Landlord and Tenant (Amendment) Act 1932 (NSW)

LANDLORD AND TENANT

(AMENDMENT) ACT.

Act No. 67, 1932.

An Act to make further provision relating to the postponement of ejectment of persons who are in occupation of certain dwelling-houses and who are in impoverished circumstances; to make further provision relating to the reduction of rents in certain cases; to amend the Landlord and Tenant Act of 1899, and certain other Acts; and for purposes connected therewith. [Assented to, 30th. December, 1932.]

BE it enacted by the King 's Most Excellent Majesty, lative Council and Legislative Assembly of New South b y and with t he advice and consent of the Legis­	Wales in Par l iament assembled, and by the author i ty of
t he same, as follows :—

P A R T I .

PRELIMINARY.

S C H E D U L E .

1 . (1) This Act m a y be cited as the " L a n d l o r d and

Tenan t (Amendment) Act, 1932."

(2) This Act is divided into P a r t s as follows:—

P A R T	I.— PRELIMINARY.
P A R T	I I . — E J E C T M E N T S POSTPONEMENT.
P A R T	I I I . — REDUCTION OE R E N T .
P A R T	IV.— MISCELLANEOUS.

2 . P a r t s I and I V of this Act shall commence on the day on which this Act receives the Royal Assent .

P a r t I I of this Act shall commence on a day to be appointed by the Governor and notified by proclamation published in the Gazette.

P a r t I I I of this Act shall commence on the thirty-first day of December, one thousand nine hundred and thi r ty- two.

P A R T I I .

E J E C T M E N T S POSTPONEMENTS.

3 . The Acts mentioned in the Schedule to this Act are to the extent therein indicated, hereby repealed.

Wi thou t l imit ing any saving made by the In t e rp re t a t ion

Act of 1897, nothing in this section shall affect the opera­ tion of any order made by any court under any enact­ ment hereby repealed.

4 . I n this Pa r t , unless the context or subject-matter otherwise indicates or requires ,—

" Dwelling-house " means any premises which a t or after the commencement of this P a r t a re leased wholly or par t ia l ly for p r iva te residence at a ren t not exceeding three pounds a week to a lessee who has become before such commencement and

of this P a r t , or who becomes such an occupier is therea t an occupier of them within the meaning thereaf ter , and includes any land or appur ten­ ances leased and occupied with such premises or p a r t .

" Lease " includes every le t t ing of a dwelling-house, whether oral , in wri t ing, or by deed; and " leased " has a corresponding meaning.

" L e s s e e " includes a mesne lessee and also any person from t ime to t ime der iv ing title from the original lessee.

" Occupier "

" Occupier " means any person re ta in ing possession of a dwelling-house af ter the te rmina t ion of his lease, whether it te rminated by effluxion of time, through determinat ion by notice to quit, by forfei ture, or in any other way whatsoever, but does not include a mor tgagor in possession

of the mor tgaged	proper ty .
" O w n e r " means the person for the t ime	being

entitled to the ren t s or profits of any dwelling-
house.

" R e n t " includes any payment for occupation or possession of premises .

5 . ( 1 ) Subject to this section no person shall, except under an order of a competent court, take possession of any dwelling-house without the consent, express or im­ plied, of the occupier.

(2) An owner of a dwelling-house to whom any rent is owing by the lessee thereof may by notice in wr i t ing served on any sublessee of such dwelling-house or p a r t thereof require such sublessee to pay to the owner all rent then due and thereaf ter accruing due from such, sublessee, and in default of payment in accordance with such notice sue for and recover the same from the sub­ lessee as a debt in any court of competent jur isdict ion.

Any amount received from any sublessee shall be ap­ plied towards the satisfaction of the ren t owing by the lessee after payment of the costs and expenses of re­ covering the same, and any excess after the payment of such rent , costs and expenses shall be repaid to the lessee.

Any payment of rent by a sublessee in accordance with any such notice shall be deemed a good payment to the lessee, and the receipt of the owner shall be a good dis­ charge to the sublessee of any claim by the lessee to the extent of the payment .

Noth ing in this section shall opera te to release a lessee from any liability for rent or from his obligations for the performance and observance of the covenants, agree­ ments or s t ipulat ions contained in the lease.

