BEFORE THE REAL ESTATE AGENTS DISCIPLINARY TRIBUNAL

[2019] NZREADT 8
READT 016/18
IN THE MATTER OF

A charge laid under s 91 of the Real Estate Agents
Act 2008

BROUGHT BY

COMPLAINTS ASSESSMENT COMMITTEE 413

AGAINST

BERNADETTE MAKUINI MARR
Defendant

Hearing:

26 – 30 November, 3 – 4 December 2018

Tribunal:

Hon P J Andrews, Chairperson
Mr G Denley, Member
Mr N O’Connor, Member

Appearances:

Mr S Waalkens, on behalf of the Committee
Mr J Wain, on behalf of Ms Marr

Date of Decision:
27 February 2019
____________________________________________________________________
DECISION OF THE TRIBUNAL
____________________________________________________________________

 Introduction
[1]

Complaints Assessment Committee 413 (“the Committee”) has charged Ms

Marr with misconduct under s 73(a) of the Real Estate Agents Act 2008 (“the Act”).
The Committee alleges that Ms Marr engaged in conduct that would reasonably be
regarded by agents of good standing, or reasonable members of the public, as
disgraceful.
[2]

The essence of the particulars of the charge is that Ms Marr:1
[a]

engaged another person (Ms Guttenbeil) as a front to hide the fact that she
was purchasing her own family home at a mortgagee sale by auction
(particular (a));

[b]

inserted words (“+/or nominee Barry Ian Parkins”) into a contract of sale
by auction of the property without advising the mortgagee (particular (c));

[c]

used a sale and purchase form in the name of the agency at which she was
engaged to create a sale and purchase agreement of the property, dated 2
August 2013, from Ms Guttenbeil to two of her children, in breach of the
agency’s internal protocol (particular (b));

[d]

forged the signature of the vendor, Ms Guttenbeil, on that agreement for
sale and purchase (particular (e));

[e]

unilaterally added a “contemporaneous settlement” clause to that
agreement for sale and purchase (particular (f));

[f]

created a further sale and purchase agreement, dated 9 August 2013, which
specified a purchase price and deposit which were greater than the actual
purchase price and deposit (particular (g)); and

1

The above summary is set out in the chronological order of the alleged conduct. This is not the
order in which the particulars of the charge are set out.

 [g]

instructed her solicitor to lodge a caveat on the title to the property, on
behalf of herself and her two children, citing the 2 August 2013 agreement
in support of her claim to have an equitable interest in the property
(particular (h)).

Facts
[3]

Ms Marr is a licensed salesperson, and at the relevant time was engaged at

Bayleys Real Estate (“the Agency”). The charge against Ms Marr concerns her family
home in Parnell, Auckland (“the property”).
[4]

The property was bought by Damian Marr (Ms Marr’s son) and David Askew

on 21 December 2007, with mortgage finance from Linkloan Trustees Ltd
(“Linkloan”). Ms Marr was responsible for making mortgage payments. In November
2012, she fell behind in making payments.
[5]

All subsequent events occurred between February and August 2013. On 26

February, Linkloan issued a Notice of Default, specifying the amount required to
remedy the default as $13,995.25, together with costs of $950.00, payable by 5 April.
Ms Marr made payments to Linkloan between March and July, but these were not
sufficient and Linkloan subsequently began a process for the property to be sold by
auction on 17 July.
[6]

Ms Marr’s evidence was that preventing the mortgagee sale of her home was her

priority. On 1 July, she consulted a mortgage broker, Ms Shepherd. Because of her
financial circumstances, Ms Marr required 100% finance in order to redeem the
mortgage. On 12 July, Ms Shepherd advised Ms Marr that she had an offer of first
mortgage finance from Cressida Finance Ltd (“Cressida”). This was not sufficient to
discharge the mortgage to Linkloan, and Ms Shepherd was seeking second mortgage
finance for Ms Marr of $52,000. This proved to be difficult.
[7]

On 16 July, a “second tier” lender gave Ms Shepherd the name of Mr David

Barton as a person who might be able to assist. Mr Barton advised her that this would
not be a problem, as he specialised in “mortgagee sale rescues”. Later that day, Mr

 Barton sent Ms Shepherd an offer of finance comprising first mortgage finance of
$400,000, and two personal loans, each of $20,000. Ms Shepherd forwarded the offer
to Ms Marr.
[8]

Neither Ms Marr nor Ms Shepherd was aware that Mr Barton had been convicted

of offences of dishonesty, and had served terms of imprisonment for three years
(following his having pleaded guilty to 81 charges described as “commercial fraud”),
and (previously) three years and six months imprisonment (on similar fraud charges).
[9]

Mr Barton introduced a funder, Mr Barry Parkin, to assist Ms Marr to buy the

property at the auction. The proposal was that Mr Parkin would pay the deposit, then
allow Ms Marr time to arrange funding to complete the sale. Mr Parkin’s conditions
included a reduction in the deposit payable so as to reduce his exposure, extension of
the settlement period, and that a “Plan B” be established to protect his position in the
event that Ms Marr was not able to arrange funding. Thus, while the intention was
that Ms Marr’s three adult children would eventually be the purchasers, Mr Parkin
would be named on any auction contract of sale as a specific nominee. Ms Marr agreed
to these conditions.
[10] Ms Marr asked a colleague, Ms Guttenbeil, to bid for the property at the auction
on her behalf. Ms Guttenbeil agreed to do so. Ms Marr introduced her to Mr Barton,
and told her that he would organise the finances. She also told Ms Guttenbeil that Mr
Barton would tell her when to bid, and how high to go. Ms Guttenbeil attended the
auction, and Mr Barton introduced her to Mr Parkin. Ms Marr did not attend. Mr
Parkin approved Ms Guttenbeil’s bid up to $425,000, but the property was passed in.
Subsequently, on Ms Marr’s and Mr Parkin’s instructions, Ms Guttenbeil signed a
memorandum of contract to buy the property for $435,000 (“the auction sale
contract”). The terms of the auction sale contract included the reduced deposit and
extended settlement period, but did not name Mr Parkin as nominee.
[11] Mr Barton told Ms Marr that Mr Parkin would not pay the deposit unless he was
named as nominee. Ms Marr instructed Ms Guttenbeil to add Mr Parkin as nominee.
Ms Guttenbeil added the words “+/or nominee Barry Ian Parkins” to the auction sale
contract and signed and initialled alongside the addition (“the auction nomination

