National Security (Landlord and Tenant) Regulations (Amendment) (Cth)

STATUTORY RULES.

1947. No. 31.

 

REGULATIONS UNDER THE DEFENCE (TRANSITIONAL PROVISIONS) ACT 1946.*

I, THE ADMINISTRATOR of the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Defence (Transitional Provisions) Act 1946.

Dated this first day of March, 1947.

(sgd) W. DUGAN

Administrator.

By His Excellency’s Command,

for and on behalf of the Minister of State for Post-war Reconstruction.

 

Amendments of the National Security (Landlord and Tenant)

Regulations. 

Commencement.

1. These Regulations shall come into operation on the fourteenth day of March, 1947.

Interpretation.

2. In these Regulations, any reference to a regulation shall be read as a reference to a regulation contained in the National Security (Landlord and Tenant) Regulations as in force immediately prior to the commencement of these Regulations.

Saving.

3. Notwithstanding the amendments made by these Regulations, all proceedings by a lessor for the recovery of prescribed premises (or of goods leased therewith), or for the ejectment of a lessee from prescribed premises, pending at the commencement of these Regulations may be continued as if those amendments had not been made.

4. After regulation 5a the following regulation is inserted:—

Crown not bound.

“6. These Regulations shall not bind—

(a) the Crown in right of the Commonwealth or of a State; or

(b) any Housing Commission or similar body constituted under the law of a State.”.

5. Regulations 15, 15a and 15b are repealed and the following regulations inserted in their stead:—

Rent of prescribed premises.

“15.—(1.) Except in the case of premises which were not in existence or were not leased on the prescribed date—

(a) the rent payable by the lessee of any prescribed premises (or of prescribed premises together with goods) in any part of the Commonwealth other than the State of South

 

* Notified in the Commonwealth Gazette on  , 1947.

  Being the Regulations having that title as in force under the Defence (Transitional Provisions) Act 1946. The Regulations under the National Security Act 1939-1946 having the corresponding title comprise Statutory Rules 1945, No. 97, as amended by Statutory Rules 1945, No. 155, and 1946, Nos. 4, 48, 98, 185 and 186.

974.—Price .  40/27.2.1947.

 

Australia or the State of Western Australia shall not, in respect of any period after the commencement of this regulation and notwithstanding any term or covenant in any lease in force at any time after the commencement of this regulation, exceed the rent payable in respect of the prescribed premises at the prescribed date (including the rent of any goods then leased therewith and the charge for any service then provided in connexion with the lease); and

(b)the rent payable by the lessee of any prescribed premises (or of prescribed premises together with goods) in the State of South Australia or the State of Western Australia shall not, in respect of any period after the date of publication in the Gazette of any order under sub-regulation (3.) of regulation 7 of these Regulations in respect of the State in which the prescribed premises are situated and notwithstanding any term or covenant in any lease in force at any time after that date, exceed the rent payable in respect of the prescribed premises at the prescribed date (including the rent of any goods then leased therewith and the charge for any service then provided in connexion with the lease).

“(2.) The rent payable by the lessee of any prescribed premises in any part of the Commonwealth other than the State of South Australia or the State of Western Australia which were not in existence, or were not leased, on the prescribed date but were leased on the first day of March, 1945, or by the lessee of any such premises together with goods leased therewith, shall not, in respect of any period after the commencement of this regulation, and notwithstanding any term or covenant in any lease in force at any time after the commencement of this regulation, exceed the rent payable in respect of the prescribed premises at the first day of March, 1945 (including the rent of any goods then leased therewith and the charge for any service then provided in connexion with the lease).

“(3.) Nothing in this regulation shall affect the operation of any determination.

“(4.) Until any rent fixed by virtue of sub-regulation (1.) or (2.) of this regulation is increased or decreased by a determination, the rent so fixed shall be the fair rent of the prescribed premises (or of the prescribed premises together with goods) in respect of which it is so fixed, notwithstanding any alterations, additions, repairs or renovations to the prescribed premises (whether structural or otherwise) or any change of ownership or tenancy or in the nature or value of the services supplied by the lessor or in the goods leased with the premises.

