Gopal Sri Ram JCA:

The broader question that this appeal raises is the meaning of 'estate agency practice' as defined by the Valuers, Appraisers and Estate Agents Act 1981 ("the Act"). The narrower and immediate question at hand is whether the plaintiff in the suit (the respondent before us) may recover the commission promised him by the defendant (the appellant before us).

Although the Act has been on the statute books since 1981, there has not been much litigation about it. So far as advised by counsel, this is the first time that this court is seised of an appeal that deals with what an estate agent is under the Act. It is to be noted at once that the Act does not define "estate agent". Instead it defines "estate agency practice". And that definition (as provided in s. 2 of the Act) is as follows:

'estate agency practice' means acting or holding oneself out, to the public as ready to act, for a commission, fee, reward or other consideration, as an agent in respect of the sale or other disposal of land and buildings and of any interest therein or the purchase or other acquisition of land and buildings and of any interest therein or in respect of the leasing or letting of land and buildings and of any interest therein.

Learned counsel for the defendant (the appellant before us) made a sustained submission relying on the aforesaid definition. His complaint is that learned judge misdirected himself on the bifurcation within the definition between "acting as an agent" and "a holding out to the public" by treating both as a composite conduct. Our attention was drawn to a passage in the judgment under appeal to justify the complaint. This is what it says:

In the present situation of our case, from the facts as disclosed, the plaintiff only mentioned the availability of the Land for sale to his good friend Encik Hakkim, who then referred him to the defendants. This disclosure cannot be considered as: having been done openly. It was in fact very discreet. It was restricted and confined to only 2 persons.

It was a private conversation, certainly not opened to all members of the community. There was no announcement of this information to the public at large, nor was it published in any publication circulated in the open. For this, I am convinced that the plaintiff had not acted or held himself out to the public as ready to act for reward in introducing this land for sale.

Ex facie, it may be argued that the above quoted passage is flawed and, put at its highest, amounts to a misdirection. But we are not to be taken as saying that it does. We say that it may; that is all. And we find it unnecessary to deal with this part of the defendant's case because in our view counsel's argument overlooks a fundamental principle regarding definition clauses in statutes which principle we find requires re-statement. This is done easily enough by reproducing the following passage in the joint judgment of Barwick CJ, McTiernan and Taylor JJ in Gibb v. Federal Commissioner for Taxation [1966] 118 CLR 628, 635:

The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way. .. Consequently the effect of the Act and its operation in relation to dividends as defined by the Act must, we think, be found in the substantive provisions of the Act which deal with 'dividends'.

It follows that what we must focus upon in a case concerned with the discovery of Parliamentary intention is the relevant provision of the particular statute. In the present case, it is s. 22C of the Act. That section in its material part reads:

22C. Restrictions on estate