 provision”). Ms Guttenbeil gave the auction nomination provision to Ms Marr, who
sent it to Mr Parkin. She did not provide the mortgagee with a copy. Mr Parkin paid
the deposit on 19 July.
[12] A copy of the auction sale contract (which contained the nomination provision
in favour of Mr Parkin) was sent to Mr Phillips (Ms Guttenbeil’s solicitor) by the
agency which conducted the mortgagee sale.
[13] Ms Marr continued to try to arrange finance. The offer from Cressida was not
pursued. Mr Barton did not find her a lender, and Ms Marr lost confidence in him.
Ms Marr then approached another mortgage broker, Ms Samu. Ms Samu advised Ms
Marr that the problem with arranging finance was that the auction sale contract did not
provide for a nomination from Ms Guttenbeil to Ms Marr’s children. Ms Guttenbeil
advised Ms Marr on 30 July by email that she was happy to nominate them as
purchasers.
[14] Ms Samu then suggested that Ms Marr replace Ms Guttenbeil’s “nomination”
email with a sale and purchase agreement from Ms Guttenbeil to her children. On 1
August, Ms Marr prepared a sale and purchase agreement for the sale of the property
from Ms Guttenbeil to two of her children, Keith and Charlotte Marr.
[15] Ms Marr said she did this by taking a blank Agency agreement to a print/copy
centre in Auckland, and having them insert the details of the vendor, purchasers, estate,
and purchase price on the first page. The Agency protocols did not permit the use of
an Agency-branded sale and purchase agreement for a private sale by a salesperson,
and Ms Marr did not seek permission to do so.
[16] As a result, the agreement appeared to be (but was not) a printed agreement for
sale and purchase produced by the Agency. On the front page it named Ms Guttenbeil
as vendor, and Keith and Charlotte Marr as purchasers, and specified the purchase
price as $435,000. Ms Marr inserted Keith and Charlotte Marr’s names, and an
address, into Schedule 2. She also inserted, by hand, a list of chattels included in the
sale. Two originals of the agreement were signed by Keith and Charlotte Marr that
day.

 [17] Ms Marr arranged to meet Ms Guttenbeil at a café on 2 August. Ms Marr said
in evidence that the meeting lasted for about 30 minutes, they sat at a concrete table
outside the café, and Ms Guttenbeil signed and initialled the two originals of the
agreement. Ms Guttenbeil said that the meeting was very brief, she does not (and did
not on this occasion) sit outside the café, and she did not sign any documents. Whether
Ms Guttenbeil signed an agreement for sale and purchase on 2 August is the key issue
for determination by the Tribunal.
[18] Ms Marr said in her formal statement of evidence that she then inserted, by hand,
the date “2 August 2013”, on the front and back pages of both signed originals of the
agreement. At the hearing, counsel for Ms Marr, Mr Wain, advised the Tribunal that
Ms Marr entered the date “2 August 2013” on the front page of both of the signed
agreements, and on the back page of one of them, and that she entered the date “August
2 2013” on the back page of the other.
[19] The agreement on which the date “2 August 2013” appears on both the front and
back pages will be referred to as “the Q1 agreement”. The agreement on which the
date “August 2 2013” appears on the back page will be referred to as “the S5
agreement”. In all other respects, the two signed agreements were identical. From
this point, unless it is necessary to distinguish between them, we will refer to both the
Q1 and S5 agreements as “the 2 August agreements”.
[20] Ms Marr retained both the Q1 and S5 agreements. She did not provide Ms
Guttenbeil with either original agreement, or a copy, and she did not forward either the
Q1 or the S5 agreement to her solicitor or any other third party until 16 August.
[21] Ms Marr was still not able to arrange loan finance. On 8 August, Ms Samu
advised her that the ANZ bank had declined her application for finance, because the
deposit was too small. Ms Marr said Ms Samu suggested that a fresh “nomination
agreement” could be made between Ms Guttenbeil and the Marr children, showing a
“purchase price” of $560,000, and a “deposit” $125,000. She said this would mean
that the finance required from the bank would still be $435,000, being the amount
required to settle with the mortgagee. However, it depended on Ms Marr being able
to pay the increased deposit, and obtaining legal advice.

 [22] Ms Marr did not create a “nomination” agreement. She prepared a further sale
and purchase agreement (“the 9 August agreement”), by handwriting Ms Guttenbeil’s
name as vendor, and Keith and Charlotte Marr’s names as purchasers, onto two blank
Agency sale and purchase agreement forms. She recorded the purchase price as
$560,000, and the deposit as $125,000. She then removed the front pages of the Q1
and S5 agreements, and replaced them with the handwritten pages. Her evidence was
that in all respects other than the replacement of the first pages, the 9 August agreement
remained the same as the Q1 and S5 2 August agreements.
[23] Keith and Charlotte Marr initialled the handwritten pages of the 9 August
agreement the same evening.
[24] Ms Marr and Ms Guttenbeil met on 9 August. Ms Marr’s evidence was that Ms
Guttenbeil initialled the two handwritten pages of the 9 August agreement. Ms
Guttenbeil’s evidence was that she signed Schedule 2 of one original agreement, and
did not initial that or the other original agreement. She also said she did not pay any
attention to what she was signing, as she was preoccupied and stressed at the time by
having to deal with an urgent problem with her car.
[25] On 12 August, Ms Marr and Ms Guttenbeil met with Mr Phillips, who had been
asked to act for both Ms Guttenbeil and Ms Marr. Mr Phillips’ advice was that the 9
August agreement should not be pursued, as it did not reflect the true nature of the
auction sale contract. He also said that he would decline to act if it were pursued. Ms
Guttenbeil’s evidence was that there was no mention of any sale and purchase
agreement dated 2 August. In evidence in later proceedings in the High Court, Mr
Phillips also said there was no mention of such an agreement.
[26] Ms Marr’s evidence was that after the meeting with Mr Phillips she detached
and discarded the handwritten pages of the 9 August agreement, and re-attached the
front pages of the Q1 and S5 2 August agreements. Again, her evidence was that apart
from replacing the front pages of the 9 August agreement, the Q1 and S5 agreements
remained the same.