Lessors may be required to furnish statutory declarations as to rent.

“15a.—(1.) Where the rent of any prescribed premises (or of prescribed premises together with goods) is fixed by virtue of sub-regulation (1.) or (2.) of the last preceding regulation, the lessee may, if the lessor of the premises was the lessor on the prescribed date, or on the first day of March, 1945, as the case may be, by notice require the lessor to furnish him with a statutory declaration as to the rent of the prescribed premises (or of the prescribed premises together with goods) on that date, and the lessor shall furnish a statutory declaration accordingly within seven days after the receipt by him of the notice.

 

“(2.) Where any lessor is a body (whether corporate or unincorporate), any declaration which that lessor is required to furnish under the last preceding sub-regulation shall be made by some officer or member of the body having knowledge of the facts.

Application of Division.

“15b. Where in any State or Territory the powers conferred by these Regulations on the Controller or a Fair Rents Board may be exercised in relation to certain prescribed premises (including goods leased therewith) only, or to a limited class of prescribed premises (including goods leased therewith) only, the provisions of this Division shall apply, in that State or Territory, to those prescribed premises (including goods leased therewith) only, or to that limited class of prescribed premises (including goods leased therewith) only”.

6. Regulation 21 is repealed and the following regulation inserted in its stead:—

Effect of determination.

“21. Where any fair rent has been determined by the Controller it shall, as from the date fixed under the last preceding regulation and until varied in pursuance of this Division, be the rent of the premises, or of the premises together with goods leased therewith, in respect of which it is fixed.”.

7. Regulation 24 is repealed and the following regulation inserted in its stead:—

Lease of prescribed premises together with goods.

“24.—(1.) This Division shall extend in relation to prescribed premises together with goods leased therewith, and any reference in this Division to prescribed premises shall, so far as applicable, include a reference to prescribed premises together with goods leased therewith.

“(2.) In the case of prescribed premises which are leased together with goods, the Controller may fix the fair rent of the prescribed premises irrespective of the goods or may, in his discretion, fix the fair rent of the prescribed premises together with goods leased therewith.”.

Determination of rent of shared accommodation

8. Regulation 25 is amended by inserting in sub-regulation (9.), after the word “accommodation”, the words “, or of the shared accommodation together with goods leased therewith,”.

9. After regulation 25 the following regulation is inserted:—

Variation in arrangement of shared accommodation to be notified.

“26. Where, after the fair rent of any shared accommodation has been determined (whether before or after the commencement of this regulation)—

(a) any part of the shared accommodation is leased separately;

(b)the whole or any part of the shared accommodation is leased as part of other shared accommodation; or

(c) the shared accommodation is leased—

(i) without the use of any convenience or service which was available to the tenant at the time when the determination was made; or

(ii) with the use of any convenience or service which was not so available,

the lessor shall, within seven days, notify the fact in writing to the Controller, giving full particulars of the new lease, including particulars of the rent and charges payable.”.

974.—2

10. Regulation 29 is repealed and the following regulation inserted in its stead:—

Rent of shared accommodation and goods leased therewith.

“29.—(1.) This Division shall extend in relation to shared accommodation together with goods leased therewith, and any reference in this Division to shared accommodation shall, so far as applicable, include a reference to shared accommodation together with goods leased therewith.

“(2.) In the case of shared accommodation which is leased together with goods, the Controller may determine the fair rent of the shared accommodation irrespective of the goods or may, in his discretion, determine the fair rent of the shared accommodation together with goods leased therewith.”.

Procedure on appeal.

11. Regulation 29bis amended by inserting in sub-regulation (4.), after the word “premises”, the words or of the premises together with goods leased therewith,”.

Effect of determination.