This subsection extends to premises used wholly or
par t ia l ly for p r iva te residence and held under any lett ing

or re ta ined by a lessee after the te rminat ion of a lett ing.

I n

Iii this subsection ' ' owner " includes any person for the

time being entitled to the rents and profits of the premises.

6 . (1) Where in any court an order or judgment for
the recovery of possession of any dwelling-house or for
i the ejectment of the occupier therefrom is made, recorded,
signed or given, the court, upon the applicat ion of the
occupier, and upon being satisfied tha t he is in im­
poverished circumstances shall, no twi ths tanding anyth ing
contained in the Common L a w Procedure Act, 1899, or
any other Act or in the rules of court made under any
Act, s tay or suspend execution on any such order or
judgment or postpone the date of possession for a per iod

not exceeding three months from the date of the appli­

cation.

(2) W h e r e the order for the recovery of pos­ session of a dwelling-house is made under the Land­ lord and Tenan t Act of 1899, an appl icat ion by the occu­ p ie r under subsection one of this section shall be made a t the t ime of the hea r ing of the appl icat ion for or the making of the order for the recovery of possession.

(3) W h e r e the action or proceeding for the eject­ ment of an occupier of a dwelling-house is inst i tuted in the Supreme Court or in a dis t r ic t court, an applica­ t ion under subsection one of this section m a y be lodged by the occupier at any t ime af ter the ins t i tu t ion of such action or proceeding, and before the judgment in such action or proceeding is executed; and if an appl icat ion is so lodged a judgment for the ejectment of the occu­ pier shall not be executed unt i l such applicat ion has

been hea rd and determined.

(4) Any stay or suspension of execution or post­ ponement of possession made by the cour t under th is section m a y be made conditionally on and subject to the paymen t by the occupier to the owner of such sum (if any) by way of compensat ion for his occupancy of the dwelling-house as is fixed by the cour t ; and any occupation payment so fixed shall be paid by such instal­ ments and a t such t imes as the court orders .

I n default of the compliance with any condition of

the order , execution may be proceeded with forthwith.
(5)

( 5 ) An occupier capable of working shall not be

deemed to be in impoverished circumstances unless he,

by evidence given on oath, satisfies the court—

(a)	that by reason of unemployment he was unable to pay any rent which accrued due before the making of his applicat ion and is a t the da te of the application, th rough the same cause, unable to make payments for his possession equal in
amount to the r e n t ; and
(b)	that his failure to obtain sufficient employment has been through no fault on his pa r t .

(6) W h e r e the court has exercised its powers under this section it may on the applicat ion of the occupier made before the end of the period for which it has s tayed or suspended execution of the order or judgment or has postponed the date of possession and in special cir­ cumstances make a fur ther order of s tay, suspension or postponement for such per iod in no case exceeding one month and upon such t e rms as to the court seems just .

7 . (1) The court shall not g r a n t any s tay or suspension

of execution or postponement of possession under th is

Act if it is satisfied by evidence given on oath—

(a)	that the owner would thereby suffer undue
h a r d s h i p ; or
(b)	that the occupier or any person residing with him has been guil ty of acts of waste depreci­ a t ing the value of the dwell ing-house; or
(c)	that the occupier has been convicted of using the premises or allowing the premises to be used for an immoral or illegal purpose .

(2) When a dwelling-house is reasonably required by the lessor as a residence for himself or for some member of his family the court shall not s tay or suspend execution on an order or judgment for the recovery of possession of the dwelling-house or for the ejectment of the occupier therefrom for any period exceeding one month in all.

8. If dur ing any stay or suspension or postponement of possession the occupier or any person res iding with him commits any act of waste deprecia t ing the value of the dwelling-house, the court may, upon the application of the

owner

owner, revoke or va ry any order made under section six, and may direct tha t the order or judgment for the re­ covery of possession of the dwelling-house, or for the ejectment of the occupier therefrom, be immediately enforced.

9 . The court at any time dur ing any s tay or suspen­ sion or pos tponement of possession, upon proof tha t the occupier can pay an occupation payment , may direct such to be made, or increase the amount of any occupation payment a l ready ordered to such sum not exceeding the amount of the rent as it in its discret ion considers rea­ sonable; and upon proof tha t the occupier 's financial circumstances have become worse it may decrease the amount of any occupation payment .

