National Security (War Service Moratorium) Regulations (Cth)

STATUTORY RULES.

1940. No. 194.

REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939-1940.*

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the National Security Act 1939-1940.

Dated this tenth day of September, 1940.

(SGD.) GOWRIE,

Governor-General.

By His Excellency’s Command,

(Sgd.) W. M. HUGHES.

for and on behalf of the Minister of State for Defence Co-ordination.

 

NATIONAL SECURITY (WAR SERVICE MORATORIUM) REGULATIONS.

Part I.—Preliminary.

Short title.

1. These Regulations may be cited as the National Security (War Service Moratorium) Regulations.

Parts.

2. These Regulations are divided into Parts, as follows:—

Part I.—Preliminary.

Part II.—Provisions relating to Mortgages and Agreements for the Purchase of Land.

Part III.—Prohibition or Suspension of Proceedings.

Part IV.—Provisions relating to Rent.

Part V.—Miscellaneous.

Repeal of National Security (Courts Emergency Powers) Regulations.

3. The National Security (Courts Emergency Powers) Regulations (being Statutory Rules 1939, No. 165, as amended by Statutory Rules 1940, No. 9) are repealed.

Definitions.

4. In these Regulations, unless the contrary intention appears—

“farming or dairying pursuits” includes agriculture, fruit-growing, bee-farming, poultry-farming, stock-raising, or any kindred pursuit;

 

* Notified in the Commonwealth Gazette on  , 1940.

4670.—6/6.9.1940.—Price 8d

 

“female dependant of a member” means a female who is wholly or partly dependent for her support upon the pay of, or upon a pension payable in consequence of the incapacity or death of, a person who is or has been a member of the Forces, and includes the wife of a person who has been a member of the Forces but who, having been discharged without receiving a pension, is receiving from the Commonwealth medical treatment of such a nature as to prevent him either wholly or partly from engaging in his occupation;

“land” includes messuages, tenements, and hereditaments, and houses and buildings, and also includes any estate or interest in land (legal or equitable), and any easement, right, power or privilege over, in, or in connexion with land;

“member of the Forces” means a member of the Commonwealth Naval, Military or Air Forces engaged on war service;

“mortgage” means a mortgage (legal or equitable) of land;

“parent of a member” means a parent of a person who is, or has been, a member of the Forces who is wholly or partly dependent for his support on the pay or pension of that person, and includes a parent of a person who has been a member of the Forces but who, having been discharged without receiving a pension, is receiving from the Commonwealth medical treatment of such a nature as to prevent him either wholly or partly from engaging in his occupation, and upon whose pay that parent was, immediately prior to the discharge of that person, wholly or partly dependent for his support;

“war service” means—

(a) the service of a member of the Citizen Forces when called out for war service in pursuance of the Defence Act 1903-1939, or during continuous training under that Act or the Naval Defence Act 1910-1934, or the Air Force Act 1923-1939;

(b)the continuous service under any of those Acts of any person who volunteers and is accepted for such service during the present war;

(c)the service during the war of such other members or classes of members of the Naval, Military or Air Forces (not being members of the Citizen Forces) as the Minister specifies by order published in the Gazette.

Regulations to bind the Crown.

5. These Regulations shall bind the Crown in right of the Commonwealth or of any State.

Part II.—Provisions Relating to Mortgages and Agreements for the Purchase of Land.

Postponement of due date of principal secured by mortgage and purchase money under agreement for purchase of land.

6.—(1.) Subject to these Regulations, where a member of the Forces or a female dependant of a member is liable—

(a) to pay the principal money secured by a mortgage and that liability arose before the date on which the member first became engaged on war service; or

(b) to pay the whole or any instalment of the purchase money under an agreement for the purchase of land entered into by the member or female dependant of a member before the date on which the member first became engaged on war service,

the time for payment of that principal money or purchase money is hereby postponed so that the payment shall fall due upon the expiration of the period of six months after the date on which it fell due, or would fall due if these Regulations had not been made, or upon the expiration of six months after His Majesty ceases to be engaged in war, or upon the expiration of six months after the date on which the member ceases to be engaged on war service, or after his death before that date, whichever last happens.

(2.) Where the member of the Forces has been engaged on war service in Australia only, the postponement provided by this regulation shall cease at the expiration of a period immediately following the date upon which the member ceased to be engaged on war service equal in duration to the period during which he was so engaged, or at the expiration of the period of six months immediately following that date, whichever period is the shorter.

