IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY

I TE KOTI MATUA O AOTEAROA
TA.MAKI MAKAURAU ROHE
CIV-2018-404-001921
[2019) NZHC 1839

BETWEEN

GEOFFREY MAIRS
Appellant

AND

COMPLAINTS ASSESSMENT
COMMITTEE 413
Respondent

Hearing:

7 May 2019

Appearances:

A Hart for the Appellant
J D Simpson for the Respondent

Judgment:

31July2019

JUDGMENT OF HINTON J

This judgment was delivered by me on 31 July 2019 at 2.30 pm
pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Hart & Associates, Auckland
Meredith Connell, Auckland

MAIRS v COMPLAINTS ASSESSMENT COMMITTEE 413 [20 I 9] NZHC 1839 [31 July 2019]

 [1]

Mr Mairs was a licensed salesperson under the Real Estate Agents Act 2008

(the Act). He was found guilty of one charge of disgraceful conduct by the Real Estate
Agents Disciplinary Tribunal (the Tribunal). 1 Mr Mairs was found to have taken the
keys to a client's property, stayed in the property overnight without permission, and
given a false explanation to a member of the public and to the Police when discovered
the next morning.
[2]

The Tribunal determined to cancel Mr Mairs' licence in a subsequent decision

on penalty. 2 The Tribunal considered this to be the only appropriate outcome given
the duration of the unauthorised intrusion into the property, his dishonesty on being
apprehended, his lack of insight into the seriousness of the situation that he brought
about, and Mr Mairs' conduct when dealing with the disciplinary investigation.
[3]

Mr Mairs now appeals the Tribunal's determination, on penalty only. He says

that instead of his licence being cancelled, he should have been suspended for a period,
with directions for assessment (and treatment if necessary) as to rehabilitative needs.
Background
Misconduct decision

[4]

Mr Mairs held a salesperson's licence under the Act. At all material times he

was employed by Bayleys Real Estate Limited.

Another Bayleys salesperson,

David Anderson, was responsible for a property listed with Bayleys at 4/2 Atkin
Avenue, Mission Bay, to which the charge of disgraceful conduct relates. The property
was vacant, as the owners lived overseas, but it contained staged furniture for
marketing purposes.
[5]

On the night of 27 February 2017, Mr Mairs had been evicted from his home.

He had contacted Mr Anderson by telephone, to ask for a place to stay. The Tribunal
accepted Mr Anderson's evidence that he declined to give Mr Mairs a place to stay,
and that Mr Mairs in a later phone call asked him about the Atkins Avenue property

2

Complaints Assessment Committee 413 v Mairs [2018) NZREADT 9 [misconduct decision].
Complaints Assessment Committee 413 v Mairs [2018) NZREADT 41 [penalty decision].

 and said he had a buyer to show through. Mr Anderson told him where the keys were
located on his desk at Bayleys' offices.
[6]

Mr Mairs then travelled to Bayleys' offices at Auckland CBD. Security logs

showed that Mr Mairs accessed the secure area at Bayleys' offices, where
Mr Anderson's desk was located, at 8.13 pm. The Tribunal found that he took the
property key from Mr Anderson's desk.
[7]

Mr Mairs then went to the Atkin Avenue property. He stayed there overnight,

sleeping on an inflatable mattress (part of the staged bed).
[8]

Mr Mairs was discovered the following morning by Mrs Court, whose son

owned the property. He was using the shower at the time she arrived. Mrs Court went
outside and contacted Bayleys.
[9]

When Mr Mairs came outside the property, Mrs Court approached him.

Mr Mairs said that he was "working for David" and was showing someone around the
property that morning. After a short discussion, Mrs Court called the Police. Mr Mairs
gathered his belongings, put the keys on a nearby wall and left.
[1 O]

He was found by the Police outside the Mission Bay cinema. He repeated that

he was there to show someone around the property and had taken the keys from
"Dave's desk". The Police contacted Mr Anderson, who confirmed that Mr Mairs
should not have been at the property without a buyer. Mr Mairs was then arrested for
being unlawfully on the property.
[11]

When found by Mrs Court and when dealing with the Police, Mr Mairs had

sent a number of text messages to Mr Anderson. These messages variously referred
to the parents being there, his hiding in the bathroom, asking Mr Anderson what to do,
and giving the same explanation about showing a buyer through.

