Guan v Lui

The appeal concerned the interpretation of the *Property, Stock and Business Agents Act 2002* (NSW). The appellant, Mr. Guan, had provided services in relation to the sale of a property without holding a real estate agent's licence. The respondent, Mr. Lui, sought to recover commission paid to Mr. Guan, arguing that Mr. Guan had acted as a real estate agent without the requisite licence, thereby rendering the agreement for commission unenforceable. The primary issue before the Court of Appeal was whether the services provided by Mr. Guan fell within the definition of a "real estate agent" under the Act.

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.