 [27] On 13 August, Ms Marr made two alterations to the 2 August agreements. In
the section where the settlement date is to be entered, she wrote “10 working days after
the date of service of the settlement notice (excluding day of service)”. In the section
where further terms of sale may be inserted, she inserted a typed “contemporaneous
settlement” clause as clause 18. Neither of these alterations was initialled by any of
the named parties.
[28] On 16 August Ms Marr engaged Mr Atmore to act for her, and added his name
to the 2 August agreements, as solicitor for the purchasers Keith and Charlotte Marr.
On 16 August, Ms Marr saved an electronic copy of the S5 agreement, naming it as “S
& P Contemporaneous Aug 13”. She then emailed this to Mr Atmore.
[29] Ms Marr continued to seek mortgage funding, investigating around six possible
sources, including Mr Barton. Settlement did not occur on the specified settlement
date of 15 August. Ms Guttenbeil was then in breach of the auction sale contract, and
was becoming increasingly concerned that she would be required to settle the
purchase. She investigated the possibility of buying the property with her son, but he
had difficulty raising finance. Mr Parkin was also becoming concerned as to his
position.
[30] On 21 August, Ms Marr destroyed one of the original signed 2 August
agreements, by chance the S5 agreement, after having been told by the Agency’s
Regional Manager that she should not have used an agreement bearing the Agency’s
branding. Accordingly, as from 21 August, the Q1 agreement was the only original
signed agreement in existence, but there remained also the electronic copy of the S5
agreement.
[31] On 26 August, Ms Guttenbeil signed a deed of nomination, in which she
nominated Mr Parkin as purchaser of the property under the auction sale contract. Her
evidence was that she did so at Mr Parkin’s invitation, and on Mr Phillips’ advice, after
she had completely lost faith in Ms Marr or her children being able to come up with
the money to settle the purchase. She said that Mr Phillips had said to her that she was
just keeping to the original agreement to name Mr Parkin as nominee on the auction

 sale contract, as Ms Marr had instructed her to do. She further said that Mr Parkin had
always been the back-up for her, in case Ms Marr could not buy the property.
[32] She advised Ms Marr of the nomination to Mr Parkin the same day. There was
then an exchange of text messages and emails between Ms Marr and Ms Guttenbeil,
in which Ms Marr expressed extreme concern regarding the nomination to Mr Parkin,
and Ms Guttenbeil advised that she had signed it on the advice of her lawyer. In an
email sent to Ms Guttenbeil, Ms Marr told her that she should “not fret”, as her solicitor
might be able to “stop this” as “you signed the Sale & Purchase agreement for my
children on 2 August remember.”
[33] Ms Guttenbeil said that at Ms Marr’s request, she sent Mr Phillips a text message
on 27 August, which she knew to be untrue, saying that she remembered signing a sale
and purchase agreement for $435,000. She said that although Ms Marr asked her to
do so, she did not mention the date 2 August. She said that Mr Phillips called her
immediately, and asked why she had sent a false message, to which she responded that
it was to help Ms Marr and her family buy a house.
[34] Ms Marr asked Ms Guttenbeil to send her a copy of the text to Mr Phillips, but
Ms Guttenbeil refused. Her evidence was that, on Mr Phillips’ advice, she deleted it
from her cellphone.
[35] On 28 August, Mr Atmore emailed Mr Phillips a copy of the S5 2 August
agreement, anticipating settling on “Friday”. Mr Atmore asserted that Ms Guttenbeil’s
nomination of Mr Parkin was contrary to the agreement between Ms Guttenbeil and
Keith and Charlotte Marr. Mr Phillips’ response was that Ms Guttenbeil had not
signed the 2 August agreement.
[36] Also on 28 August, Keith and Charlotte Marr signed a Deed of Nomination
pursuant to which they nominated the trustees of the Marr Family Trust as purchasers
under the 2 August agreement.
[37] At around this time, there was an exchange of text messages between Ms Marr
and Ms Guttenbeil, in which Ms Marr asserted that they both knew that Ms Guttenbeil

 had signed an agreement on 2 August, and Ms Guttenbeil asserted that they both knew
that Ms Marr had altered figures on an agreement.
Court proceedings
[38] As noted earlier, the key issue in this case is whether Ms Guttenbeil signed a sale
and purchase agreement on 2 August, and whether Ms Marr forged, or otherwise
knowingly used, a forged sale and purchase agreement dated 2 August 2013. It is
therefore relevant to consider judgments of the High Court and Court of Appeal, in
which the 2 August agreement was considered. We were referred to the judgments in
caveat proceedings issued by Ms Marr, and Keith and Charlotte Marr, in the High
Court,2 then appealed by Ms Marr to the Court of Appeal,3 and in bankruptcy
proceedings in the High Court brought by Mr Barry Parkin against Ms Marr, and Keith
and Charlotte Marr.4
[39] We record that s 109(1) of the Act provides that:
Subject to s 105 [which provides that the Tribunal may regulate its
procedures as it thinks fit (subject to the rules of natural justice)] the
Tribunal may receive as evidence any statement, document, information,
or matter that may, in its opinion, assist it to deal effectively with the
matters before it, whether or not that statement, document, or matter would
be admissible in a court of law.

[40] The judgments of the High Court and Court of Appeal assist the Tribunal to deal
with the matters presently before it, and have therefore been received as evidence
Caveat proceedings (High Court and Court of Appeal)
[41] On 29 August, Mr Atmore lodged a caveat on the title of the property on behalf
of Keith and Charlotte Marr, preventing finalisation of the sale to Mr Barton. The
caveat claimed that they had an interest in the land:
Pursuant to an unconditional agreement for sale and purchase dated 2
August 2013 between [Keith and Charlotte Marr] as purchasers and [Ms
Guttenbeil] as vendor, [Ms Guttenbeil] being purchaser under an
unconditional agreement for sale and purchase dated 18 July 2013 under a
2
3
4

Marr v Parkin [2014] NZHC 3269 (“High Court judgment”).
Marr v Parkin [2015] NZCA 371 (“Court of Appeal judgment”).
Parkin v Marr [2016] NZHC 2891 (“bankruptcy judgment”).

 power of sale exercised by [Linkloan] under Memorandum of Mortgage
7667128.3.