Mr Anderson

messaged back asking what Mr Mairs was talking about.
[12]

The Tribunal considered that in these messages, Mr Mairs was in a state of

panic and was asking Mr Anderson to corroborate a false explanation. The Tribunal

 said the messages showed a clear appreciation that he ought not to have been in the
property.
[13]

The primary issue for the Tribunal was how Mr Mairs gained access to the

property and why. Mr Mairs did not dispute staying at the property, his actions when
found by Mrs Court the next morning, or that his explanation about having a buyer to
show through was false. His evidence at the hearing was that, when he contacted
Mr Anderson for a place to stay, Mr Anderson collected him from Bayleys' offices and
took him to the property. His evidence was that Mr Anderson deceived him into
believing he had authority to let him stay. He denied knowing that the property was a
listed property for sale until Mrs Court arrived the next day.
[14]

The Tribunal rejected this account as false, and found that Mr Mairs accessed

the property without Mr Anderson's knowledge or assistance.

The reasons for

rejecting Mr Mairs' account are set out in the misconduct decision. The Tribunal
placed particular weight on:
(a)

Mr Mairs' evidence being quite different from the explanation he gave
Mrs Court and the Police when arrested, and inconsistent with the text
messages that he sent to Mr Anderson when discovered.

(b)

The fact Mr Mairs had the opportunity to acqmre the keys from
Bayleys' office.

(c)

The improbability of Mr Mairs' version of events, particularly his
explanation that he lied on the day to protect Mr Anderson. Nor was it
plausible that Mr Anderson would have assisted him in the way that he
claimed.

[15]

On the facts as found, the Tribunal found that Mr Mairs' conduct amounted to

disgraceful conduct. I quote from their determination:
[IO 1] In our judgment, a reasonable agent of good standing or a reasonable
member of the public would agree that the conduct of the agent in this case
was disgraceful. Conduct of this kind is erosive of public confidence in real
estate agents. Further, conduct of this kind is contrmy to the objective of the

 Act, namely the protection of those who seek the services of licensed real
estate agents. Members of the public who deal with real estate agents are
entitled to expect that they will carry out their functions with honesty and
integrity. When members of the public provide agents with the means of
accessing their properties, they are entitled to assume that agents will not
misuse the trust that has been reposed in them. They will expect that the
security of their properties will not be put at risk.
[I 02] The actions of Mr Mairs in this case plainly violated these
requirements. He lied to those he was dealing with. He took advantage of the
means of access to the property for his private advantage and in a way which
was plainly unauthorised. This was serious misconduct which in our view
would be regarded by reasonable agents of good standing, and members of the
public, as being disgraceful. For those reasons we find that the charge brought
against Mr Mairs is established.

Penalty decision

[16]

In a subsequent decision following a hearing on penalty, the Tribunal

determined to cancel Mr Mairs' salesperson licence.
[17]

The Tribunal took the entire course of Mr Mairs' conduct into account, as it is

entitled to do on penalty. In Daniels v Complaints Committee 2 of the Wellington
District Law Society, the High Court said: 3
[30]
If a practitioner engaged, for example, in disreputable correspondence
with a complaints committee or disciplinary tribunal, or conducted himself in
a belligerent way in which he responded to legitimate complaints made to a
Law Society Complaints committee, a tribunal may take a dim or adverse view
of his overall behaviour. The practitioner cannot expect that to be a factor that
is ignored in the exercise of the tribunal's power. That is because character good or bad - may be very relevant when sanctions or penalties may come to
be imposed.

[18]

The Tribunal held the following matters to be of importance:
(a)

The extent of Mr Mairs' unauthorised intrusion into the property. He
stayed overnight and used the bed and bathroom.

(b)

Mr Mairs' dishonesty on being apprehended, namely the false
explanation to Mrs Court and to the Police that he was there to meet a
buyer.

Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR
850 (HC) at [30].

 (c)

Mr Mairs' lack of insight into the seriousness of the situation,
particularly his continued denial of any lack of authority for being in
the property, and lack of candour in dealing with a member of the
public, the Police and investigators for the Real Estate Agents
Authority.

(d)

The objectionable manner in which Mr Mairs comported himself when
dealing with the Authority investigators. He invoked threats of legal
action and used insulting language.