12. Regulation 31 is amended—

(a) by omitting from sub-regulation (1.) the word “the” (second occurring);

(b) by inserting in sub-regulation (2.), after paragraph (a), the following paragraph:—

“(aa) increased outgoings or losses have been or will be incurred by the lessor by reason of the use made by the lessee of the premises since the date of the determination;”; and

(c) by inserting in sub-regulation (3.), after the word’ “premises”, the words “, or of any prescribed premises together with goods leased therewith,”.

13. After regulation 31 the following regulation is inserted:—

Lessor to notify change in services supplied or in nature of occupancy.

“31a.—(1.) Where the fair rent of any prescribed premises or shared accommodation has been determined (whether before or after the commencement of this regulation), the lessor shall give notice in writing to the Controller of—

(a)the nature and extent of any services, not supplied at the date of the determination, which he commences to supply to any lessee; and

(b)the fact that the prescribed premises cease or the shared accommodation ceases to be occupied by a lessee and become or becomes occupied by a lodger.

“(2.) A notice under this regulation shall be given within seven days after the matter required to be notified arises.”.

Premises not to be let at rent exceeding fair rent.

14. Regulation 32 is amended by omitting sub-regulation (l.) and inserting in its stead the following sub-regulations:—

“(1.) A person shall not—

(a)let premises, or premises together with goods, at a rent exceeding the fair rent thereof; or

(b) demand, receive or pay any sum as rent exceeding the fair rent thereof.

“(1a.) The legal remedies for the enforcement of any covenant or agreement—

(a) to pay rent for premises, or for premises together with goods, exceeding the fair rent thereof; or

(b) which, directly or indirectly, would secure to any person the payment of rent or of money in respect of the occupation of premises, or of the occupation of premises and the use of goods leased therewith, so that the amount received by the person would exceed the fair rent thereof,

shall be limited to the enforcement of payment of the fair rent thereof.

“(1b.) Any sum paid as rent—

(a) for, or in respect of the occupation of, premises; or

(b) for, or in respect of, the occupation of premises and the use of goods leased therewith,

exceeding the fair rent thereof, shall, to the extent of the excess, be recoverable in an action for debt in any court of competent jurisdiction by the lessee from the lessor to whom it was paid.”.

Certain payments prohibited.

15. Regulation 33 is amended—

(a) by inserting in paragraph (a)of sub-regulation (1.), before the word “in” (first occurring), the words “, or require the purchase or exchange of any goods or goodwill,”;

(b) by omitting from paragraph (b) the words “a dwelling-house” (twice occurring) and inserting in their stead the words “any prescribed premises (including any dwelling-house)”; and

(c) by adding at the end thereof the following sub-regulation:—

“(3.) Where a person has, in contravention of this regulation, been required to purchase or exchange any goods or goodwill, he may recover in any court of competent jurisdiction, from the person guilty of the contravention, so much of any amount paid, in accordance with the requirement, 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 has exchanged over the fair value of the goods which he has received in exchange.”.

16. Regulation 34 is repealed and the following regulation inserted in its stead:—

Certain representations, &c., prohibited.

“34.—(1.) A person shall not make any representation, or do any other act, whereby a person is informed, either expressly or by implication, that, upon the purchase or exchange of any goods, or goodwill, he will or may receive or obtain, or be entitled to receive or obtain, the grant, transfer, assignment, renewal or extension of a lease, or consent to a sub-lease, of any prescribed premises (including any dwelling-house).

“(2.) In any prosecution for a contravention of this regulation, it shall be a defence if the defendant proves that—

(a) at the time of the representation or act, he specified a price for the purchase, and that the price so specified was not unreasonable; or

(b) that the proposed exchange was not unfair.”.

Contempt of Board.

17. Regulation 46 is amended by omitting sub-regulation (2.) and inserting in its stead the following sub-regulation:—

“(2.) The Magistrate constituting a Fair Rents Board shall, in relation to any contravention of the last preceding sub-regulation committed in the face of the Board, have all the powers of a court of summary jurisdiction sitting in open court in relation to a contempt committed in the face of the court.”.

Records of rent.

18. Regulation 51 is amended by adding at the end thereof the following sub-regulation:—

“(5.) A request under this regulation may be made orally or in writing”.

