An Auckland real estate agent, who used his phone to photograph a lawyer's document revealing a buyer's pricing information, has been found guilty of disgraceful conduct.
John (Xiaojiu) Zhang of Barfoot & Thompson was fined $2000 by the Real Estate Agents Disciplinary Tribunal for his actions in negotiating the sale of 62 Sprott Rd, Kohimarama.
Zhang, the property's listing agent, had met lawyer John Appleby, representing a trust making an offer for the property, the tribunal heard.
When Appleby left the room at his home where the meeting was taking place to find a ruler, he put a file on the floor beside a coffee table but when he returned, Zhang had moved across a couch and stood up to take a photograph of an email on the file.
Appleby immediately asked Zhang to delete the photograph which the agent did.
But Appleby complained to authorities that the document had contained the price the trustees wished to offer.
The tribunal heard how Zhang's actions of taking the picture when Appleby left the room was "deceitful".
The lawyer had not expected the agent to photograph the file. Zhang had knowingly copied a document which he was not entitled to see, the tribunal heard.
However the agent outlined a different series of events.
"He said that English was his second language and he was not able to read Mr Appleby's writing as to the additional terms. He said he was embarrassed to ask him to explain the terms again and so decided to simply take a photograph of the email, which he believed contained only the information about the additional clauses for future reference. He provided a reference from his employer which said that he frequently took shots of information to study later," the tribunal heard.
Zhang's lawyer told the tribunal the action was sudden and implusive and only to record the terms of the clauses that he believed were in the document.
I think the penalty could have been tougher. Not only did he do the deed but he then tried unsuccessfully to explain it away with an unbelievable explanation.Lawyer John Appleby
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"Zhang's intention was only to obtain a copy of these clauses so that he could later explain them to the vendor and there was nothing sinister or secretive in the conduct," the tribunal heard.
The fact that Zhang received no commercial advantage did not detract from the seriousness of the conduct, the tribunal decided.
"The impulsiveness of the gesture can be recognised in the penalty. For these reasons we find that the charge has been established at the level of misconduct and is disgraceful conduct," the tribunal said.
Appleby said this week he was disappointed about the outcome.
"I think the penalty could have been tougher. Not only did he do the deed but he then tried unsuccessfully to explain it away with an unbelievable explanation.
"I consider his behaviour extremely offensive in that while in my home, he photographed my client's file in my absence," Appleby said.