Estate agent fights forgery charge
A real estate agent fighting charges of misconduct has told a court it was an incompetent colleague rather than him who forged a solicitor's signature on a property settlement document.
Delawer Kumandan is appealing a Real Estate Agents Authority decision, dating from April, at the High Court in Auckland today. That decision found him guilty of misconduct.
The REAA tribunal also cancelled his real estate licence, a decision he is also attempting to have reversed by the High Court.
In August, he lost an application to the court to keep working prior to this appeal.
Kumandan, an agent at Harcourts Howick, Auckland, until September 2009, said the REAA "got it wrong" when it found him guilty of misconduct and failed to act in good faith.
Representing himself, he told Justice Sarah Katz that "the tribunal failed to uphold the law and principles of natural justice to find the guilty party in this matter".
The court heard in August that a complaint was made by agency director David Clifton alleging staff at the Howick office found a "confirmation of settlement" document faxed with a small piece of paper taped to it bearing a solicitor's signature.
Another director, Graham Viall, testified at the tribunal hearing that Kumandan had admitted the forgery in a meeting with him. But today the accused argued staff had testified that he had nodded his head.
He denies admitting anything and said he had no motive to do any such thing as he had been paid his $8000 commission prior to the alleged offending.
He said the tribunal refused to allow certain questioning of the office's former administrator during his tribunal hearing which would likely have vindicated him.
The administrator's motive was that she had been given notice for incompetence and was inundated with incomplete files that needed to be sorted out and closed before she left.
"I've got a legal background. I'd be the least likely suspect," he said. "I was a top salesman, there'd be no benefit for me financial or otherwise... the tribunal erred."
Kumandan also said the tribunal went beyond its power when it cancelled his licence and that it had made up its mind before the hearing.
"The tribunal (erred) in its overzealousness to make an example of me," he said.
"At the end of the day, it was preordained that the licence would go.
The maximum fine of $750 would have been sufficient, he said. REAA lawyer Luke Clancy submitted that Kumandan had already put the theory of another guilty party to the tribunal and had cross-examined the administrator and other staff.
Clancy said while the tribunal conceded there was some inconsistency with some of the administrator's evidence, it did still arrive at a guilty finding.
As to Kumandan denying any admission regarding the forgery, Clancy said Clifton's evidence to the tribunal was that he was upset when the forgery accusation was put to him.
"He was almost overwhelmed, he had tears in his eyes, he did give an admission, he nodded his head vertically very clearly," Clancy said.
Clifton left that meeting and returned to the room.
"Mr Clifton asked him what he'd done."
Clancy said there was again the "explicit acceptance of wrongdoing".
"That was a cogent, powerful piece of evidence."
Justice Katz reserved her decision.