19. Regulations 55 and 56 are repealed and the following regulations inserted in their stead:—

Service of notices.

“55.—(1.) Any notice or other document required or permitted by this Part to be given to, or served upon, any person, may be given or served—

(a) by delivering the notice or other document to him personally; or

(b) by forwarding the same by post in a pre-paid letter addressed to him at his usual or last-known place of abode or business or at any address notified to the Board or the Controller as the address at which notices may be given to or served upon him.

“(2.) Any notice or other document required or permitted by this Part to be given to, or served upon, the Controller may be given or served by leaving the same at the office of the Controller with some person apparently employed thereat or by sending the same by post in a pre-paid letter addressed to the Controller.

“(3.) Where any notice or other document is required or permitted by this Part to be given to, or served upon, a person whose address is unknown, it may be given or served by publishing it in the Gazette and in a daily newspaper circulating in the district in which the prescribed premises concerned are situated.

Service upon agent sufficient.

“56.—(1.) Any notice or other document required or permitted by this Part to be given to, or served upon, a lessor under the lease of any prescribed premises shall be deemed to have been duly given or served if it is given to, or served upon, the person to whom the rent payable under the lease is customarily paid.

(2.) Any notice or other document required or permitted by this Part to be given to, or served upon, a lessee under the lease of any prescribed premises shall be deemed to have been duly given or served if it is given to, or served upon, the person by whom the rent payable under the lease is customarily paid.

“(3.) If two or more persons are lessors or lessees under any lease of any prescribed premises, it shall be a sufficient compliance with any provision of this Part requiring or permitting any notice or other document to be given to, or served upon, the lessors or lessees if the notice is given to, or served upon, any one of the lessors or lessees.”.

Courts may order refund of amounts overpaid.

20. Regulation 57 is amended by adding at the end thereof the following sub-regulations:—

“(2.) Where a court proposes to make an order under this regulation against a convicted person, the court may hear evidence tending

 

to show that the contravention of which the person has been convicted was part of a course of conduct in contravention of this Part, and evidence to the contrary, and may, if it sees fit, include in the order any amounts which appear to the court to have been received by or paid to the person in contravention of this Part as part of that course of conduct.

“(3.) Without prejudice to the operation of sub-regulation (1.) of this regulation, where a court has made an order under this regulation, a certificate under the hand of the clerk or other appropriate officer of the court, specifying the amount ordered to be refunded and the person by whom and the person to whom the amount is payable, may be filed in any court having civil jurisdiction to the extent of that amount, and shall thereupon be enforceable in all respects as a final judgment of that court.

“(4.) So much only of the amount ordered to be refunded as has not already been refunded or recovered may be recovered by either of the methods specified in this regulation.”

Restriction on eviction.

21. Regulation 58 is amended—

(a) by omitting from sub-regulation (3.) the word “tenant” and inserting in its stead the word “lessee”;

(b) by omitting from paragraph (k) of sub-regulation (5.) the word “or” (last occurring); and

(c) by adding at the end thereof the following paragraphs and sub-regulations:—

“(m) that the lessee has become the lessee of the premises by virtue of an assignment or transfer which the lessor has not consented to or approved; or

(n) that the lessee has sub-let the premises or some part thereof by a sub-lease which has not been consented to or approved by the lessor.

“(6.) In the last preceding sub-regulation, unless the contrary intention appears, ‘lessor’ includes, where there is more than one lessor, any one or more of the lessors, and ‘lessee’ includes, where there is more than one lessee, any one or more of the lessees.

“(7.) Notice to quit on a ground specified in paragraph (m) or (n) of sub-regulation (5.) of this regulation—

(a) shall not be given—

(i) where the lessee became the lessee by virtue of an assignment or transfer made before the commencement of that paragraph, or the sub-lease was granted before that commencement;

(ii) where the lease is for a fixed term—unless that term has expired; or

(iii) in the case of a periodic lease—unless the period which was current at the date on which the assignment, transfer or sub-lease took effect has expired; and

 

(b)may be given whether or not the assignment, transfer or sub-lease was in breach of any covenant or condition.”.

