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

Statutory Rules 1946, No. 186.(i)

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Commencement.

1. These Regulations shall come into operation on the thirtieth day of December, 1946.

2. After regulation 5 of the National Security (Landlord and Tenant) Regulations, the following regulation is inserted:—

Saving.

“5a.—(1.) All determinations of fair rents made prior to the commencement of this regulation shall continue to be of full force and effect but may be varied by the Controller upon application being made to him in the same manner as an application to the Controller for a determination.

“(2.) During such period as is specified by a Board in its determination, or, if no period is so specified, during the period commencing with the date of the determination and ending twelve months after that date, an application shall not be made to vary the determination, except on grounds that—

(a) by an error or omission, an injustice has been occasioned by the determination;

(b)substantial alterations or additions have been made to the premises, to the goods leased therewith or to the services supplied by the lessor since the determination was made; or

(c) the value of the premises, of the goods leased therewith or of the services supplied by the lessor has materially decreased since the determination was made.

“(3.) All applications to, and other proceedings before, a Fair Rents Board which are pending at the commencement of this regulation may be continued before, and may be determined by, the Controller, and any pending application for a determination shall be deemed to be an application to the Controller for a determination, and the provisions of these Regulations shall, so far as applicable, apply to those applications and proceedings as if they were applications to, or proceedings before, the Controller.”.

Definitions.

3. Regulation 8 of the National Security (Landlord and Tenant) Regulations is amended by omitting from the definition of “application” in sub-regulation (1.) the words “to a Fair Rents Board or”.

Constitution and abolition of Fair Rents Boards.

4. Regulation 9 of the National Security (Landlord and Tenant) Regulations is amended by omitting sub-regulation (3.) and inserting in its stead the following sub-regulation:—

“(3.) Where a Fair Rents Board is abolished, the Minister may, by order, make provision for the transfer of pending appeals before the Board to some other Fair Rents Board and pending appeals so transferred may be heard and determined by the Board to which they are transferred.”.

Powers of Controller and Fair Rents Boards.

5. Regulation 12 of the National Security (Landlord and Tenant) Regulations is amended—

(a) by omitting from sub-regulation (3.) the words “or, if the Minister so determines, by any such Magistrate and two other persons”; and

(b) by omitting sub-regulation (4.).

 

(i) Made under the National Security Act 1939-1946 on 18th December, 1946; notified in the Gazette on 19th December, 1946.

 

Exercise of powers of Fair Rents Boards.

6. Regulation 13 of the National Security (Landlord and Tenant) Regulations is repealed.

7. Division 3 of Part II. of the National Security (Landlord and Tenant) Regulations is repealed and the following Division inserted in its stead:—

“Division 3.—Rent of Prescribed Premises other than Shared Accommodation.

Application to have fair rent fixed.

“16. The lessor, or a lessee who has paid, or has offered (either to the lessor personally or to the person to whom the rent is ordinarily paid) the money payable for, all rent due and payable under the lease up to a date not earlier than twenty-eight days before the date of the application, of any prescribed premises other than shared accommodation (not being prescribed premises in relation to which the Controller is not authorized to exercise the powers conferred by this Part), or the owner of any such premises which are vacant, may apply in writing to the Controller to have the fair rent of the prescribed premises determined by the Controller.

Notice of application.

“17.—(1.) At least seven days prior to determining the fair rent of any prescribed premises other than shared accommodation, the Controller shall give notice of his intention to determine the fair rent of the prescribed premises to the lessor and lessee of the prescribed premises and to any sub-lessee thereof and, in the case of prescribed premises which are vacant, to the owner of those premises.

“(2.) Where an application is made by a mesne lessor or mesne lessee, or by a sub-lessor or a sub-lessee, the Controller shall, at least seven days prior to determining the fair rent, give notice of his intention to determine the fair rent to the superior lessor of the person by whom the application is made, and the superior lessor shall be entitled to be a party to the application.

“(3.) Where a superior lessor to whom notice is given under the last preceding sub-regulation or under this sub-regulation is himself a lessee, mesne lessee or sub-lessee, the Controller shall, at least seven days prior to determining the fair rent, give notice of his intention to determine the fair rent to the superior lessor of that person, and the superior lessor shall be entitled to be a party to the application.

“(4.) Where any prescribed premises other than shared accommodation in respect of which an application is made are the subject of a mortgage, the Controller shall, at least seven days prior to determining the fair rent, give notice of his intention to determine the fair rent to the mortgagee who shall be entitled to be a party to the application.

Determination of application.

“18.—(1.) Where an application has been made for the determination of the fair rent of any prescribed premises other than shared accommodation, the Controller may, after making such enquiries and obtaining such reports (if any) as he considers necessary, and after considering any representations made by any person whose rights may be affected by the determination, determine the fair rent of the prescribed premises.