[42] Keith and Charlotte Marr were subsequently required to make an application to
sustain the caveat. Ms Marr was named as First Plaintiff, and Keith and Charlotte
Marr were named as Second Plaintiffs. Mr Parkin was named as defendant. The
electronic copy of the S5 2 August agreement was produced in support of the
application. Ms Marr subsequently provided the original of the Q1 agreement for
examination during the course of the proceedings.
[43] The caveat application was advanced on four causes of action, all of which were
dismissed by his Honour Justice Faire. His Honour’s finding on the second cause of
action is relevant to the charge against Ms Marr, as it required him to decide whether
the 2 August agreement was a genuine document.
[44] The original of the Q1 2 August agreement was examined forensically by a New
Zealand Police document examiner, Ms Nicole Walker, who provided the Court with
her opinion as to its authenticity. Justice Faire recorded Ms Walker’s conclusions as
follows:5
The document which was produced and which bears the date 2 August
2013, was examined by Nicola Kay Walker who is a document examiner
for the New Zealand Police. She outlined her training and experience. In
her report she recorded a number of tests and examinations she had carried
out on the contract. Her conclusion was the agreement could not be relied
on as a genuine document. In particular, she concluded that Ms
Guttenbeil’s signature on the document was the result of an attempt to
simulate, or copy, Ms Guttenbeil’s natural signature style. In her opinion,
it was not genuine.

[45] His Honour concluded:6
When I weigh up the matters I have mentioned, and the circumstances
surrounding that document, I conclude that it was not a genuine document
and it was certainly not signed by Ms Guttenbeil on 2 August 2013.

[46] In dismissing the claim that Ms Marr, and Keith and Charlotte Marr, had a prior
interest in the property arising out of the 2 August agreement, his Honour said:7

5
6
7

High Court Judgment: Marr v Parkin, fn 2, above, at paragraph [24].
At paragraph [26].
At paragraph [71].

 For the plaintiffs to succeed it must be shown that the plaintiffs had an
equitable interest prior in time to that of the defendant. The plaintiff’s
cause under this head fails because I have found that there was no
agreement between Ms Guttenbeil and the second plaintiffs, dated 2
August 2013. The premise upon which this cause of action was based does
not exist and therefore fails.

[47] An appeal by Ms Marr to the Court of Appeal against the dismissal of the first,
third, and fourth causes of action in the caveat proceeding was dismissed. The Court
recorded the following, regarding the 2 August agreement:8
At trial, it was established that that Ms Guttenbeil’s signature on the 2
August agreement was “not genuine”, that is to say, Ms Guttenbeil’s
signature was forged. That finding has not been appealed. Ms Guttenbeil
did not become aware of the 2 August contract until 26 August 2013.

[48] That the Court of Appeal agreed with his Honour Justice Faire’s finding is
demonstrated by its observations that:9
By 15 August 2013, Ms Marr had made a number of unsuccessful attempts
to raise the necessary money. She had even devised two dishonest schemes
to improve her prospects of raising funds. Those schemes involved the
forged 2 August 2013 contract and the 9 August 2013 contract, which
misrepresented the purchase price and the deposit which had been paid.

and:10
Although it does not arise, had we reached the stage of having to consider
relief, we would have required considerable persuasion that Ms Marr’s
conduct warranted equitable intervention. Ms Marr’s hands were far from
clean.

Bankruptcy proceedings
[49] The Court of Appeal ordered Ms Marr to pay costs to Mr Parkin. When they
were not paid, Mr Parkin issued bankruptcy proceedings against Ms Marr and Keith
and Charlotte Marr. His application for bankruptcy adjudications was declined.11
[50] Having set out the essence of the High Court and Court of Appeal judgments,
Associate Judge Christiansen referred to Mr Wain’s submission that there was “proof

8
9
10
11

Court of Appeal Judgment: Marr v Parkin, fn 3, above, at paragraph 19.
At paragraph [48].
At paragraph [53].
Bankruptcy judgment: Parkin v Marr: fn 4, above.

 of fraud by the actions of Mr Barton in particular but also by Mr Parkin”, and that there
was evidence that “was not available, or its significance not fully understood by
lawyers representing Ms Marr in the High Court or the Court of Appeal”. 12 He
recorded that “Ms Marr wishes to retain any rights of review or appeal open to her”
and added that “It is not this Court’s purpose at this time to evaluate her prospects in
that regard”.13 The Associate Judge then recorded Mr Wain’s submission that this was
“a matter for proper consideration by reference to s 38 of the Act”.14
[51] The Associate Judge exercised his discretion to decline bankruptcy adjudications
against Keith and Charlotte Marr by specific reference to s 37 of the Insolvency Act
2006. This was on the grounds that it was not just and equitable to make the
adjudications as they became involved to assist Ms Marr with the purpose of retaining
the property, and they received no legal advice, so were not represented (except
nominally) in Ms Marr’s proceeding against Mr Parkin.15
[52] The Associate Judge considered that the situation affecting Ms Marr was
different. We do not accept Mr Wain’s characterisation of the grounds on which the
application for a bankruptcy adjudication against Ms Marr was declined. He submitted
that the Associate Judge declined the application “in order that she might have the
opportunity to re-open the High Court litigation, on the basis that she was subject to a
fraud, and the judgment obtained against her was by way of fraud”.
[53] Section 38 of the Insolvency Act allows the Court to halt a bankruptcy
application to enable a judgment debtor to challenge the judgment that gave rise to the
judgment debt. Had it been the Associate Judge’s intention to decline the application
by exercising his discretion under s 38 (as sought by Mr Wain), he would have done
so by specific reference to that section.
[54] However, that was not the basis on which Mr Parkin’s application was declined.
Rather, it was on the basis of the Associate Judge’s assessment of the effect of a
bankruptcy adjudication, after Ms Marr had “lost her job and income source”. He
12
13
14
15

At paragraph [40].
At paragraph [41].
At paragraph [42].
At paragraphs [51] and [52].

 noted that Ms Marr’s claims that Mr Parkin was implicated in a fraud in order to obtain
the property for himself had been previously rejected, and called into question her own
claims of the existence of the 2 August agreement that had been the focus of Mr
Parkin’s claim of dishonesty on her part.16
[55] The Associate Judge concluded:17
The principles involved are about balance, justice and equity. These are
not about punishment or reward nor is it only about Mrs Marr and Mr
Parkin. A public interest perspective is required that goes beyond the
interests of those parties involved.
There is good reason for Mrs Marr to reflect and regret what has since
occurred. She has lost her job and income source. In that instance an order
for bankruptcy would be punitive and serve no practical purpose for her or
for public interest.