Should the occupier not comply with any order under this section the court may direct tha t the order or judgment for the recovery of possession or ejectment be immediately enforced.

1 0 . The judges of the Supreme Court and the judges of the dis t r ic t courts respectively may make rules of court regula t ing the procedure in the Supremo Court and in the dis t r ic t courts respectively in all ma t t e r s a r i s ing

under this P a r t .

1 1 . Where any court makes an order under this P a r t of this Act it shall notify the Minister of the making of the order in a form prescr ibed by rules of court, or in the case of courts of pe t ty sessions in a form approved by the Minister .

1 2 . The Minis ter shall be entit led to be represented
before any court of pe t ty sessions on the hear ing of any

applicat ion under this P a r t or under P a r t I V of the

Landlord and Tenan t Act of 1899. P A P T I I I .

REDUCTION OF R E N T .

1 3 . In this P a r t , unless the context or subject-matter otherwise indicates or requires ,—

" Lease " includes every le t t ing of premises whether oral , in wri t ing, or by deed, and " leased " has a corresponding meaning.

" Lessor "

" Lessor " and " lessee " mean the par t i es to a lease, and respectively include a mesne lessor and a mesne lessee, and also any person from time to time der iving title under the original lessor or lessee, and also in the case of a lease of land subject to the provisions of the Real P r o p e r t y Act, 1900, a mor tgagee in possession. " Premises " includes lands and buildings, and also

includes any p a r t	of a building	separa te ly
leased.

" Prescr ibed " means prescr ibed by this P a r t or by
the regulat ions made under P a r t I V of this Act.

1 4 .     (1) This P a r t shall not apply to or in respect of a

lease of any agr icul tura l land to which the provisions of
the Agr icu l tu ra l Lessees Relief Act, 1931, apply.

(2) Subject to the provisions of this section, this P a r t of this Act shall apply to and in respect of every lease which was subsist ing at the th i r t ie th day of June , one thousand nine hundred and thi r ty , and then had a t e r m which would not expire p r io r to the commencement of this P a r t of this Act, and shall apply to and in respect of every lease made p r io r to the said th i r t ie th day of J u n e to commence a t a date af ter such day and which has a t e rm which has not expired a t such commencement.

(3) Nothing in this P a r t of this Act contained shall in any way affect the liability of any occupier of licensed premises within the meaning of the Liquor Act, 1912, to pay to the owner thereof such increased ren t as is provided for by section 40A of the Liquor Act, 1912, nor the remedy given to the occupier of licensed premises by

subsection six of that section.

(4) This P a r t shall not opera te to reduce the amount of any rent payable or to become payable to the Crown.

1 5 . (1) Rent reserved by or under any lease to which this P a r t applies and accruing or to accrue due and pay­ able dur ing the per iod in which this P a r t remains in force is, subject to this section, hereby reduced by twenty-two and one-half pe r centum of the amount thereof, and shall be calculated and payable at such reduced ra t e accord­ ingly.

( 2 )

( 2 ) The reduct ion prescr ibed by subsection one

of this section shall be made from the r a t e of the ren t which was payable on the th i r t i e th day of J une , one thousand nine hundred and th i r ty , or the r a t e payable from a la ter da te under any lease made before the said thi r t ie th day of J u n e , but in the case of a lease which provides for a var ia t ion in the r a t e at a la ter da te from the r a t e for the t ime being provided for in the lease.

(3) Unless and unti l an order has been obtained from the court under th is P a r t de te rmining the ren t unde r a lease at a r a t e higher or lower than tha t p re ­ scribed by the foregoing provis ions of this section, the lease shall, dur ing the per iod for which this P a r t of this Act remains in force, be deemed to be a l tered to such extent as is necessary to give effect to this section.

(4) The obligation of any lessee to p a y ren t accruing or to accrue due and payable dur ing the per iod in which this P a r t of this Act remains in force a t any higher r a t e than tha t allowed by or under this P a r t is hereby extinguished.

(5) F o r the purposes of this P a r t r en t shall be

deemed to accrue due and payable from day to day.

