Individual Agents working as salespersons are not major companies or corporations. They are merely a one man band (or woman band) business operators who do not earn the fees the companies charge the sellers of homes. Individual Salespersons are mostly aged from 30 and older (but can be younger) who are contracted to Licenced Real Estate Agencies to earn commissions on sales they make to prospective buyers. The Agent is not given a listing to work, they have to prospect for it themselves.

Agents can be mothers, fathers providing for a family or just about anyone else in society. Agents devote a lot of cost, commitment and lost family time trying to make a better income for themselves and their families. They pay their own provisional tax, GST, ACC, and expenses that include educational costs, licensing fees, cars, electronic business equipment, insurance, accountancy fees and anything else that is required to be in business. They work after hours and weekends. They pay their own medical insurance. Their income is not secured. There is no sick pay, holiday pay or redundancy. They are classified as contractors and have very little protection under normal employment law.

The price of overturning an unjustified CAC decision or a Complainants review of a “no case to answer CAC determination” can cost the agents and their families between $5,000 and $20,000 to have the matter reconsidered by the Tribunal. These costs should not be borne by the Agent if the Agent is blameless or if the charge is not proven to the balance of probability.

In addition to the direct financial cost of mounting a tribunal defence there is huge emotional harm to agents waiting in some cases well over a year for what the law considers a fair and just process. Agents endure huge financial losses with their minds are preoccupied contemplating meritless complaints and CAC decisions which are offensive to common-sense and a reasonable consent of fairness.

“We observe that if we had wide discretionary powers in awarding costs against a party (as is usual in our civil courts), which we are currently seeking from Parliament, we would probably have used that power to award costs against the appellant in this case”.