[56] We are conscious that the High Court and Court of Appeal judgments arose in
the context of different proceedings. Nevertheless, the facts required to be considered
in the Tribunal’s consideration of the disciplinary charge arising out of Ms Marr’s
response to the mortgagee sale proceedings are no different from those considered in
the High Court and Court of Appeal. In the circumstances, the findings in the High
Court judgment, not disturbed by the Court of Appeal, are highly persuasive.
Expert evidence
[57] The Tribunal is faced, as was the High Court, with conflicting evidence. Ms
Marr’s evidence was that Ms Guttenbeil signed two originals of the 2 August
agreement (that is, Q1 and the original of S5) on that day; Ms Guttenbeil’s evidence
was that she did not. Both maintained their evidence in cross-examination, both in the
High Court and before the Tribunal. Expert evidence regarding the “M J Guttenbeil”
signature appearing on the 2 August agreement was therefore critical.
[58] As recorded earlier, his Honour Justice Faire accepted Ms Walker’s evidence
(after examining the original Q1 agreement) and found that the “M J Guttenbeil”
signature on the Schedule 2 of that agreement was not genuine. That finding was not

16
17

At paragraphs [53] and [54].
At paragraph [57].

 appealed. However, the authenticity of the “M J Guttenbeil” signature was again in
issue before the Tribunal.
[59] Ms Walker is no longer employed by the Police. The Police Chief Document
Examiner, Mr Gordon Sharfe, gave evidence that he had peer-reviewed Ms Walker’s
report, and had examined the documents with Ms Walker. He agreed with her
conclusion that the Q1 agreement could not be relied on as being a genuine document.
[60] The original of the Q1 agreement was not available to the Tribunal. We were
advised that it had been lost, at some point after the High Court hearing. The original
of the S5 agreement (identical except for the date appearing on Schedule 2 of the
agreement being written as “August 2 2013” rather than “2 August 2013”) has not been
available since it was discarded by Ms Marr on or about 21 August 2013.
[61] Prior to the hearing before the Tribunal, Mr Stephen Dubedat was engaged by
Mr Wain to provide an opinion as to the authenticity of the “M J Guttenbeil” signature
on the Q1 agreement. Mr Dubedat was, understandably, at a significant disadvantage
by being unable to inspect the original of either the Q1 or S5 agreements.
[62] At the Tribunal’s request, Mr Sharfe and Mr Dubedat conferred and prepared a
joint memorandum regarding their examinations of the relevant documents. They
detailed their points of agreement and disagreement. The Tribunal is grateful for this
assistance provided to it. We summarise the memorandum as follows:
[a]

They agreed that the “M J Guttenbeil” signature on Schedule 2 of the Q1
agreement is not (Mr Sharfe) or probably not (Mr Dubedat) a genuine
signature of the writer of the specimen signatures provided by Ms
Guttenbeil. Mr Dubedat’s opinion was qualified due to his having only
non-original documents for examination.

[b]

They agreed that the “M J Guttenbeil” signature appearing on the Q1
agreement showed a high degree or uniformity with the signature on the
S5 agreement. They agreed that a possible means of production of the “M
J Guttenbeil” signature on the Q1 agreement is that the signature on the S5

 agreement, or a copy of it, served as a model to produce the signature on
Q1 through a simulation or tracing-type process. They also agreed that
handwritten entries on Schedule 2 are the same on both the Q1 and S5
agreements.
[c]

They agreed that the “MJG” initials on the Q1 agreement are pictorially
similar to specimen initials provided by Ms Guttenbeil, but disagreed
regarding authorship of those initials. Mr Sharfe’s opinion was that the
authorship examination was inconclusive because, despite the pictorial
similarity, there were a number of differences, and there was a wide range
of natural variation seen in the specimen signatures. Mr Dubedat’s opinion
that the “MJG” initials on the Q1 agreement were probably genuine was
based on his assumption that all of the initials were written by the same
author, and his instructions that the “MJG” initials on the S5 agreement
could be used as specimen initials. This was notwithstanding that Ms
Guttenbeil had denied writing them.

[d]

They agreed that the “M J Guttenbeil” signature on Schedule 2 of the S5
agreement, and the “M J Guttenbeil” signature alongside the addition of
Mr Parkin’s name as nominee on the auction nomination provision are, for
practical purposes, replicas; that is, one is a machine copy of the other, or
both are copies of a common original. In Mr Sharfe’s opinion, at least one
of the signatures cannot have been genuinely signed, and is the result of
some form of cut and paste simulation. In Mr Dubedat’s opinion, the
observations as to the signatures on S5 and the auction nomination
provision cast a high degree of doubt as to the authenticity of at least one,
and possibly both, of the signatures.

[e]

They agreed that the “bowl” of the letter “G” on three of the “MJG” initials
on the S5 agreement differ from the remaining initials. Mr Sharfe’s
opinion was that this was the result of an attempt to copy Ms Guttenbeil’s
natural initial style. Mr Dubedat noted that the initials on the S5 agreement
were specimen signatures, and there was no reason to believe they were
questioned. The Tribunal observes that, as noted earlier, Mr Dubedat was

 instructed that the S5 agreement was to be used as a specimen document,
notwithstanding that Ms Guttenbeil denied having signed or initialled it.
[63] Both Mr Sharfe and Mr Dubedat gave evidence and were cross-examined at the
Tribunal hearing.
[64] Mr Sharfe confirmed his evidence that his and Ms Walker’s conclusion that the
original Q1 agreement could not be relied on as genuine rested on a combination of
three factors: a simulated signature (on Schedule 2), a group of initials which showed
unexplained differences between the questioned initials and specimen initials, and
variations in production of the document which would not be expected in a document
that had been printed as a whole, and signed as a whole.
Number of specimens used for examination
[65] Whereas Ms Walker and Mr Sharfe referred to three “specimen” documents, Mr
Dubedat examined further documents, which included the electronic copy of the S2
agreement.
[66] Mr Sharfe rejected the proposition put to him that a minimum of ten specimen
signatures was required for an opinion as to authenticity, whereas Ms Walker and he
had used only three. He said that in the case of the “M J Guttenbeil” signature on the
Q1 document, they saw disfluency and direction of stroke issues, and no matter how
many specimen signatures you had, you would not expect to see that.
[67] Ms Walker was cross-examined in the High Court on the same point. Her
response was that the three specimen signatures were consistent in their construction,
fluently and speedily completed She also found a range of variation between the three
signatures, which would be expected in a genuine signature. She was confident that
three specimens were enough to base an opinion on.
[68] Mr Dubedat was asked in cross-examination to comment on the number of
specimen signatures required for comparison.