(3.) The application of this regulation shall extend to all payments of principal money and purchase money due after the date on which the member first became engaged on war service, but not paid at the commencement of these Regulations, and in respect of which a power of sale has not been exercised before the commencement of these Regulations.

(4.) This regulation shall not apply to any amount payable as interest, and when any payment includes interest as well as principal, and the rate of interest is not ascertainable from the mortgage or agreement or the mortgage or agreement does not indicate what parts of the payment are principal and interest respectively, then, for the purpose of this regulation, the rate of interest shall be deemed to be Five pounds per centum per annum.

(5.) Nothing in this regulation shall prevent any person from paying any principal money or purchase money before the time to which payment thereof is postponed under this regulation.

Interest to be payable in respect of postponed payments.

7.—(1.) Where any payment of principal money or purchase money is postponed under these Regulations, interest shall be payable thereon until payment thereof is made, at the rate agreed upon by the parties before the interest falls due, or at the rate which would have been applicable if the payment had been made on the date when it would have been due if these Regulations had not been made, whichever is the lower rate:

Provided that, if the rate of interest payable under any mortgage or agreement is thereby fixed by reference to rates current in the case of some specified class of transactions at the times when the sums of interest respectively fall due or are paid (as the case may be), the rate payable by virtue of this regulation shall, at the option of the mortgagee or vendor, be as so fixed or as fixed by this regulation, but so that the rate shall not in any case exceed Five pounds five shillings per centum per annum.

(2.) Interest payable by virtue of this regulation shall be payable at the close of the same intervals of time as are provided by the mortgage or agreement with respect to the interest payable thereunder, or, if no provision is so made, then quarterly.

(3.) In the case of a payment which fell due on or before the date of commencement of these Regulations, the period of postponement shall, for the purposes of this regulation, be deemed to have commenced on the day immediately following that date.

When one instalment postponed, subsequent instalments to be postponed for like periods.

8. When, under any mortgage or agreement to which these Regulations apply, the principal or purchase-money is to be repaid or paid by instalments, and the payment of any of those instalments is postponed, then the times when the subsequent instalments respectively fall due shall each be postponed for a period equal to the period of postponement of the first-mentioned instalment.

Proceedings stayed, but rights not otherwise prejudiced.

9.—(1.) These Regulations shall operate as a stay of all proceedings, whether by action or any other means and whether in any court or otherwise, commenced before the date of commencement of these Regulations to enforce the payment, or in respect or in consequence of the non-payment of, any principal or purchase-money to which regulation 6 of these Regulations applies, and of all remedies for the recovery thereof, but shall not otherwise prejudice or affect any such proceeding or remedy, or alter or affect the rights or obligations of any person, except so far as is necessary to give effect to the provisions of these Regulations.

(2.) Upon the termination of the postponement effected by these Regulations, all proceedings so stayed may be continued, and all such remedies may be pursued as if the period of postponement had not intervened.

Provision for cases of hardship.

10.—(1.) The appropriate court may order that the provisions of this Part of these Regulations shall not apply in relation to any mortgage or agreement if it is of opinion that, in the special circumstances of the case, the postponement effected by those provisions is not necessary in the interests of the member of the Forces or female dependant of a member concerned, or would cause hardship or loss to the mortgagee or vendor, as the case may be, or to any person towards whom, with respect to that mortgage or agreement, the mortgagee or vendor stands in the position of a trustee.

(2.) An application for an order under this regulation shall be made with notice to such persons as the court considers entitled thereto, or ex parte in any case in which by reason of special circumstances, the court considers that procedure to be just and equitable.

(3.) The court may make all such interlocutory and final orders in the matter of any such application, including orders as to costs, as, having regard to the objects of these Regulations and the circumstances of the case, the court considers to be just and equitable.

(4.) The costs of any such application shall be borne by the applicant unless the court orders otherwise.

(5.) The order of the court determining any application under this regulation shall be final, and no order, whether interlocutory or final, in the matter of any such application, and no other proceeding under this regulation, shall be appealed against, questioned or reviewed in any manner whatsoever or be restrained or removed by prohibition, injunction, certiorari or otherwise howsoever.