“(2.) Subject to the next two succeeding sub-regulations, the determination shall not increase the fair rent of any dwelling-house by such an amount that the annual rental thereof would be increased by

 

more than six per centum of the sum which the Controller is satisfied was necessarily expended by the lessor since the prescribed date or since the date of the last determination of the fair rent of the dwelling-house, whichever is the later, upon the improvement or structural alteration of the dwelling-house (but not including decoration, maintenance or repairs).

“(3.) Where the Controller is of opinion, having regard to the matters specified in the next succeeding regulation, that the rent as at the prescribed date is insufficient, the determination may increase the fair rent (in addition to any other amount by which it is increased under this sub-regulation) by an amount not exceeding the amount which, in the opinion of the Controller, is the amount of the insufficiency.

“(4.) The determination may increase the fair rent if the Controller is satisfied that, by reason of an error or omission, an injustice has been occasioned by the last determination.

Matters to be considered.

“19. Subject to the last preceding regulation, in determining the fair rent the Controller shall have regard to—

(a)the capital value of the premises at the prescribed date, or, if the premises were not in existence on that date, on the date on which the erection of the premises was completed;

(b) the annual rates and insurance premiums paid in respect of the premises;

(c) the estimated annual cost of repairs, maintenance and renewals of the premises and fixtures thereon;

(d)the estimated amount of annual depreciation in the value of the premises and the estimated time per annum during which the premises may be vacant;

(e) the rents of comparable premises in the locality of the premises the subject of the application;

(f) the rate of interest charged upon overdrafts by the Commonwealth Bank of Australia;

(g) any services provided by the lessor or lessee in connexion with the lease;

(h)any obligation on the part of the lessee to effect any improvements, alterations or repairs to the premises at his own expense;

(i)the justice and merits of the case and the circumstances and conduct of the parties; and

(j)any hardship which would be caused to the lessor or lessee or any other person by the making of an order increasing or reducing the rent of the premises including (but without limiting the generality of the word “hardship”) any loss which might be imposed upon the lessor by an order fixing the rent of the premises at an amount less than the lessor’s liability under a mortgage of, or contract of sale in respect of, the premises, or under a hire purchase agreement or contract of sale in respect of any goods leased with the premises.

 

Date of operation of determination.

“20.—(1.) Every determination of the fair rent of prescribed premises other than shared accommodation made by the Controller shall come into force on a date fixed by the Controller, but the date so fixed shall not be earlier than the date of the application.

“(2.) After making any such determination, the Controller shall give notice in writing thereof, and of the date fixed as the date on which the determination shall come into force, to the lessor and lessee and to any other persons to whom notices have been given by the Controller under regulation 17 or 23 of these Regulations.

Effect of determination.

“21. Where any fair rent has been determined by the Controller he 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 in respect of which it is fixed and, where any determination is made in respect of goods leased therewith, of the goods so leased.

Premises occupied by two or more lessees, &c.

“22. Where separate portions of any prescribed premises are occupied by two or more lessees, or by a lessee or lessees and the lessor, and an application is made to determine the fair rent of any such portion, the Controller shall ascertain an amount which would, if an application were made to determine the fair rent of the whole of the premises, be the fair rent of the whole, and the proportion thereof which he deems to be a fair rent of the portion of the prescribed premises the subject of the application, and shall determine the fair rent of that portion accordingly.

Controller may determine fair rents of his own motion.

“23.—(1.) The Controller may, of his own motion, after enquiry, determine the fair rent of any prescribed premises other than shared accommodation.

“(2.) The Controller shall give to the lessor and lessee of the prescribed premises and to the other persons referred to in regulation 17 of these Regulations notice of his intention to determine the fair rent of the premises, and the notice so given to the lessor shall, for the purposes of this Division, be deemed to be an application.

“(3.) In determining the fair rent of prescribed premises under this regulation, the Controller shall have the same powers as he has in connexion with an application, and any determination made by the Controller shall have the same effect for all purposes as a determination made upon an application.

Lease of prescribed premises together with goods.

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

“(2.) On the hearing of an application to determine the fair rent of prescribed premises together with goods leased therewith, the Controller shall fix the fair rent of the prescribed premises irrespective of the goods and may also, in his discretion, fix the fair rent of the goods.

Inspection of prescribed premises.

“24a. The Controller may, if he thinks fit, cause any prescribed premises to be inspected in connexion with the determination of the fair rent of the premises.”.

Repeal of regulations 26, 27 and 28.

8. Regulations 26, 27 and 28 of the National Security (Landlord and Tenant) Regulations are repealed.

 

Rent of shared accommodation and goods leased therewith.