He responded that there was no

“magical number”, a “one-on-one” comparison could be done, but was never

 recommended, and the more specimen sample signatures you had, the stronger the case
for the questioned signature being genuine or not. He recommended a minimum of
ten, but said that an examination could be done with fewer: there were other factors
involved like the complexity of the signature. He added that a highly complex
signature would be difficult to forge, and document examiners had some time ago done
one-on-one comparisons of such signatures, although that was not now recommended.
[69] In re-examination, Mr Dubedat agreed that Ms Guttenbeil’s signature is “quite
lengthy” and “reasonably complex”. When asked if there is “an increased probability
of an incorrect analysis occurring if there’s only three specimen signatures used”, Mr
Dubedat responded:
The answer is yes, but its, when you have a complex signature you, which
has been been done, with a complex signature, lots of changing directions,
fluidly written, that’s very important, if you have a signature with all those
details in it, you actually need less signatures to be able to make a
determination rather than a simple simplistic signature, so, so, having a
smaller number of signatures, a complex signature, it doesn’t help but
(inaudible) you’ve got a complex signature which has been (inaudible)
written, so you really need less samples, for a less complex signature while
they make a variation in the signatures you need a lot more samples.

[70] In the light of Mr Dubedat’s evidence that Ms Guttenbeil’s signature was “quite
lengthy” and “reasonably complex”, and that fewer samples would be needed where
there is a complex signature, we conclude that Mr Sharfe’s and Ms Walker’s
comparison against three specimen signatures did not increase the probability of an
incorrect analysis. We note that while Mr Dubedat would have preferred to have more
specimens, he did not suggest that Mr Sharfe’s and Ms Walker’s conclusions were
incorrect, or unreliable.
Writing surface
[71] We recorded earlier (at paragraph [17]) that Ms Marr and Ms Guttenbeil gave
conflicting evidence as to where they sat at the café on 2 August. Mr Dubedat was
asked in examination in chief to comment on the possible effect on handwriting where
there is a rough surface underneath the paper written on. He responded that a rough
surface would affect the written line, but as he had not examined the original of the Q1
agreement, he could not say whether that had occurred in the present case.

 [72] Ms Walker was cross-examined on this point in the High Court. She could not
give a conclusive response, but referred to research regarding rough surfaces which
had identified specific characteristics that might be seen on a document signed on a
rough surface. She had not seen any of those characteristics on the Q1 agreement.
[73] We accept Ms Walker’s evidence.
Indentations
[74] Mr Sharfe was also questioned about indentations (impressions on a piece of
paper caused by writing on a page or paper above it) of the initials and signatures of
Keith and Charlotte Marr, observed on the Q1 agreement. In cross-examination, he
was asked to decipher the text of the indentations. In re-examination, he said that it is
not possible to determine when indentations have made their way onto a document:
they can go onto a page at any time before or after the page was printed, or at any time
before it is examined.
[75] We note Mr Wain’s submission that the text of the indentations supports Ms
Marr’s evidence as to how and when the S2 agreements were created. We accept Mr
Sharfe’s evidence that it is not possible to determine when indentations made their way
onto a document. In any event, Ms Marr’s evidence that she had the 2 August
agreements created at a print/copy centre, and that this was after a discussion with Ms
Samu, was not disputed.
[76] Evidence as to the indentations was set out in Ms Walker’s report, prepared for
and submitted as evidence in the High Court proceeding. In the course of the Tribunal
hearing, Mr Wain said that he was unaware of the evidence. Mr Dubedat did not refer
to it in his statement of evidence. Mr Wain submitted in closing that:
The High Court, which was not presented with the entire forensic analysis
conducted by the Police and, in particular, was not provided with the highly
relevant results of the indentation testing, found that the [2 August]
agreement was not authentic for reason relating to Ms Marr’s use of the
document.

 [77] He further submitted that:
… if the complete police handwriting expert report including the
indentation pages were not before the High Court, then the finding against
Ms Marr ought to be considered in that light.

[78] No evidence was provided to support Mr Wain’s submission that the High Court
“was not presented with the entire forensic analysis conducted by the Police”. Ms
Walker’s discussion of “indentations” was listed in the index on the first page of the
report, and set out in paragraph 4.6 of her report. There was no suggestion that any of
the paragraphs that preceded paragraph 4.6, or any of the paragraphs that followed
paragraph 4.6 on the same page (paragraphs 4.7, 4.8, and 4.9) were omitted. There are
no grounds on which we should consider the finding against Ms Marr in the light of
the “entire police handwriting expert report” not having been before the High Court.
[79] Further, we note Mr Mr Dubedat’s evidence that he was provided with Ms
Walker’s report and saw her evidence as to the indentations, but he did not make any
enquiries or ask for copies of them.
Production of the forged agreements
[80] Both Mr Sharfe and Mr Dubedat were asked to comment on their statement in
their joint memorandum that the “M J Guttenbeil” signatures on the auction
nomination provision, and the S5 agreement, were for all practical purposes replicas
of each other. They differed as to whether one was a copy of the other, or both copies
of a common original. Mr Sharfe maintained his opinion that the signature on S5 is a
machine copy of that on the auction nomination provision.
[81] Mr Dubedat was asked by Mr Wain to comment on whether the signature on the
S5 agreement was used to produce the signature on the auction nomination provision,
or vice versa. Other than to agree that the two signatures are replicas, Mr Dubedat
would not give an opinion either way.
[82] We are not required to decide the point, but it is not material in our consideration
of the authenticity of the Q1 and S5 agreements.