[19]

The Tribunal adopted a starting point of cancellation, saying that the need to

protect the public and ensure compliance by licensees required a penalty which
demonstrated the seriousness with which the charge should be regarded.
[20]

The Tribunal said Mr Mairs declined to provide any information that would be

relevant to the sentencing. They said had he presented an exceptional case in which
rehabilitation was a realistic possibility, it may have been incumbent on the Tribunal
to consider suspension, but they were unable to discern any grounds upon which
suspension could be regarded as a realistic option. The Tribunal ordered cancellation
on the basis that Mr Mairs was "simply unsuitable to be a person licensed under the
Act to sell real estate".
Approach to appeals against penalty in the disciplinary context

[21]

There is uncertainty as to whether appeals against penalty in a disciplinary

context should be categorised as general appeals on Austin Nichols principles, or as
appeals against a discretion, where the criteria are harder to meet. 4 In Morton-Jones
v Real Estate Agents Authority, 5 Woodhouse J held that appeals against penalty
decisions under the Act proceed as appeals against the exercise of a discretion, without
giving the point express consideration. However, a number of decisions under the
Lawyers and Conveyancers Act 2006 (including decisions of a Full Bench), 6 and in
4
5
6

Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Morton-Jones v Real Estate Agents Authority [2016] NZHC 1804.
Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83, [2013]
3 NZLR 103 at [12]; Sisson v Standards Committee 2 of the Canterbu,y-Westland Branch of the
New Zealand Law Society [2013] NZHC 349, [2013] NZAR 416 at [14].

 the health practitioners' context, have held that appeals against penalty should proceed
as general appeals. In Drever, 7 a case involving a real estate agent, I indicated a
preference for the latter approach, but, as in Morton-Jones, the point was not argued
before me. The Committee had agreed that the case should proceed on the basis of a
general appeal.
[22]

In this case, as in Drever, the Committee has agreed that I should proceed as if

it were a general appeal. Mr Simpson nonetheless made submissions on the point, but
I have decided I should not consider the matter further as Mr Hart relied on the consent
position, and did not advance submissions as to the correct approach.
[23]

I therefore proceed as if this were a general appeal. I agree with Mr Simpson,

for the Committee, that in the majority of cases, the outcome will be the same.
[24]

For the test applicable on general appeals, I rely on the following passage from

the Supreme Court decision in Kacem v Bashir: 8
... for the present purposes, the important point arising from Austin Nichols is
that those exercising general rights of appeal are entitled to judgment in
accordance with the opinion of the appellate court, even where that opinion
involves an assessment of fact and degree and entails a value judgment. In
this context a general appeal is to be distinguished from an appeal against a
decision made in exercise of a discretion. In that kind of case the criteria for
a successful appeal are stricter: ( 1) error of law or principle; (2) taking account
of irrelevant considerations; (3) failing to take account of a relevant
consideration; or (4) the decision is plainly wrong.

Grounds of appeal

[25]

Mr Mairs says that a penalty less than cancellation should have been imposed.

Cancellation is at the highest end of the available penalty range, followed by
suspension of not more than 24 months. As noted earlier, Mr Mairs says he should
have been suspended instead.
[26]

First, he alleges that the Tribunal did not have regard to personal mitigating

factors, namely the financial and personal stress that he was suffering at the time, his

Drever v Complaints Assessment Committee 403 [2017] NZHC 2213 at [20].
Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR I at [32].

 reliance on alcohol as a coping mechanism, and health issues, including a sleep
disorder requiring a breathing machine that meant he had to have access to a power
supply, which would not have been available to him had he not stayed at Atkin Avenue.
Mr Mairs says the Tribunal accordingly did not give adequate weight to his
rehabilitative prospects.
[27]

Second, he alleges that the penalty of cancellation is out of line with prior

authority and the nature of his conduct.
Personal mitigating factors

[28]

As to the first point, it is correct that the Tribunal did not have regard to these

personal factors. In fact, it seems Mr Mairs declined to provide the Tribunal with any
submission in mitigation.
[29]

The Committee accepts, and I have to on all of the evidence, that at least some

of the personal factors to which Mr Mairs refers were likely to be present, to some
degree. The Tribunal will have been aware of some of them from the evidence led in
respect of the charge. Clearly Mr Mairs was under stress at the time.
[30]

However, personal mitigating factors such as those relied on carry reduced

weight in a professional disciplinary process like this one, because the primary focus
in such proceedings is on protection of the public and the reputation of the profession
as a whole, rather than on the individual licensee. The primary objective is not to
punish, though a penalty will have that effect. The primary objective is general
deterrence and imposing a penalty that serves to maintain the standards of the
profession. 9 Taking a more lenient approach to a finding of serious misconduct, on
the basis advanced by Mr Mairs, is not consistent with those objectives.
[31]

Nonetheless, as the Tribunal itself intimated in the penalty decision, if, taking

account of those personal stress factors and subsequent remedial actions, the Tribunal
could reach a conclusion of likely rehabilitation, or of a one-off situation, then there
could have been consideration of a lesser penalty.

