Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Guan v Lui [2021] NSWCA 65 Hearing dates: 22 October 2020 Date of orders: 23 April 2021 Decision date: 23 April 2021 Before: Bell P at [1];
Basten JA at [2];
Meagher JA at [3].Decision: Dismiss the appeal with costs.
Catchwords: AGENCY — Property, Stock and Business Agents Act 2002 (NSW) — where person performs services without real estate agent licence — whether services performed as “real estate agent”
STATUTORY INTERPRETATION — Property, Stock and Business Agents Act 2002 (NSW) — definition of “real estate agent” — meaning of phrase “as an agent”
Legislation Cited: Auctioneers and Agents Act 1971 (Qld), s 71A(1)
The Auctioneers, Real Estate Agents, Debt Collectors and Motor Dealers Acts 1922 to 1961 (Qld), s 17(1)
Property, Stock and Business Agents Act 1941 (NSW), ss 20, 42
Property, Stock and Business Agents Act 2002 (NSW), ss 3, 8, Sch 1
Property, Stock and Business Agents Amendment (Property Industry Reform) Act 2018 (NSW)
Property, Stock and Business Agent Regulation 2003 (NSW)
Cases Cited: Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566; [1998] HCA 59
Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303; [1995] FCA 1107
Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; [1931] HCA 53
Farrell v Bannister (1952) 52 SR (NSW) 73
Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418; [1970] HCA 31
International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644; [1958] HCA 16
Jenkins v Kedcorp Pty Ltd [2002] 1 Qd R 49
Kennedy v De Trafford [1897] AC 180
Milne v Coxton (unreported, NSWSC, 7 December 1987)
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 4) [2017] NSWSC 436
Scott v Davis (2000) 204 CLR 333; [2000] HCA 52
Simpson v Donnybrook Properties Pty Ltd [2010] NSWCA 229
Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 1) [2009] 1 Qd R 589; [2008] QCA 357
Texts Cited: Restatement of the Law Second, Agency (American Law Institute, 1958)
Category: Principal judgment Parties: Xiuyan Guan (appellant)
Kevin Yung Lui (respondent)Representation: Counsel:
Solicitors:
Dr A J Greinke (appellant)
P Afshar (respondent)
Auyeung Hencent & Day Lawyers (appellant)
Dunstan Legal (respondent)
File Number(s): 2019/232687 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Common Law
- Citation:
- Date of Decision:
- 28 June 2019
- Before:
- Walton J
- File Number(s):
- 2015/160052
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant was the sole shareholder and director of a company which owned development land that was subject to a mortgage. The appellant had also guaranteed the repayment of that mortgage. In late 2014, the mortgagee in possession appointed agents to sell…
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- AGLC
- Guan v Lui [2021] NSWCA 65
- Case
- [2021] NSWCA 65
- Decision Date
CaseChat Overview and Summary
The court was required to determine the meaning of "real estate agent" as defined in section 4(1) of the Act, specifically the phrase "as an agent". This involved considering whether Mr. Guan's actions in facilitating the sale of the property constituted acting "as an agent" in a manner that required a licence. The central question was whether the services performed by Mr. Guan were performed in the capacity of a real estate agent, as contemplated by the legislation, or whether they were of a different nature that did not trigger the licensing requirements.
The Court of Appeal held that the definition of "real estate agent" in section 4(1) of the Act was broad and intended to capture a wide range of activities related to the sale of property. The court reasoned that Mr. Guan's involvement in negotiating the sale, introducing purchasers, and facilitating the transaction was consistent with the ordinary understanding of what a real estate agent does. The phrase "as an agent" was interpreted to mean acting in the capacity of an agent, and Mr. Guan's conduct clearly demonstrated he was acting in such a capacity in relation to the property sale. Consequently, the court found that Mr. Guan had performed services as a real estate agent without a licence, and the agreement for commission was therefore unenforceable.
The appeal was dismissed with costs.
Orders
Orders of the court
Dismiss the appeal with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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