 Our conclusions
[83] Having read Ms Walker’s report and the statements of evidence of Mr Sharfe
and Mr Dubedat, and having heard the oral evidence given by Mr Sharfe and Mr
Dubedat, we are satisfied that the “M J Guttenbeil” signature on Schedule 2 of the Q1
agreement is forged. Having considered the evidence regarding the “MJG” initials,
we are satisfied on the balance of probabilities that they cannot be relied on as genuine.
[84] In the light of Ms Marr’s evidence that Ms Guttenbeil signed the originals of
both the Q1 and S5 agreements at the meeting on 2 August, we find that neither Q1
nor S5 is genuine. We reject Ms Marr’s assertion that the experts were wrong, and we
reject Mr Wain’s submission that the expert evidence cannot be regarded as
conclusive, and does not marry with the overall facts, or with any specific event that
occurred.
The charge
The 2 August agreements (Q1 and S5)
[85] As did his Honour Justice Faire, we have had the benefit of hearing oral evidence
from Ms Guttenbeil and Ms Marr. There is no basis on which we would reach a
different conclusion from his Honour.
[86] Ms Guttenbeil’s evidence is supported by the experts’ evidence (which we
accept) that the Q1 agreement was forged. It is also supported by Mr Phillips’ evidence
in the High Court: that there was no mention of a sale and purchase agreement having
been signed on 2 August when he discussed the 9 August agreement with Ms Marr
and Ms Guttenbeil on 12 August, and he did not become aware of the 2 August
agreement until the S5 agreement was emailed to him by Mr Atmore on 28 August.
[87] We reject Mr Wain’s submission that in cross-examination in the High Court,
Ms Guttenbeil “effectively admitted that the “M J Guttenbeil” signature on the Q1
agreement was her own”. It is clear from the transcript of her evidence in the High
Court that Ms Guttenbeil said only that the signature “could be” hers, but it belonged

 to another document, and was used to insert on the Q1 agreement. Ms Guttenbeil said
in the High Court, when asked a question in clarification:
Q
So, just so I, his Honour is clear, you are saying this signature could
be yours but it wasn’t made on the 2nd of August?
A
Yes ‘cos I didn’t sign an agreement on the 2nd of August. Because
like I’m saying, that page was taken out of a different agreement and
probably inserted in there that’s the only way how, only way I could have
that signature there and it was not related to this document at all because
like I said, I didn’t even know that existed ‘til after the property is sold to
Barry [Parkin].

[88] It cannot be inferred from the above exchange that Ms Guttenbeil “effectively
admitted” that she had signed the Q1 agreement on 2 August 2013.
[89] In the light of Ms Marr’s evidence that Ms Guttenbeil signed both the Q1 and
S5 agreements at the same time, we accept Ms Guttenbeil’s evidence that she did not
sign the S5 agreement on 2 August 2013, or at any other time.
[90] We do not consider there to be any reasonable possibility that unbeknown to Ms
Marr, some other person forged Ms Guttenbeil’s signature on the Q1 and S2
agreements.
[91] Ms Samu advised Ms Marr that a sale and purchase agreement from Ms
Guttenbeil to Keith and Charlotte Marr was essential for her to obtain funding. It was
in Ms Marr’s interest, and only hers, that an agreement for sale and purchase be
prepared and signed in order to meet that aim. Further, the 2 August agreement was
at all times in Ms Marr’s sole possession and control up until she emailed an electronic
version of the S5 agreement to Mr Atmore on 16 August. It was (on her evidence)
used to create the 9 August agreement by replacing two pages, converted back into the
2 August agreement by reinstating two pages, and subsequently altered by her
(including unilaterally inserting a “contemporaneous settlement” clause).
[92] We agree with Mr Waalkens’ submission that it cannot be determined who
committed the forgery of Ms Guttenbeil’s signature on the 2 August agreement.
However, we accept his submission that “Ms Marr was involved in one way or another
in the forgery”.

 [93] We therefore find on the balance of probabilities that the Committee has proved
particular (e) of the charge; namely that Ms Guttenbeil’s signature was forged onto the
2 August agreement.
The remaining particulars
[94] As to other particulars of the charge, we are satisfied on the balance of
probabilities that the Committee has proved that:
[a]

Ms Marr initially used Ms Guttenbeil as a front to hide the fact that she
was the purchaser of the property (particular (a)):
Despite Ms Marr’s evidence that she openly disclosed this fact, she did not
disclose it to the mortgagee, Linkloan, and there was no suggestion that
the auctioneer made an announcement at the start of the auction that the
owner was bidding. Had the auctioneer been told that Ms Guttenbeil was
bidding on behalf of the mortgagee, such an announcement would have
been made.

[b]

Ms Marr inserted “+/or nominee Barry Ian Parkins” into the auction sale
contract, but did not send it to the mortgagee’s agent (particular (c)):
Ms Marr’s evidence was that she instructed Ms Guttenbeil to make this
insertion. The fact that this was at Mr Parkin’s insistence (as part of his
“Plan B” to protect him in the event that Ms Marr could not complete the
purchase of the property) does not alter the fact that Ms Marr instructed
Ms Guttenbeil to insert the words. There was no dispute that the auction
nomination provision was not sent to the mortgagee or its agent.

[c]

Ms Marr used an Agency sale and purchase agreement in breach of the
Agency’s internal protocol (particular (b)):
Ms Marr’s evidence was that she took a blank Agency template form to a
print/copy centre, and had them print information on it in order to create
the 2 August agreement. Her evidence was that she handwrote information

 on a blank Agency agreement in order to create the 9 August agreement.
In each case, she used Agency resources to undertake a private sale. We
accept the evidence given by Ms Dovey (Regional General Manager of the
Agency) that any of their agents would have known that this was against
Agency protocols.
[d]

Ms Marr inserted a “contemporaneous settlement” clause to the 2 August
agreement (particular (f)):
Ms Marr’s evidence was that she amended the 2 August agreement by
inserting a “contemporaneous settlement” clause, and that she did so
unilaterally.

[e]

Ms Marr created a false sale and purchase agreement on 9 August, stating
a purchase price of $560,000 and a deposit of $125,000 (particular (g)):
Ms Marr’s evidence was that she created this sale and purchase agreement
by altering the 2 August agreement. Whether she did so at Ms Samu’s
suggestion does not alter the fact that she created the agreement, or that it
was false: the purchase price was not $560,000, and a deposit of $125,000
had not been paid.

[f]

Ms Marr had a caveat placed on the property before Mr Parkin could
settle the purchase, following his being nominated by Ms Guttenbeil
(particular (h)):
The caveat was founded on the S5 2 August agreement. In the light of our
finding that the “M J Guttenbeil” signature on S5 was a forgery, she could
not properly instruct her solicitor to lodge the caveat on the basis of the S5
agreement. Ms Marr used the forged S5 document to lodge a caveat.

