Galego v Residential Tribunal

[2000] NSWSC 472

CITATION:	Galego v Residential Tribunal & Anor [2000] NSWSC 472
CURRENT JURISDICTION:	Common Law Administrative Law List
FILE NUMBER(S):	SC 30017 of 2000
HEARING DATE(S):	17 May 2000
JUDGMENT DATE:	1 June 2000
PARTIES :	Josezinha De Brito Galego (Plaintiff) v Residential Tribunal (First Defendant) Mary Hudson (Second Defendant)
JUDGMENT OF:	Master Malpass

LOWER COURT JURISDICTION :	Residential Tribunal
LOWER COURT FILE NUMBER(S) :	99/42215
LOWER COURT JUDICIAL OFFICER :	Robert Tickner

COUNSEL :	N/A ( Plaintiff) N/A (First Defendant) Mr D A Smallbone with Mr S Ioannou (Second Defendant)
SOLICITORS:	Burrell Solicitors (Plaintiff) I V Knight - Crown Solicitor - Submitting appearance (First Defendant) Verekers Solicitors (Second Defendant)
CATCHWORDS:	Residential Tenancy - landlord’s agent - must such agent be a licensed real estate agent - discretion to waive defect in termination notice.
LEGISLATION CITED:	Property, Stock And Business Agents Act 1941, s 3, s 20. Residential Tenancies Act 1987, s 3, 63, s 66, s94. Residential Tribunal Act 1998, s 62.
CASES CITED:	Gluyus v Marano
DECISION:	See paragraph 25.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADMINISTRATIVE LAW LIST

MASTER MALPASS

THURSDAY 1 JUNE 2000

30017 of 2000 JOSEZINHA DE BRITO GALEGO v RESIDENTIAL TRIBUNAL & ANOR

JUDGMENT


1   The plaintiff is the landlord of the rented premises known as Room No. 18, 214 Glebe Point Road, Glebe. The premises form part of a complex which has been referred to as a “shared accommodation house”. The second defendant is the tenant.

2   The plaintiff purported to give a termination notice dated 23 September 1999. It was signed by Brian Galego as the agent for the landlord. As the tenant did not vacate the premises, application for an order was made to the Residential Tribunal. It came before the Chairperson of the Tribunal (Mr R Tickner). Both parties had representation. Mr Burrell (a solicitor) appeared for the landlord and Ms Porteous (a tenants’ worker from the Redfern Legal Service) appeared for the defendant. A determination was made on 16 December 1999.

3   The Tribunal made an order that the application be dismissed. The Tribunal issued a Notice Of Order which states that it was dismissed because the Tribunal had no jurisdiction as “The application for termination was not signed by the landlord or the landlord’s agent”. It was issued on 29 December 1999. There is discrepancy between the contents of this document, notes made as to oral reasons given (these were made by Mr Burrell) and the written reasons later given for the decision (which were dated 16 February 2000).

4   Despite the discrepancies, there appears to be a consensus between the parties as to what in fact took place. The Tribunal took evidence by way of oral submissions. It was said that the landlord was a woman of 69 years of age for whom English was a second language. Mr Galego is her son. He was well known to the tenants as the person to whom rent was paid. There was a business relationship between mother and son. He managed the property as agent for his mother. He carried on discussions with the tenants. He collected the revenue and paid outgoings and expenses. He retained part of the revenue received and paid the balance to his mother.

5 Section 63 of the Residential Tenancies Act 1987 (the Act) prescribes “Form of notice of termination”. One of the requirements is that it be signed by the landlord or the landlord’s agent. A consequence of this provision is to enable such agent to sign the notice in lieu of the landlord. Section 66 gives the Tribunal a discretion to make orders even though there is a defect in the notice.

6 The words “landlord’s agent” appear in a number of the provisions in the Act. There are many references to “person” or “other person”. The words “or any person authorised by the landlord” also appear. In dealing with the subject of “Presentation of Cases”, the words “any other person” and “another person” appear in s 94 (these words would appear to contemplate inter alia a landlord’s agent in the course of carrying out usual functions).

7   A definition of “landlord’s agent” may be found in s 3. It is common ground that all of the criteria prescribed by the definition were satisfied in this case. A finding to that effect would seem to have been implicit in what the Tribunal did. Accordingly, the question of whether or not that view be correct can be put to one side.

8   Mr Galego is not a licensed real estate agent. The issue identified by the Tribunal in the head note to the reasons was expressed as follows:-
“Whether a termination notice given in the name of a person other than the landlord and signed by that person is valid where that person is not a licensed real estate agent.”

9   The Tribunal found that the combined effect of the operation of the Act and the Property, Stock And Business Agents Act 1941 (the 1941 Act) was to render invalid a termination notice given and signed by a person who was neither the landlord nor a licensed real estate agent. The Tribunal had regard to the definition of “Real estate agent” which may be found in s 3 of the 1941 Act and inter alia to what appears in s 20 of that Act. Section 20 provides inter alia that “A natural person must not act as or carry on the business of (or advertise, notify or state that the person acts as or carries on or is willing to act as or to carry on the business of) a real estate agent, unless the person is the holder of a real estate agent’s licence”.

10   These proceedings were commenced by Summons filed on 19 January 2000. The Summons purports to institute an appeal against the whole of the order made by the Tribunal.