1 6 . (1) Any lessee or lessor m a y apply to the cour t to have the annual ren t of a lease to which th is P a r t of this Act applies determined for the balance of the t e rm or dur ing the per iod for which this P a r t of this Act is in force, whichever is the shor te r per iod.

(2) Such appl icat ion shall be made within three

months of the commencement of this P a r t .

(3) Upon the hea r ing of an appl icat ion the court

may determine the ren t a t such higher ra te (not exceed­
ing t ha t provided for in the lease) or a t such r a t e lower

than tha t provided for in subsection one of section fif­ teen, as the court, in all the circumstances of the case, may deem jus t and reasonable .
(4) If on any applicat ion under this section by a lessor it appea r s t ha t any moneys by way of bonus, p remium or foregift have been pa id or a re payable to the lessor as considerat ion for the g r a n t of the lease the court shall—

(a) first determine in accordance with the provisions of section seventeen the annual ren t of the lease ;

(b)

(b)	then divide the total amount of the moneys paid or payable by way of bonus, p remium or foregift by the number of yea r s (excluding fract ions thereof) of the t e rm of the lease ;
(c)	then deduct from the annual rent as determined by it unde r the provisions of p a r a g r a p h (a) of this subsection the quotient obtained in pursu­ ance of the provisions of p a r a g r a p h (b) of this subsection.

If the remainder obtained after making such deduction be less than the amount of the ren t on a year ly basis as reduced by subsection one of section fifteen, the court shal l not make any order under this section.

If the said remainder be more than the amount of such ren t the annual ren t shall be determined a t the amount of the said remainder or a t the annual ren t provided for in the lease, whichever is the lesser amount .

(5) E v e r y o rder made by the court under this section shall have effect according to i ts tenor from such date not la ter than the da te of the appl icat ion or ear l ier than the commencement of this P a r t .

1 7 .     (1) In determining the annual ren t the court shall

first ascer ta in the capital value of the premises the subject-mat ter of the lease as at the t ime of the receipt of

t he application.

Such capital value shall be the capi tal sum which the fee-simple of the p r o p e r t y comprising the premises the

subject-mat ter of the lease and the land occupied there­
with might be expected to realise if offered for sale on such reasonable te rms and conditions as a bona-fide seller

would require .

W h e r e the premises the subject-matter of the lease a r e licensed premises within the meaning of the Liquor Act, 1912, the court shall include in and t r e a t as p a r t of the capital value of such premises the added value, if any, of such premises due to the fact tha t such premises

a r e licensed premises .

(2) The court shall determine the annual rent a t
a r a t e of not less than one and one-half pe r centum above

the r a t e of in teres t which is for the t ime being charged

upon

upon overdraf ts by the Commonwealth Bank of Aus t ra l i a on the capi tal value of the premises the subject-matter of the lease determined as aforesaid, plus the annual ra tes on the same, plus the amount es t imated to be requi red annual ly for r epa i r s ( including pa in t ing ) , main­ tenance, and renewal, and plus insurance of any buildings, and plus an amount es t imated to be the annual deprecia­ tion in value of the buildings, if such depreciat ion diminishes thei r le t t ing value, and plus in the case of licensed premises within the meaning of the Liquor Act, 1912, the es t imated annual amount which may be deducted from the rent by the lessee or recovered from the lessor in pursuance of subsection two of section twenty-one of tha t Act less the es t imated annual amount which may be re imbursed to the lessor under tha t subsection.

W h e r e premises the subject-mat ter of the lease a re occupied by two or more separa te lessees, the court shall determine the annual ren t of the whole, and then deter­ mine the propor t ion of such rent which it shall deem to be the annual ren t of the por t ion occupied by the lessee making the application.

1 8 .

1 9 .     (1) E v e r y payment of rent made in pursuance of

the provisions of this P a r t or an order made under this P a r t shall be a full discharge of the lessee 's l iabili ty for ren t under his lease in respect of the per iod to which such

payment re la tes .

(2) No reduct ion made by this P a r t or by any order made under this P a r t shall in any case continue in force beyond the period dur ing which this P a r t of this Ac t remains in force.