(6.) In this regulation, “the appropriate court” means—

(a)in relation to a mortgage or agreement the amount of principal or purchase money outstanding under which does not exceed Five hundred pounds—a District Court, County Court or Local Court of Full Jurisdiction in the State or Territory in which the land the subject of the mortgage or agreement is situated, or, if there is no such court, the High Court, or the Supreme Court or Central Court of the State or Territory in which that land is situated; and

(b)in any other case—the High Court, or the Supreme Court or Central Court of the State or Territory in which the land the subject of the mortgage or agreement is situated.

Certain contracts and instruments not affected.

11. These Regulations shall not be held to prevent, or to alter the effect of—

(a) any contract, made after the date on which a member of the Forces commenced to be engaged on war service, concerning any mortgage or agreement to which regulation 6 of these Regulations applies; or

(b) any instrument made or thing done in pursuance of any such contract.

Mortgages and agreements to which member of Forces or female dependant is a party jointly with other person.

12. The provisions of the preceding regulations shall apply to any mortgage or agreement entered into by a member of the Forces or a female dependant of a member jointly with a person who is not a member of the Forces or a female dependant of a member in like manner as they apply to a mortgage or agreement entered into by a member of the Forces or a female dependant of a member only.

Part III.—Prohibition or Suspension of Proceedings.

Protection from distress, &c., of means of livelihood, &c., of female dependants of members of the Forces.

13.—(1.) A person shall not, under a bill of sale, or writ of execution or other process issued by a court, by way of distress, or under the provisions of a hire-purchase agreement made prior to the date on which a member of the Forces commenced to be engaged on war service, seize or take possession of—

(a)any goods which are used by any female dependant of a member to support or assist in supporting herself or any of the family of the member; or

(b)any furniture or wearing apparel belonging to any member of the Forces or female dependant of a member:

Provided that if the furniture and wearing apparel belonging to the member and his female dependants exceed in value One hundred pounds, any articles may be seized and taken possession of under due authority of law if the articles remaining are not less in value than One hundred pounds.

(2.) In this regulation., “hire-purchase agreement” includes a letting of goods with an option to purchase, an agreement for the payment for goods by instalments, and any other agreement for the purchase of goods whether or not the property in the goods passes, on delivery, to the purchaser, and any goods the subject of any hire-purchase agreement shall, for the purposes of this regulation, be deemed to belong to the purchaser.

(3.) This regulation shall not apply in relation to any goods being purchased under hire-purchase agreement—

(a) where the instalments payable in respect thereof were three months in arrears when the member of the Forces concerned commenced to be engaged on war service and have not since been paid;

(b) where any member of the Forces or female dependant of a member concerned sells or otherwise disposes of, or parts with the possession of, the goods before payment therefor has been completed; or

(c) where a court of limited civil jurisdiction (constituted by a Police, Stipendiary or Special Magistrate) declares, on application by the vendor, that it is satisfied—

(i) that any member of the Forces or a female dependant of a member concerned would not suffer any hardship if the agreement were enforced; or

(ii) that, having regard to all the circumstances of the case, it would he inequitable to the vendor to give the member and his dependants the benefit of this regulation.

(4.) In any prosecution for an offence arising under this regulation, an order may be made for the return of any goods seized or taken possession of in contravention of this regulation, or for payment of their value.

Writs and processes against members of the Forces and female dependants in certain cases not to be issued.

14.—(1.) A person shall not, without leave of the court, issue or cause to be issued, any writ or other legal process out of any court in respect of any liability of a member of the Forces, or of a female dependant of a member, under any contract or agreement (not being a contract or agreement to which the provisions of any of the preceding regulations apply) entered into prior to the sixth day of December, 1939, or the date on which the member commenced to be engaged on war service, whichever is the later, or under a judgment in respect of any such contract or agreement.

(2.) If the court is satisfied that, having regard to all the circumstances of the case, it would be inequitable to the other party to the contract or agreement to give to the member or female dependant, as the case may be, the benefit or protection of this regulation, and that it would not inflict hardship on the member or female dependant, as the case may be, the court shall grant leave to the person making the application.

(3.) An application for the leave of a court under this regulation shall be made with notice to such persons as the court considers entitled thereto, or ex parte in any case in which, by reason of special circumstances, the court considers that procedure to be just and equitable.