9. Regulation 29 of the National Security (Landlord and Tenant) Regulations is amended by omitting from sub-regulation (2.) the words “or Fair Rents Board “.

10. Before regulation 30 of the National Security (Landlord and Tenant) Regulations the following regulations are inserted in Division 5 of Part II.:—

Appeal from determination.

“29a.—(1.) The lessor or lessee of any prescribed premises, including shared accommodation, in respect of which a determination has been made under these Regulations may, within fourteen days after the giving of the notice referred to in sub-regulation (2.) of regulation 20, or in sub-regulation (8.) of regulation 25, of these Regulations, as the case may be, by a notice in writing lodged with the clerk of the Fair Rents Board nearest to the premises (or of any other Fair Rents Board if that other Board is satisfied that hardship will not be occasioned thereby to any party to the appeal), appeal to that Board from the determination of the Controller.

“(2.) The Board shall, at least seven days prior to hearing the appeal, give notice in writing of the time, date and place of the hearing of the appeal to the lessor and lessee of the premises and to any other persons to whom notices have been given by the Controller in pursuance of regulation 17 or regulation 23 of these Regulations, as the case may be.

“(3.) While any such appeal is pending, the determination of the Controller shall continue to have full force and effect.

Procedure on appeal.

“29b.—(1.) The Board shall hear the appeal and may, having regard to the matters specified in regulation 19 of these Regulations, confirm the determination of the Controller and dismiss the appeal, or may determine the fair rent at such amount as, in the opinion of the Board, is the correct fair rent of the prescribed premises.

“(2.) On the hearing of the appeal, the Board shall make a thorough investigation without regard to legal forms or solemnities, and shall not be bound by any rules of evidence, but may inform itself in such manner as it thinks fit.

“(3.) The determination of the Board shall have effect from and including the date fixed by the Controller under sub-regulation (1.) of regulation 20, or under sub-regulation (6.) of regulation 25 of these Regulations, as the case may be.

“(4.) Where any fair rent has been determined in pursuance of this regulation it shall, until varied in pursuance of this Part, be the rent of the premises in respect of which it is determined.

“(5.) The Board shall furnish a copy of its determination to the Controller.”.

Variation of order or determination.

11. Regulation 30 of the National Security (Landlord and Tenant) Regulations is amended by omitting the words “or Board”.

Effect of determination.

12. Regulation 31 of the National Security (Landlord and Tenant) Regulations is amended by omitting from sub-regulation (3.) the words “by the Board or by the Controller as the case may be” and inserting in their stead the words “under this Part”.

Certain payments prohibited.

13. Regulation 33 of the National Security (Landlord and Tenant) Regulations is amended by omitting from paragraph (a) of sub-regulation (1.) the words “a Fair Rents Board” and inserting in their stead the words “the Controller”.

 

Summoning of witnesses and production of documents.

14. Regulation 40 of the National Security (Landlord and Tenant) Regulations is amended by omitting from sub-regulation (1.) the words “the Chairman of a Fair Rents Board, or where a Board consists of a Magistrate only, that Magistrate” and inserting in their stead the words “or the Magistrate constituting a Fair Rents Board”.

Refusal to be sworn or give evidence.

15. Regulation 42 of the National Security (Landlord and Tenant) Regulations is amended by omitting the words “any member of”.

Contempt of Board.

16. Regulation 46 of the National Security (Landlord and Tenant) Regulations is amended by omitting from sub-regulation (2.) the words “Chairman of a Board, or, where a Board consists of a Magistrate, that Magistrate,” and inserting in their stead the words “Magistrate constituting a Fair Rents Board”.

17. Regulation 47 of the National Security (Landlord and Tenant) Regulations is repealed and the following regulation inserted in its stead:—

Protection of Board.

“47. The Controller and a Fair Rents Board shall, in the exercise of his or its functions under this Part, have the same protection and immunity as a Justice of the High Court.”.

Information as to fair rent.

18. Regulation 48 of the National Security (Landlord and Tenant) Regulations is amended by omitting the words “A Clerk of a Board, or the Controller, as the case may be,” and inserting in their stead the words “The Controller”.

Certificate as to fair rent.

19. Regulation 54 of the National Security (Landlord and Tenant) Regulations is amended—

(a)by omitting from sub-regulation (1.) the words “or by the Clerk of a Fair Rents Board”;

(b)by inserting after the word “determination” in that sub-regulation the words “(whether by the Controller or a Fair Rents Board)”; and

(c) by omitting from sub-regulation (2.) the words “or the Clerk of a Board”.

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

20. Regulation 60 of the National Security (Landlord and Tenant) Regulations is amended by omitting the words “Board to which application was made (or the Controller, if application was made to the Controller)” and inserting in their stead the word “Controller”.

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