2 0 .     (1) W h e r e a lease was made after the eighth day

of October, one thousand nine hundred and thir ty-one,

and is subsis t ing a t the commencement of this P a r t of	this Act, the lessor may apply to the court for a redeter­
minat ion of the ren t payable under the lease.
(2) The court shall, in such a case, have jur isdic­ t ion and author i ty to determine the ren t payable for the balance of the t e rm of the lease a t such fair sum as the court thinks fit, no twi ths tanding tha t such sum may exceed the ren t provided for in the lease, and on any such de terminat ion the lease shall be deemed to be a l tered for the balance of the t e rm to the extent necessary to give effect to the de terminat ion .

2 1 . (1) The courts having jur isdict ion under this P a r t of this Act shall be—

(a)	in any application in respect of a lease of licensed premises within the meaning of the Liquor Act, 1912, the Licenses Reduction Board const i tuted under the Liquor (Amendment) Act, 1919, or where the amount of the annual ren t reserved by the lease is less than two
hundred pounds, a member of tha t b o a r d ;
(b)	in any application in respect of a lease (other than a lease of licensed premises) in which the annual ren t reserved is more t han three hundred
pounds, the Land and Valua t ion Cour t ;
(c)	in any application in respect of a lease other than those specified in p a r a g r a p h s (a) and (b) of this subsection—the dis t r ic t court for the dis t r ic t in which the premises a re s i tua ted or where the annual ren t reserved by the lease is less than one hundred and fifty-seven pounds a court of pe t ty sessions holden in and for the police distr ict in which the premises are s i tuated
before a s t ipendiary or police magis t ra te .

(2) If on any applicat ion to a court under th is P a r t of this Act an objection is taken to the jur isdic t ion of the court based on the amount of the annual ren t reserved or upon the s i tuat ion of the premises leased, the court shall determine the objection summari ly , and no order made by the court shall be challenged for defect of jur isdict ion based on any such objection, but the decision of the court as to such amount shall not operate as an estoppel between the par t i es or their pr ivies in any sub­

sequent proceedings.

2 2 .     (1) The jur isdict ion conferred on a court by this

P a r t of this Act may be exercised by a judge of the court s i t t ing ei ther in court or in chambers , or in the case of a cour t of pe t ty sessions, by a s t ipendiary or police magis­ t r a t e .
(2) Any applicat ion to the Land and Valua t ion Cour t or a distr ict court under this P a r t of this Act may be made on motion or summons in accordance with the rules of court respectively applicable to motions or sum­ monses in such courts .

(3)

(3) Any court hear ing any applicat ion under th is P a r t of this Act may order notice to be given to any mor tgagee or any other person as it th inks fit, or such court may, under such circumstances as i t thinks fit, hea r any appl icat ion ex pa r t e , or order subst i tuted service of notice of the applicat ion on, or dispense wi th notice to , such persons affected by the appl icat ion as it thinks fit.

(4) I n deal ing wi th an applicat ion under th is

P a r t of this Act the court m a y —

(a)	grant or adjourn the application upon such t e rms and conditions (if any) as the court th inks
fit; o r

(b) refuse the appl ica t ion; or

(c)	at any stage of the hearing allow such amend­ ments of the appl icat ion or o ther process as i t thinks fit.
(5) Any court hea r ing any appl icat ion u n d e r

th is P a r t of th is Act m a y in i ts discret ion direct	t ha t
the appl icat ion be hea rd in camera .

(6) A n y determinat ion, decision, j udgmen t ,

direction, order, or assessment made or given by any court in any m a t t e r a r i s ing unde r this P a r t of th i s Act shall be final and conclusive and without appeal , bu t all d is t r ic t cour ts and cour ts of pe t ty sessions and the Licenses Reduction B o a r d shall be bound by and follow decisions of the Land and Valuat ion Cour t or a judge thereof on the construct ion of th is Act.

(7) The court m a y reconsider any m a t t e r which

has been deal t wi th by it, or rescind, al ter , or amend

any decision or order previously made by it.

(8) The costs of any applicat ion unde r th is P a r t of this Act to the cour t shall be in the discret ion of the court , and the court when allowing any costs to any p a r t y unde r such P a r t may, if it thinks fit, assess the amount thereof.