11 There is a limited avenue of appeal against a decision of the Tribunal (see s 62 of the Residential Tribunal Act 1998). It is restricted to a situation where the Tribunal decides a question with respect to a matter of law. In this case, it is common ground that the matter agitated by the plaintiff involves a question with respect to a matter of law. Ultimately, there was no real dispute that it concerned a preliminary or jurisdictional issue.

12   The matter raised for decision has its complexity. The case put on behalf of the plaintiff is in effect that the 1941 Act was not intended to apply to the normal position of principal and agent where there are private arrangements between landlord and agent. It was put that the 1941 Act was intended to apply to an agent who provides services to the public for reward.

13   The 1941 Act was in force well before the enactment of the Act and could have been referred to in the Act if the Legislature had wished to do so. The 1941 Act is expressed to be an Act to regulate real estate, stock and station, business and managing agents together with other purposes. The Act is expressed to have a number of objects. It is an Act relating to inter alia the rights and obligations of landlords and tenants under residential tenancy agreements and confers functions on the Tribunal with respect to landlords and tenants. It contains no reference to the 1941 Act or real estate agents.

14   At this stage, it is convenient to look at the respective definitions of “landlord’s agent” and “Real estate agent”.

15   “Landlord’s agent” is defined in the following terms:-
“landlord’s agent means a person who acts as the agent of a landlord and who (whether or not the person carries on any other business) carries on business as an agent for:
(a) the letting of residential premises, or
(b) the collection of rents payable for any tenancy of residential premises.”

“Real estate agent” is defined in the following terms:-

“Real estate agent means a person (whether or not the person carries on any other business) who, for reward (whether monetary or otherwise), carries on business as an agent for:

(a) inducing or attempting to induce or negotiating with a view to inducing any person:

to buy, sell, exchange, lease, assign or otherwise dispose of any land, or
to make an offer to buy, sell, exchange, lease, assign or otherwise dispose of any land, or
to accept an offer to buy, sell, exchange, lease, assign or otherwise dispose of any land, or
to enter into a contract for the buying, selling, exchanging, leasing, assigning or other disposal of land, or


(b) buying, selling, exchanging, leasing, assigning or otherwise disposing of any land, whether or not an auction is involved, or

(c) collecting rents payable in respect of any lease of land, or

(d) compiling for publication or compiling and publishing any document that contains a list relating solely or substantially to the acquisition or disposal by any person of land,
but does not include a person who carries on business as such an agent in respect of any parcel of land used for agricultural or pastoral purposes with an area of more than 2.5 hectares.”

16   The definition of “landlord’s agent” is satisfied when there is a person who acts as the agent of a landlord and carries on business as an agent for either the letting of residential premises or the collection of rents payable for any tenancy of residential premises.

17   There is some similarity with provisions which appear in the definition of “Real estate agent”. One common element is the carrying on of business as an agent for the collecting of rents.

18   There are linguistic differences. The definition of “Real estate agent” embraces a much larger range of business activities. The definition of “Real estate agent” contains the additional words “for reward (whether monetary or otherwise)”. It can be expected that these words were intended to serve a purpose. Some difficulty in ascertaining that purpose is had when the words are used in conjunction with the word “business” (which is not defined). In this case, the parties were able to afford but little assistance on that matter. The exposition of “business” in the dictionary provides a multiplicity of meanings. Some of them do not involve the concept of reward. The word “business” has to be construed in its context. The word may not have been intended to have the same meaning in each Act. The business of a “landlord’s agent” is expressed to be in relation to “residential premises”. The business of a “Real estate agent” is expressed to be in relation to “land”. The expressions “residential premises” and “land” are defined. A necessary ingredient of “residential premises” is that there be premises (or part thereof) used or intended to be used as a place of residence. “Land” has a relatively unhelpful inclusive definition.

19   It seems to me, when regard is had to the purpose and the language of the Acts, that it was not intended that a “landlord’s agent” be identified with a “Real estate agent”. It may be that in many cases the landlord’s agent is a real estate agent. But, if it had been intended that a “landlord’s agent” be restricted to persons holding a real estate agents licence, it could have been expected that the Legislature would have said so. Parliament has chosen to provide a definition of “landlord’s agent”. This definition prescribes the criteria required by a person to qualify as a “landlord’s agent”. The provisions of the Act do not require that person to be either a real estate agent or a licensed person.

20   The Act, inter alia, treats a “landlord’s agent” as a person who is permitted to perform certain functions in the stead of the landlord (for present purposes that function is the signing of a form). The prescribed criteria would suggest that Parliament had in mind a person who has inter alia knowledge, responsibility and experience.

21   In the light of the material placed before the court, I am not of the view that Mr Galego should have been the holder of a real estate agent’s licence. The material suggests that he and his mother merely had a family arrangement for the running of a shared accommodation house.

22   In my view, the Tribunal has fallen into error. The termination notice was not invalid merely because it was signed by a person who satisfied the requirements of a “landlord’s agent” but was not a licensed real estate agent.

23   There was reference to a decision in Gluyus v Marano . In my view, it has no application to this case.

24 For completeness it can be observed that the Act recognizes the concept of defect in any notice of termination (as opposed to that of invalidity). I might add that had the notice been defective for such a reason, the Tribunal had a discretion pursuant to s 66. The discretion was not exercised in this case.

25   The order made by the Tribunal is set aside. I remit the decision on that question to the Tribunal and order a re-hearing of the proceedings before the Tribunal. The second defendant is to pay the plaintiff’s costs of these proceedings.
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Last Modified: 09/26/2000