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                                     DECISION

                               Meeting 14 July 2009

Complaint 09/337

                      Complainant: K. Mummery
                      Advertisement: Browns Bay Rental Property / S. Ross

Complaint: The advertisement in the “To Let” Classified Advertising section of the
Northshore Times proceeded as follows: “BROWNS BAY 2bdrms. Close to
beaches, shops. HRV system. $300pw. Ph … or 021 ….”

Complainant, K. Mummery, said:

“I went with my daughter and her partner to look at a place to let that was advertised
as a two bedroom place. When we got there to my amazement it was a one
bedroom. When I questioned this, the lady … told me that the lounge was big enough
to use a bedroom/lounge. This lady was clearly asking for rent for a two bedroom
place when it clearly was not. This is misleading and clearly FALSE ADVERTISING,
otherwise we could all ask for more.”

The Chairman ruled that the following provision was relevant:

Code of Ethics - Rule 2: Truthful Presentation - Advertisements should not
contain any statement or visual presentation or create an overall impression which
directly or by implication, omission, ambiguity or exaggerated claim is misleading or
deceptive, is likely to deceive or mislead the consumer, makes false and misleading
representation, abuses the trust of the consumer or exploits his/her lack of
experience or knowledge. (Obvious hyperbole, identifiable as such, is not
considered to be misleading).

The Advertiser, S. Ross, said:

“I am totally flabbergasted at K. Mummery's … accusations. …

The flat I have downstairs is approximately 70 sqm, & has been rented out as a 2
bedroom flat for the last 5 years with no problems whatsoever. I have had a number
of tenants ranging from solo parents, to 2 or more flatmates, couple with children. At
present the flat is occupied by 3 single men, both bedrooms being used as
bedrooms. The layout of the flat is that you walk in the front door into the
lounge/kitchenette & then there is a double bedroom, off that is the bathroom & then
laundry & then there is another bedroom which is the size of a rumpus room which is
fairly large & can also be used as a second lounge/bedroom but i don't advertise it as
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that, I only advertise it as 2 bedrooms which it is & is being occupied as such at
present.

Please do not hesitate to contact me to discuss ….”

The Media, Fairfax Media – Suburban Newspapers Auckland, said:

“The customer had placed two sets of ads over the phone with the Call Centre.

       1.      On 6-4-2009 to run in the NST on 7th, 9th and 11th of April
       2.      On 20-4-2009 to run in the NST on 21St, 23rd and 24th of April

Both ads were paid for by the customer with their credit card. There are no further
bookings.

On speaking to the customer this morning, they advised that the property is currently
rented out to 3 people. The property has one bedroom and also a rumpus which is
used as a bedroom and an extended lounge.

The customer also confirmed that the property was let out as a 2brm for the last
5years. They have had no problems whatsoever.”

Deliberation

The Complaints Board read carefully the relevant correspondence and the
advertisement. It noted Complainant, K. Mummery, was of the view that the
advertisement was misleading with regard to the claim that the property for rent had
two bedrooms.

The Chairman directed the Complaints Board to consider the complaint with
reference to Rule 2 of the Code of Ethics.

The task before the Complaints Board was to determine whether the advertisement
contained an exaggerated claim which was misleading or likely to mislead the
consumer. The Complaints Board noted from the Advertiser’s response where it said
the following:
  “The layout of the flat is that you walk in the front door into the
  lounge/kitchenette & then there is a double bedroom, off that is the bathroom &
  then laundry & then there is another bedroom which is the size of a rumpus
  room which is fairly large & can also be used as a second lounge/bedroom but I
  don't advertise it as that, I only advertise it as 2 bedrooms which it is & is being
  occupied as such at present.”

As such the Complaints Board was assured that the flat did in fact have two rooms
which constituted bedrooms and had been let on that basis for five years. It noted
that the second room could either be used as a bedroom or a second lounge.
Accordingly, it ruled that the advertisement did not contain a misleading claim and
was not in breach of Rule 2 of the Code of Ethics.

The Complaints Board ruled to not uphold the complaint.

Decision: Complaint Not Upheld
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                                     DECISION

                                Chairman’s Ruling

                                22 September 2009

Complaint 09/337

Appeal 09/043

                      Complainant: K. Mummery
                      Advertisement: Browns Bay Rental Property / S. Ross
                      Applicant: K. Mummery

Complaint: The advertisement in the “To Let” Classified Advertising section of the
Northshore Times proceeded as follows: “BROWNS BAY 2bdrms. Close to
beaches, shops. HRV system. $300pw. Ph … or 021 ….”


Complainant, K. Mummery, was of the view that the advertisement was misleading
where it advertised the property as having two bedrooms, as she was of the view
that it was a one bedroom property.


The relevant provision was Rule 2 of the Code of Ethics.


The Complaints Board ruled to Not Uphold the complaint at its meeting on 14 July
2009.


Applicant, K. Mummery, submitted an application for appeal:

“I read your letter with amazement. Firstly, S. Ross's comment that her flat
downstairs is a lounge/kitchenette. There is barely enough room to put a kitchen
table in the little kitchen area let alone a lounge suite and heavens knows where
you'd put the T.V.

I find the whole thing quite ludicrous that in this fairly small flat that you can say
lounge is a rumpus/bedroom. There is no wardrobe or door separating it off from the
rest of the house. This lady might well have been renting her underneath her house
out as a two bedroom place but once again you cannot count a lounge as a rumpus
bedroom otherwise we could all do it. There is only one bedroom and a lounge.

Has anybody bothered to inspect this property or just taken S. Ross at her word,
Once again I guess she has gotten away with it, There clearly needs to be a law
about this sort of thing.”

Further correspondence said:

“…I would like the Chairman to appeal the above decision, I feel it is e) in the
interests of natural justice that the matter be reheard. Once again this place was
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advertised as a two bedroom place which it is not, this is clearly false advertising.
(Or as previously stated otherwise we could all do it).”


The Chairman perused the application for appeal. She noted that there were five
grounds upon which an appeal was able to proceed. These were listed at Clause
6(a) of the Second Schedule of the Advertising Standards Complaints Board
Complaints Procedures and were as follows:

   (i)     The proper procedures have not been followed.

   (ii)    There is new evidence of sufficient substance to affect the decision.

   (iii)   Evidence provided to the Complaints Board has been misinterpreted to
           the extent that it has affected the decision.

   (iv)    The decision is against the weight of evidence.

   (v)     It is in the interests of natural justice that the matter be reheard.

The Chairman noted that the Applicant disagreed with the Complaints Board’s
decision to Not Uphold the complaint, specifically as she remained of the view that it
was misleading to advertise the property as having two bedrooms. However, the
Chairman was of the view that that issue had already been fully canvassed by the
Complaints Board at its meeting on 14 July 2009, where it considered all information
presented to it, and made a ruling on this matter.

She did not consider that the appeal application raised any issues which, in the
interests of natural justice, suggested that the application for appeal be accepted.
She said that disagreement with the decision, in itself, was not a ground for appeal
of a Complaints Board decision.

The Chairman said that the application for appeal had not met any one of the
grounds upon which an application for an appeal of a Complaints Board decision
could be accepted. Accordingly, she ruled that the application for appeal be
declined.


Chairman’s Ruling: Application for appeal Declined

				
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