Period of notice to quit.

22. Regulation 59 is amended by omitting from sub-paragraph (ii) of paragraph (a) of sub-regulation (2.) the word “sixty” and inserting in its stead the word “thirty”.

23. Regulation 60 is repealed and the following regulations are inserted in its stead:—

Notice to quit not to be given within six months after determination.

“60. A lessor shall not, after the lessee has made an application for a determination, or after he has received from the Controller notice of his intention to determine the fair rent, except with the consent of the Controller, give a notice to quit on any ground specified in paragraph (f), (g), (h), (i), (j) or (k) sub-regulation (5.) of regulation 58 of these Regulations until after the expiration of six months after the making of a determination on the application or in pursuance of the notice, but if a determination has not been made within a period of six months after the date of the application, or (if no application has been made) within a period of six months after receipt of the notice of intention, as the case may be, such a notice to quit may be given after the expiration of that period.

Notice to quit where dwelling-house sold.

“60a.—(1.) A person who becomes the lessor of prescribed premises, being a dwelling-house or part of a dwelling-house, by purchase thereof (otherwise than in pursuance of a contract entered into before the commencement of this regulation), shall not, within a period of six months after the date of the agreement for the purchase, give a notice to quit on the ground specified in paragraph (g)of sub-regulation (5.) of regulation 58 of these Regulations to any person who was a lessee of the prescribed premises at the date of the agreement for the purchase.

“(2.) A lessor of prescribed premises, being a dwelling-house or part thereof, shall not give a notice to quit on the ground specified in paragraph (k)of sub-regulation (5.) of regulation 58 of these Regulations to any person who was a lessee of the prescribed premises at the date of the agreement referred to in that paragraph (being an agreement made after the commencement of this regulation) within a period of six months after the date of the agreement.”.

24. After regulation 62 the following regulations are inserted:—

Notice to quit after failure of eviction proceedings.

“62a.—(1.) Where a lessor has taken proceedings in any court to recover possession of any prescribed premises from the lessee or for the ejectment of the lessee therefrom and the court has (whether before or after the commencement of this regulation) refused to make an order in favour of the lessor, the lessor shall not give to the lessee any notice to quit (whether on the same ground as a previous notice to quit or on some other ground) within six months after the decision of the court unless he has first obtained the leave of a court having jurisdiction under this Part so to do.

“(2.) Where a court refuses to make an order in favour of a lessor it may, at the same time, grant leave for the purposes of this regulation.

Competent courts.

“62b.—(1.) For the purposes of regulation 58 of these Regulations, the following courts only shall be courts of competent jurisdiction:—

(a) in the States of New South Wales, Victoria, Queensland and Tasmania and in the Australian Capital Territory—courts of summary jurisdiction; and

(b)in the States of South Australia and Western Australia and in the Northern Territory—Local Courts.

“(2.) Each court of a State specified in the last preceding sub-regulation shall, subject to this Part, and within the limits of its jurisdiction (other than limits as to the value or rent of premises) be vested with federal jurisdiction in proceedings under this Part.

“(3.) The last preceding sub-regulation shall operate to vest a court of a State with federal jurisdiction notwithstanding that, under the law of that State, the jurisdiction of that court in proceedings for the recovery of possession of premises from a lessee, or for the ejectment of a lessee from premises, is dependent upon the lessor having the right to possession of the premises.

“(4.) Each court of a Territory specified in sub-regulation (1.) of this regulation shall, subject to this Part, and within the limits of its jurisdiction (other than limits as to the value or rent of premises), have jurisdiction in proceedings under this Part.

“(5.) The jurisdiction of a court under this regulation shall not be exercised except by a Police, Stipendiary or Special Magistrate.”.

Court to consider hardship.