(9) A n y order for the payment of money or of costs made by the Licenses Reduction Board or a mem­ ber thereof or by a court of pe t ty sessions unde r th i s P a r t of this Act shall opera te as an order for the pay­

ment

ment of money under the Small Debts Recovery Act, 1912, and be enforceable as such under the provisions of

t ha t Act.

2 3 . Any order made on any applicat ion under the provis ions of this P a r t of this Act may be regis tered in the office of the Regis t ra r -Genera l in the manner pre­ scribed by regulat ions under the Conveyancing Act, 1919- 1930.

2 4 .     (1) If any lessor or lessee is a t rus tee—

(a)	he shall not be deemed guilty of any breach of t rus t by reason only of his bona fide fai lure to make an applicat ion under section sixteen of this Ac t ;
(b)	he shall not be deemed guilty of any breach of t r u s t by reason only of his agreeing to a reduc­ t ion or increase of the ren t payable unde r any
lease forming p a r t of the t r u s t e s t a t e ; and
(c)

the court in making any order as to costs shall (2) I n this section " t rus tee " includes legal

represen ta t ive of a deceased person, committee of the es ta te of an insane person, manage r of the es ta te of an incapable person, the Master in Lunacy, the Mas te r in Equi ty , d i rector of a company, and any other person act ing in any fiduciary capacity.

P A R T IV.

MISCELLANEOUS.

2 5 . The Landlord and Tenan t Act of 1899 is

amended—

(a) by omitting from subsection two of section twenty- three the proviso inser ted there in by the Landlord and Tenan t Amendment (Dis t ress Abolit ion) Act. 1930, and amended by sub­ section one of section eight of the Ejec tments Pos tponement Act, 1931;

(b)

(b) by omitting section twenty-four as inserted by the Ejec tments Pos tponement Act, 1931, and by- inser t ing in lieu thereof the following sec­ tion :—

24. The just ices by whom such adjudication i i made may postpone the issuing of such war­ r a n t and other proceedings under such adjudica­ tion, or suspend the execution of such w a r r a n t and other proceedings for any per iod not exceeding one month from the day- of such adjudication, e i ther upon such t e rms as to securi ty or otherwise or absolutely without imposing any te rms as to such just ices seems meet.

2G. The Landlord and Tenan t Amendment (Dis t ress

Abolition) Act, 1930, is amended by omit t ing subpara­

g r a p h one of p a r a g r a p h (a) of section three.

2 7 . (1) The Governor may make regula t ions not

inconsistent with this Act prescr ib ing all m a t t e r s which by this Act are required or pe rmi t t ed to be prescribed, or which a re necessary or convenient to be prescribed, in order to give effect to this Act.

Wi thou t l imiting the genera l i ty of the foregoing

provisions of this section the regula t ions may- prescr ibe the forms to be used and the fees to be pa id in con­ nection with appl icat ions to the court under this Act.

(2) The regulat ions shall—

(a) be published in the Gazet te ;

(b)	take effect from the date of publication, or from such la te r date as is specified in the
regu la t ions ;
(c) be laid before both Houses of	Pa r l i amen t

within fourteen s i t t ing days af ter the publica­ tion thereof, if P a r l i a m e n t is then in session, and if not, then within fourteen s i t t ing days af ter the commencement of the next session.

(3) If e i ther House of Pa r l i amen t passes a reso­ lution of which notice has been given a t any t ime within fifteen s i t t ing days af ter such regula t ions have been laid before such House disallowing any regulat ion or p a r t

thereof, such regulat ion or p a r t shall thereirpon cease to
have effect.

2 8 . The provisions of Par ts I I and I I I of this Act J shall cease to have effect upon the thirty-first day of • December, one thousand nine hundred and thirty-five.

.SCHEDULE i

Ni>. nf Act. Short title. Extent of repeal.

.. . ^

No. 30, lil'-il... Ejectments Postponement Act, The whole Act.

1931.

No. 2(i, 1932... Ejectments Postponement (Amend- The whole Act.

ment) Act, 19:52.

No. 18, 1899 ... Landlord and Tenant Act of 1899 ] So much of section twenty-three as was inserted by suhscction one of section eight

j of the Eject-

ments Post-

ponement Act, 1931, and sec-

tion	twenty-
four.

i i