he had knowledge that neither party possessed about the other". The purchasers rewarded the defendant with a year's free grazing on the property. The defendant had also invoiced the vendors of the property for his services. The court found that the defendant did act on behalf of the vendor and the purchaser, and that it was not required that there be a written agency agreement. The charge was found to be proven beyond a reasonable doubt and the defendant was accordingly found guilty. Judgment Date: 27 November 2017.