Real estate agent backdated software, 'did not act honestly', fined $6000, censured

Four separate findings of unsatisfactory conduct proved against the agent. Photo / file

A real estate agent has been fined $6000 and censured for unsatisfactory conduct after backdating software to support false and misleading statements about contacting prospective buyers.

A Real Estate Authority complaints assessment committee made four separate findings of unsatisfactory conduct against the agent, subject of a successful complaint from an unnamed person.

Brett Phillip Smith of Arizto in Tauranga was engaged to sell a house last March. The complainant texted him to ask why he had not contacted the people who attended an open home at the place.

"[He] backdated information in the agency back-office software to make it look like he had contacted all of the open home attendees prior to the complainant's text," the committee said of the complainant's statement.

Backdating that information made it look like he had contacted all the attendees on March 20 last year yet he had not contacted some people till March 22.

He further "provided false and misleading advice when he told the purchasers he had spoken to the complainant about rotten weatherboards when he had not". He also "failed to advise prospective purchasers an offer had been made and failed to follow the complainant's instructions for a counter-offer."

But Smith said the dates were a mistake and there was "absolutely no intention to mislead". Smith did not respond to the complaint about communication or a misleading rental appraisal complaint.

The committee found Smith had advised the trustee purchaser he had spoken to the complainant about rotten weatherboards when he had not, failed to advise prospective buyers an offer had been made and failed to follow the complainant's instruction for a counter-offer.

The decision said honesty and good faith were central to the duty between agents and clients.

"The licensee significantly breached his fiduciary duty and the rules when he made deliberately false statements to the complainant and to the purchasers of the property," it said.

Pernell Callaghan, a director of Arizto, told the Herald today: "The information was not backdated. We don't have the ability to do that. There was miscommunication but it was nothing to do with the software."

Callaghan told the committee that Smith was one of the highest independently rated agents in the country but that both the agency and Smith could do better.

Smith had done more training and workshops, Callaghan said. The sale price achieved on the property at the centre of the complaint was premium, he said. The commission paid by the complainant had already been heavily reduced to $5000 and was only refunded for serious misconduct, he said.

Callaghan told the committee Smith was prepared to provide a written apology, any fine should be low because the conduct was at the lower end of severity and the decision should be suppressed.

Callaghan asked the authority not to publish it. But the committee disagreed and said it should be published but without the names or identifying details of the complainant or the address of the property.

Smith's name and Arizto's should be published, the committee decided.

Callaghan told the Herald today the fine was high compared to other similar offending and Arizto was disappointed with the outcome of the case.

"But, at the end of the day, the REA is there to make that decision and they're going to take a middle ground for both parties and we learn from it," Callaghan said.

No appeal was planned "even though we'd have a good chance, but it's time-consuming". Smith remained at Arizto and Callaghan said he had faith in him as an agent.

The complainant called Arizto and Smith "liars, cheats and dishonest", which Callaghan objected to today: "It was pretty rough. I had not lied or cheated."