Galego v Residential Tribunal & Anor [2000] NSWSC 472

New South Wales Supreme Court

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

Josezinha De Brito Galego (Plaintiff) PARTIES : v Residential Tribunal (First Defendant) Mary Hudson (Second Defendant) JUDGMENT OF : Master Malpass

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

N/A ( Plaintiff) COUNSEL : N/A (First Defendant) Mr D A Smallbone with Mr S Ioannou (Second Defendant) Burrell Solicitors (Plaintiff) SOLICITORS : 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. Property, Stock And Business Agents Act 1941, s 3, s 20. LEGISLATION CITED : 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."