Mr Barton and Mr Parkin
[95] Much of Ms Marr’s evidence, and the cross-examination of Mr Parkin, focussed
on her contention that Mr Barton, assisted by Mr Parkin, conceived and carried out a

 fraudulent scheme to deprive her of her family home and to enable Mr Parkin to
acquire it for himself. Mr Parkin was described as a “fraudster”.
[96] The Tribunal was advised of Mr Barton’s criminal convictions and the terms of
imprisonment imposed. They were not in issue. We cannot speculate as to Mr
Barton’s intentions or motives. However, regarding Mr Parkin, we note that:
[a]

Ms Marr accepted Mr Parkin’s “mortgage sale rescue”. She instructed Ms
Guttenbeil to add the auction nomination provision in order to meet Mr
Parkin’s need for a safeguard for himself, should Ms Marr not be able to
obtain sufficient funding to settle the auction sale contract entered into by
Ms Guttenbeil on her behalf.

[b]

Ms Marr was not able to secure funding, notwithstanding the efforts of Ms
Shepherd and Ms Samu and other brokers. No evidence was submitted to
the effect that Mr Barton or Mr Parkin interfered with those approaches.

[c]

While Ms Guttenbeil’s nomination of Mr Parkin to settle the auction sale
contract was at Mr Parkin’s invitation, she signed it on the advice of her
solicitor after Ms Marr had failed to obtain funding, and when Ms
Guttenbeil was faced with having to settle the contract (which she was not
in a position to do).

[d]

The Tribunal is not persuaded that there was anything untoward in Mr
Parkin requiring conditions (including a nomination provision in his
favour) on his agreement to pay the deposit on the auction contract, or in
subsequently entering into a nomination agreement with Ms Guttenbeil.

[97] Further, the focus of this proceeding is on Ms Marr’s conduct. Her evidence was
that she created the 2 August agreements, and that Ms Guttenbeil signed two originals
of it. Whatever Mr Barton and/or Mr Parkin may have intended, or done (and we were
not required to, and do not, make any finding as to that), it is not relevant to the
Tribunal’s decision as to whether it accepts the evidence adduced by the Committee
in support of the charges.

 Should Ms Marr be found guilty of disgraceful conduct?
[98] Disgraceful conduct is, as set out in s 73(a) of the Act, conduct which:
Would reasonably be regarded by agents of good standing, or reasonable
members of the public, as disgraceful;

[99] As the Tribunal said in Complaints Assessment Committee 10024 v Downtown
Apartments Ltd (In Liq):18
“The word disgraceful is in no sense a term of art. In accordance with the
usual rules it is to be given its natural and popular meaning in the ordinary
sense of the word.”

[100] In considering the charge against Ms Marr, the Tribunal refers to the discussion
of disgraceful conduct in the judgment of his Honour Justice Woodhouse in MortonJones v Real Estate Agents Authority; in particular, his Honour’s discussion of s 73(a)
of the Act.19 His Honour said:20
… If the charge is under s 73(a) the critical enquiry is whether the conduct
is “disgraceful”. Conduct which involves a marked and serious departure
from the requisite standards must be assessed as “disgraceful”, rather than
some other form of misconduct which may also involve a marked and
serious departure from the standards. The point is more than one of
semantics because s 73 refers to more than one type of misconduct. In
particular, s 73(b) refers to “seriously incompetent or negligent real estate
agency work”. Work of that nature would also involve a marked and
serious departure from particular standards; the standards to to which s
73(b) is directed are those relating to competence and care in conducting
real estate work.

[101] Thus, conduct charged against a licensee under s 73(a) may be found to be
disgraceful (whether or not it is in the course of, or related to, real estate agency work)
if it meets the ordinary meaning of “disgraceful”, that is whether the licensee’s conduct
would reasonably be regarded by agents of good standing or reasonable members of
the public as disgraceful. When determining whether conduct was of that nature, the
Tribunal takes into consideration the standards that an agent of good standing should
aspire to, including any special knowledge, skill, training or experience such person

18

19
20

Complaints Assessment Committee 10024 v Downtown Apartments Ltd (In Liq) [2010]
NZREADT 6, at [55].
Morton-Jones v Real Estate Agents Authority [2016] NZHC 1804.
At [29].

 may have. The standard of proof required before the Tribunal can find a charge under
s 73(a) proved is the balance of probabilities.21
[102] It is important not to conflate the two separate issues of liability (whether the
conduct was disgraceful) and penalty (the consequences of a finding that conduct was
disgraceful), which must be considered in dealing with a charge under s 73(a). The
proper approach is that the Tribunal must:
[a]

first consider whether the licensee’s conduct was disgraceful, then

[b]

secondly, if such a finding is made, consider whether the found conduct
affects the licensee’s fitness to hold a licence (see s 36(1)(c) of the Act and
(for example) the Tribunal’s decision in Revill v Registrar).22 This enquiry
is properly undertaken at the penalty stage.

[103] On the evidence before us, we find that Ms Marr’s conduct, as found above,
would reasonably be regarded by agents of good standing, or reasonable members of
the public, as disgraceful.
Result
[104] We find that the Committee has proved the charge against Ms Marr. We find
her guilty of misconduct under s 73(a) (disgraceful conduct) of the Act.
[105] The Tribunal assumes that an oral hearing should be scheduled for hearing
submissions as to penalty, rather than considering penalty on the papers. Counsel are
to confer and advise the Tribunal’s Case Officer as to whether and/or when a hearing
is sought, and to suggest appropriate timetable directions for filing written
submissions. In the event that an oral hearing is not sought, counsel are to confer and
advise the Case Officer as to appropriate timetable directions.

21
22

Pursuant to s 110(1) of the Act.
Revill v Registrar [2011] NZREADT 41.

 [106] Pursuant to s 113 of the Act, the Tribunal draws the parties’ attention to s 116 of
the Act, which sets out the right of appeal to the High Court. The procedure to be
followed is set out in part 20 of the High Court Rules.

_________________
Hon P J Andrews
Chairperson

_________________
Mr G Denley
Member

__________________
Mr N O’Connor
Member

[2019] NZREADT 8 - Marr