9

Auckland Standards Committee 2 v Parshotam [2016] NZLCDT 15 at [58].

 [32]

By implication, the Tribunal could not discern any grounds on which

rehabilitation and therefore suspension was a realistic option. 10 I agree. This was not
just a case of great stress leading to bizarre one-off behaviour. It involved prolonged
untrustworthy and erratic behaviour, which lasted for some 16 months after the
February 2017 events, as the Tribunal detailed. Mr Mairs was still maintaining at the
Tribunal hearings that Mr Anderson deceived him into believing he had authority to
let him stay in the house. The Tribunal found that was false, and it was clearly so, just
simply on the basis of his own conduct the next morning.
[33]

I can see nothing that points to likely rehabilitation. Mr Mairs' counsel points

to Mr Mairs having allegedly checked himself into a "detox unit" and having allegedly
not drunk alcohol for 12 months. There is no proof of these things. In any event, they
do not overcome the repeated dishonesty or lack of insight into what is right and wrong
conduct for an agent. This is simply not a case where the way Mr Mairs has responded
to the charge could lead me to the view there would be no repeat misconduct - to the
contrary.
[34]

For the above reasons, I do not consider that the personal stress factors even if

they had been expressly put to the Tribunal, would have made any material difference
to penalty.
Not in line with authority

[35]

The appellant submits that the cancellation penalty was out of line with prior

authority, given that his dishonesty did not relate to the handling of money, was
impulsive rather than premeditated, and caused no loss to the vendors.
[36]

There does not seem to be any previous determination of the Tribunal which

involves comparable facts, but that is not uncommon with disciplinary proceedings.
[3 7]

I agree that there is not dishonesty here of the worst sort, as in cases where

there is fraud and/or material loss to a vendor. In Morton-Jones, for example, (where
the agent's licence was cancelled), there was dishonesty in the handling of money.

IO

Penalty Decision at [ 15].

 [38]

However, as the Tribunal said in Complaints Assessment Committee v Gollins:

"dishonesty ofany type is met with the highest degree of disapprobation by registration
bodies and by members of the public who must retain confidence in the honesty and
integrity of agents". 11
[39]

I agree with the Committee that there is not much difference between misusing

client funds, and misusing a client's property. Both involve a breach of the trust and
confidence that a client has reposed in an agent. A client would not wish to deal with
an agent they knew had slept in another client's listed staged property without
permission. It flies in the face of what is expected from an agent.
[40]

Nonetheless, had that been as far as the matter went, then it may well be that

cancellation would have been too severe. But for all the reasons that the Tribunal sets
out, I agree that cancellation was appropriate here. I do not consider any lesser penalty
would have been adequate.
[41]

In summary, on the facts as found, Mr Mairs deliberately took the keys to a

client's property without authorisation, remained in the property overnight, and gave
a false explanation to the owner's mother and to the Police the next morning. He
attempted, unsuccessfully, to have another licensee corroborate his false account. He
later maintained a different account in a disciplinary investigation and misconduct
hearing, which was found to be untruthful. During that process, his conduct was
unprofessional and abrasive. To date, he has not demonstrated any true insight into
his conduct.
Conclusion

[42]

I therefore agree with the Tribunal that the totality of Mr Mairs' conduct does

demonstrate that he is not a fit and proper person to hold a licence under the Act and
that the penalty of cancellation was correct.
[43]

11

The appeal is therefore dismissed.

Complaints Assessment Committee v Gollins [2015) NZREADT 2 at [42) (emphasis added).

 Costs

[44]

I am advised that Mr Mairs is legally aided. The Committee has nonetheless

reserved its position on seeking costs and so I reserve the matter of costs in the event
the Committee considers there is some basis on which it can make an application. Any
such application would have to be made within 14 days.

.

""7

Hinton J