Complaints Assessment Committee 304 v Chapman

Complaints Assessment Committee 304 v Chapman [2018] NZREADT 6 (19 March 2018).pdf
Geographical Area
New Zealand
Case Name
Complaints Assessment Committee 304 v Chapman
Case Reference
[2018] NZREADT 6
Name of Court
Real Estate Agents Disciplinary Tribunal of New Zealand
Key Facts
Following the 7.1 magnitude earthquake which struck Canterbury on 4 September 2010, a devastating 6.3 magnitude aftershock struck close to the city of Christchurch on 22 February 2011. This aftershock caused widespread damage to property and the deaths of 185 people, 40 of which died when hit by rubble falling from buildings into the street, including Matthew McEachen who was hit by masonry while fleeing the building occupied by his work, Southern Ink.

As no criminal charges were laid and New Zealand’s compulsory insurance for personal injury, the Accident Compensation Corporation, prevents people from suing for personal injury, the family of McEachen brought proceedings against the commercial property manager, Chapman, under s.73(a) of the Real Estate Agent Act 2008. On 30 September 2010, a structural assessment sent to Chapman deemed the building unsafe to use; however, he only notified the owners of this, not the tenants. The family claimed that his failure to notify the tenants amounted to misconduct under s.73(a).
Decision and Reasoning
The Tribunal considered whether industry standards required commercial property managers to disclose information regarding the safety of a property to tenants. Taking in the context of the aftermath of an earthquake, they held that the relevant industry standard required a competent commercial property manager to: i) provide reports which identify a particular issue regarding the safety of a property to any affected person where they are supported by evidence and appropriate analysis; ii) where the report contains no evidence they must make enquiries with the author urgently so to not delay them providing this information to the affected persons; iii) take steps to ensure they are aware of the sticker status; and, where issues of health and safety are concerned, to disclose these to tenants even if the approval of the owners is not sought, or is sought and not granted.

The Tribunal held that Chapman failed to meet industry standards in that he was aware there was significant damage to the walls of the Southern Ink tenancy and these must be repaired before resumption of occupancy, he did not pass on this information to the tenants and did not clarify the sticker status. However, under s.73(a) Chapman could only be guilty of misconduct where his conduct would reasonably be regarded by agents of good standing or reasonable members of the public, as disgraceful. Considering the ordinary meaning of disgraceful, the Tribunal was unable to conclude that an agent of good standing or a reasonable member of the public would regard Chapman’s conduct as disgraceful. Therefore, they held there was no misconduct on Chapman’s behalf.
The Court found that Chapman’s actions did not amount to misconduct under s.73(a). The decision was not appealed.
This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.