New South Wales Consolidated Acts

LANDLORD AND TENANT (AMENDMENT) ACT 1948 - SECT 36

36 Certain payments prohibited

(1) A person shall not, whether as principal or agent, or in any other capacity:

(a) seek, give, demand, solicit or receive, or offer, promise or agree to give or receive, any bonus, premium or sum of money (other than rent), or other consideration, or sell, purchase or exchange any goods or good-will, in consideration of, or in association whether directly or indirectly with:

(i) the grant, acceptance, assignment, transfer, or surrender of any lease of,

(ii) the renewal or extension of a lease, or the continuance of a letting of,

(iii) any agreement for a lease, or for the renewal, extension, assignment, transfer, or surrender of a lease of,

(iv) the giving or procuring of any consent to a sub-lease or to the assignment of a lease of,

(v) the vacating or parting with the possession (whether alone or in conjunction with or as an incident of any of the foregoing transactions) of,

any prescribed premises (including any dwelling-house) except with the consent of the Director-General in the case of shared accommodation situated within, or partly within and partly outside, the Metropolitan Area, or except with the consent of the Fair Rents Board nearest to the premises in the case of any other prescribed premises.
Provided that nothing in this paragraph shall preclude the payment to, or the receipt by a real estate agent licensed under the Auctioneers, Stock and Station and Real Estate Agents Act 1941-1946 of any fee or commission properly or normally payable to such agent for anything done in the course of his or her business as such estate agent.
Provided further that in the case of any transaction of the nature referred to in the foregoing provisions of this paragraph in which a business agent licensed under the Business Agents Act 1935-1941 is concerned, the application for consent shall contain a statement of the amount of fee or commission payable to such business agent in respect of the transaction; and the Director-General or the Fair Rents Board, as the case may be, shall have power either to allow such fee or commission mentioned in the statement or to disallow such amount and to allow in lieu thereof such amount as to him or her or it appears reasonable, by way of fee or commission. No person shall demand, seek receive or pay any amount in respect of fee or commission in excess of the fee or commission allowed by the Director-General or the Board, as the case may be.
Provided further that nothing in this subsection shall be construed as enabling the Director-General or the Fair Rents Board to grant a consent relating to any prescribed premises where the bonus, premium, sum of money or other consideration is in the opinion of the Director-General or the Fair Rents Board, as the case may be, sought, demanded, solicited or received by a person who is not the lessee of the premises or by a person who has become the lessor of the premises by virtue of a concurrent lease in consideration of, or partly in consideration of, or in connection with, the obtaining of vacant possession of the premises, or is in the opinion of the Director-General or the Fair Rents Board, as the case may be, offered, promised or agreed to be received by such a person, in consideration of, or partly in consideration of, or in connection with, the obtaining of vacant possession of the premises,

(b) pay, give, demand, solicit or receive, or offer, promise or agree to pay, give or receive, any sum of money or other consideration:

(i) for obtaining or making available a key of any prescribed premises (including any dwelling house),

(ii) for information as to a lease, or as to the possibility or likelihood of obtaining a lease, of any prescribed premises (including any dwelling-house),

(iii) for registering, or undertaking to register, the name or requirements of any person seeking a lease of any premises,

(iv) for supplying, or undertaking to supply, to any person addresses or other particulars of any premises available or represented to be available, or which may become available, for letting,

(v) for providing, or undertaking to provide, any person with an advertising or other service directed to the obtaining of a lease of any premises,

(vi) for registering, or undertaking to register, the name of any person as a member of a club or association upon the representation that such club or association or any person employed by or connected with such club or association will endeavour to obtain, on behalf of the person whose name is so registered or to whom such an undertaking is made, a lease of any premises, or

(vii) for issuing, without the authority of the owner of any premises or his or her agent authorised thereunto in writing, any advertisement, list or other document describing those premises as being available for letting:

Provided that nothing in this paragraph shall preclude:

(A) the payment to or receipt by a real estate agent, licensed under the Auctioneers, Stock and Station and Real Estate Agents Act 1941-1954 , by or from the owner of any premises of any fee or commission properly or normally payable to such agent for anything done by him or her in the course of his or her business as such estate agent,

(B) the payment to, or receipt by, a solicitor of any remuneration in respect of professional work done by him or her as such, or

(C) the payment to, or receipt by, the proprietor of any newspaper of any sum in consideration of the publication in such newspaper of any advertisement or notice received for the purpose in the ordinary course of business, or

(c) make it a condition of the granting of any lease of a dwelling-house that the lessee shall effect any improvements, alterations or repairs at his or her own expense.

In this subsection:
"Newspaper" means:

(i) any newspaper, or

(ii) any periodical or magazine,

published in good faith for the purpose of supplying mainly news and information other than news or information describing premises as being available for letting.
"Owner" in relation to premises, means the person having power to grant a lease of those premises.

(1A) Where a person is charged with any offence arising under subsection (1) and it appears at the hearing at which he or she is present or is represented by counsel or attorney that he or she has not committed the offence with which he or she was charged but has committed some other offence arising under that subsection he or she may, notwithstanding subsection (2) of section 95 or any other provision of this or any other Act, be charged at the hearing with such other offence and dealt with accordingly.

(2) Any sum paid in contravention of this section may be recovered by the person who paid it from the person to whom it was paid in an action for debt in any court of competent jurisdiction, or, if the person to whom it was paid is the lessor, may, without prejudice to any other method of recovery, be deducted by the lessee from any rent payable by him or her to the lessor within six months after the date of the payment.

(3) Where a person has, in contravention of this section, purchased or exchanged any goods or goodwill, he or she may recover in any court of competent jurisdiction, from the person from whom the goods or goodwill was purchased or with whom the goods were exchanged, so much of any amount paid for the goods or goodwill purchased as exceeds the fair value thereof, or, as the case may be, an amount equal to the excess of the fair value of the goods which he or she has exchanged over the fair value of the goods which he or she has received in exchange.

(4) Where a person has, in contravention of this section, sold any goods or goodwill, he or she may recover in any court of competent jurisdiction, from the person to whom the goods or goodwill was sold, so much of the fair value thereof as exceeds the amount for which the goods or goodwill was sold.

(5)

(a) Where a person is convicted of an offence arising under this section, the court, in addition to imposing a penalty on such person for the offence, may order that the amount which in its opinion would be the amount recoverable in civil proceedings pursuant to subsection (2), subsection (3) or subsection (4) shall be paid by the offender to the clerk of the court within a time to be specified in the order. Any amount so paid shall be paid by the clerk to the person by whom the amount would have been recoverable in civil proceedings as aforesaid.

(b) Any such order shall be deemed to be a conviction or order whereby a sum of money is adjudged to be paid within the meaning of the Justices Act 1902-1951 .

(c) Where an order has been made under paragraph (a), any other remedy which would, but for this paragraph, have been available against the offender apart from this subsection for the recovery of the amount the subject of the order shall cease to be available.

(6) For the purposes of this section:

(a) "lease" and "letting" includes any leave and licence for the use of any premises or prescribed premises, and "lessor" and "lessee" have a corresponding meaning,

(b) prescribed premises used under conditions of leave and licence shall be deemed to be shared accommodation,

(c) "rent" includes any payment or consideration in respect of any leave and licence for the use of any prescribed premises and for any services provided for or supplied to any person using any such premises under leave and licence.