25. Regulation 63 is amended by adding at the end thereof the following sub-regulations:—

“(2.) Where the application is made on either of the grounds specified in paragraphs (m) and (n)of sub-regulation (5.) of regulation 58 of these Regulations, the court shall not refuse, in the exercise of the discretion vested in it by the last preceding sub-regulation, to make the order unless the court is satisfied—

(a) that special circumstances exist by reason of which the order should not be made; or

(b)without limiting the generality of the last preceding paragraph, in a case where the ground specified in paragraph (n)applies, that the sub-letting was in the course of a business of sub-letting carried on by the lessee.

“(3.) On the hearing of an application specified in the last preceding sub-regulation, any assignee, sub-lessee or person in occupation of the prescribed premises or any part thereof shall be entitled to be heard.”.

26. After regulation 65 the following regulation is inserted:—

Appeals.

“65a.—(1.) Except as provided in this regulation, there shall be no appeal (other than an appeal to the High Court), in proceedings under this Part, from a judgment or order of a court of competent jurisdiction referred to in regulation 62b of these Regulations.

“(2.) There shall be an appeal, as to questions of law only, to the Supreme Court of the State or Territory concerned from any judgment or order of a court in proceedings under this Part.

“(3.) The Supreme Courts of the several States shall be invested with federal jurisdiction, and the Supreme Courts of the Australian Capital Territory and the Northern Territory shall have jurisdiction, to hear appeals under this regulation.”.

 

Protection of sub-lessees.

27. Regulation 73 is amended by omitting sub-regulation (1.) and inserting in its stead the following sub-regulations:—

“(1.) Where—

(a) a lessor has consented to or approved a sub-lease of any prescribed premises or any part thereof by the lessee, or a lessee has sub-let any prescribed premises or any part thereof in the course of a business of sub-letting carried on by the lessee; and

(b) the lessee ceases to be in possession of the premises, following upon—

(i) the obtaining of an order by the lessor for the recovery of possession of the premises from the lessee or for the ejectment of the lessee from the premises on any of the grounds specified in paragraphs (a) to (f) of sub-regulation (5.) of regulation 58 of these Regulations; or

(ii) the surrender of his lease by the lessee,

the sub-lessee shall (if he is in possession of the whole or portion of the prescribed premises sub-let to him) be deemed to become the lessee thereof from the lessor upon the same terms and conditions, as the terms and conditions of the sub-lease, as in force immediately prior to—

(c) the date on which the lessor gave notice to quit to the lessee; or

(d) the date on which the lessee notified the lessor of his intention to surrender the lease (or, if he did not so notify the lessor, the date on which the lessee surrendered the lease),

as the case may be.

“(1a.) In a case to which sub-paragraph (i) of paragraph (b)of the last preceding sub-regulation applies, the order shall not be enforced against the sub-lessee.”.

Jurisdiction of courts.

28. Regulation 77 is repealed.

29. Regulation 83 is repealed and the following regulation inserted in its stead:—

Information to be furnished on request.

“83.—(1.) The Controller or an authorized officer may require a person—

(a)to furnish to the person making the requirement such information as that person requires;

(b) to answer any question put to him by that person; or

(c) to produce any books, documents or writings in his custody or control,

in relation to any matter arising under these Regulations.

“(2.) A person shall not, when so required—

(a) refuse or fail to furnish the information or to answer the question or to produce the books, documents or writings; or

(b) give any information or make any answer which is false in any particular.

 

“(3.) A person shall not be obliged to furnish any information or to answer any question or to produce any books, documents or writings under this regulation unless he has first been informed by the person making the requirement that he is required and is obliged, by virtue of this regulation, to furnish the information or to answer the question or to produce the books, documents or writings.

“(4.) A person shall be deemed to have failed to furnish information, or to produce books, documents or writings, required of him under this regulation if he does not furnish the information or produce the books, documents or writings—

(a)in the case of a requirement in writings—within fourteen days after receipt by him of the requirement; or

(b)in the case of an oral requirement—within fourteen days after the day upon which the requirement is made.

“(5.) A requirement under this regulation may be served by post on the person on whom it is made at his last-known place of abode or business”.

 

By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.