Auckland real estate agent Don Ha has failed to have an unsatisfactory conduct ruling against him overturned after he appealed a Real Estate Authority case first to a tribunal then to a court.

Duong Hai Ha of Re/Max is described on his agency's web site as "one of New Zealand's leading property sales gurus" but the Real Estate Authority found against him after the vendor of a property near Pukekohe had to pay two commissions.

That vendor, David Griffiths, paid Ha's agency a commission as well as half of the commission of rival agency Professionals Real Estate which when Ha sold the property, still had a sole agency agreement over it, giving it the right to claim a commission.

The authority found against Ha on November 9, 2017 so he went to the tribunal which upheld the complaint on October 23 last year.


Unhappy with that, he then turned to the court which has again rejected his appeal.

Justice Tracey Walker in the High Court at Auckland rejected his case, saying he was guilty of unsatisfactory conduct for the way he dealt with the sale.

The case dates back to 2012 when David Griffiths engaged Professionals to sell a property he owned near Pukekohe, signing a six-month sole agency agreement.

Ha approached Griffiths saying he had a buyer, the court decision said. Ha assured Griffiths that a sole agency on residential property could only last 90 days and to check that with the Real Estate Authority in Wellington.

A conditional sale was struck with Ha for $990,000 but that fell through. With five days still to run on Professionals' sole agency, an unconditional offer of $750,000 was made via Ha's agency Top One Real Estate.

That deal went ahead and Griffiths paid Ha $35,000 commission but Professionals claimed a further $32,142.50 commission and instigated District Court proceedings againt Griffiths to enforce its right.

Griffiths paid Professionals $16,500 extra commission and complained to the Law Society and the authority.

Griffiths said he should not have had to pay two separate commissions and lawyers' fees after Ha advised him he was entitled to cancel Professionals' sole agency.

Ha claimed that Griffiths' property was residential so the sole agency expired. The authority's complaints assessment committee found that Ha had failed to clearly explain to Griffiths that he could be liable to pay a full commission to more than one agent on the sale.


The committee ordered Ha to refund Griffiths $16,500 which was the second commission he had to pay Professionals, undergo training or education and pay the authority $2500.

Ha appealed that authority decision to the tribunal which upheld the original ruling. Ha had "oversimplified" the issues involved, the tribunal found, and not complied with the act.

At the tribunal, Ha's primary ground of appeal was whether he was correct that the property was residential. But the tribunal found Ha had spoken to Griffith about the property's sale "without recommending that Mr Griffiths seek legal advice or otherwise advising of the potential for double commission".

In the High Court, barrister Simon Judd for Ha argued that the authority's investigator should have asked Ha pointed questions such as "what did you say to Mr Griffiths about the risk of double commission?" or "did you discuss with Mr Griffiths that if he has more than one agency agreement, there is a risk of double commission?"

Judd argued that it was more probable than not that Ha did in fact give the advice required under the act. Ha had insisted on termination of the prior agreement with the Professionals, Judd told the court.

But the judge's decision concurred with the tribunal's findings and the unsatisfactory conduct finding stood: "I, therefore, dismiss the appeal."

Judd said today he had no further instructions on whether the decision would be appealed.

A spokesperson for Ha said he was overseas and no comment would be issued.

A comment was also sought from Re/max head office but the Herald was told managing director Michael Davoren was in India.