(4.) An application under this regulation may be disposed of in chambers.

(5.) The leave of a court under this regulation may be granted on such terms and conditions (if any) as the court thinks fit.

Continuation of protection afforded by regulations 13 and 14 in certain cases.

15. Where a member of the Forces has been engaged on war service in Australia only, the protection afforded by the last two preceding regulations in relation to that member or to a female dependant of that member shall continue until the expiration of a period immediately following the date upon which the member ceased to be engaged on war service equal in duration to the period during which he was so engaged, or until the expiration of the period of six months immediately following that date, whichever period is the shorter.

Power of superior Courts to prohibit issue of process in certain cases.

16. Where it appears to any court of a State or Territory of the Commonwealth, on motion made by or on behalf of any member of the Forces or female dependant of a member, that any writ or other legal process has been issued or is proposed to be issued out of the court in respect of any liability of any member of the Forces or female dependant of a member under any contract or agreement (not being a contract or agreement to which the provisions of any of the preceding regulations apply), and that the contract or agreement is, so far as the member or female dependant is concerned, unduly onerous, the court may make such order upon such terms and conditions as it thinks fit prohibiting or suspending the issue of the process, or, if the process has already been issued, prohibiting or suspending further proceedings in pursuance of the process.

Re-opening of transactions between members of Forces and others.

17. If in relation to any transaction it appears to the High Court or the Supreme Court or Central Court of a State or Territory of the Commonwealth (or, where the matter at issue does not exceed in value the sum of Five hundred pounds, to a County Court, District Court or Local Court of Full Jurisdiction), on application made by or on behalf of a member of the Forces or female dependant of a member, that the transaction is, so far as the member or female dependant is concerned, unduly onerous, or is such that a court of equity would give relief, the court may re-open the transaction and take an account between the member or female dependant and the other party to the transaction, and make such order as it thinks just as regards the transaction, and as regards any property affected by the transaction, and any such order shall be of full force and effect, and shall be complied with by the parties to the transaction.

Exercise of jurisdiction in Chambers.

18. Any matter arising under either of the last two preceding regulations may be disposed of in chambers.

Bankruptcy proceedings against a member of the Forces.

19. Where a bankruptcy petition has been presented against any member of the Forces, and the member of the Forces proves to the satisfaction of the court having jurisdiction in the bankruptcy that his inability to pay his debts is due to circumstances directly or indirectly attributable to his service during the war, the court may, after considering all the circumstances of the case and the position of all the parties, at any time stay the proceedings under the petition for such time and subject to such conditions as the court thinks fit.

Part IV.—Provisions Relating to Rent.

Members of Forces, and dependants and parents of members, not to be ejected from dwelling-houses and shops if rent paid.

20.—(1.) No order for the recovery of possession of any dwelling-house to which this regulation applies, or of any shop, from a member of the Forces, a parent of a member or a female dependant of a member, or for the ejectment therefrom of a tenant (being a member

 

of the Forces, a parent of a member or a female dependant of a member) shall be made so long as the tenant continues to pay the rent thereof and performs the other conditions of the tenancy, unless—

(a) the tenant has committed waste, or has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers, or the premises are reasonably required by the landlord for the occupation of himself or some person in his employ or in the employ of some tenant from him, or on some other ground which is deemed satisfactory by the court making the order; and

(b)the court is satisfied that in all the circumstances of the case and in the interests of justice it is desirable that the order for recovery or ejectment should be made.

(2.) Any member of the Forces, parent of a member or female dependant of a member may, if he or she thinks fit, require the owner of a dwelling-house to which this regulation applies which is vacant, or is about to become vacant, to let the dwelling-house to him or her at a reasonable rental, and the owner shall, unless he has reasonable cause for refusing so to do, let the dwelling-house accordingly.

(3.) In this regulation, “dwelling-house to which this regulation applies” means a house or part of a house let as a separate dwelling (or as a dwelling and shop) where the letting does not include any land other than the site of the house and a garden or other premises within the curtilage of the house and where the rateable value of the house or part of the house—

(a) if based on rental value does not exceed Seventy pounds per annum; and

(b)if based on unimproved value does not exceed Three hundred and fifty pounds.

Rental of farms by members of the Forces, parents or female dependants.

21.—(1.) The owner of any land which is leased to a member of the Forces, a parent of a member or female dependant of a member for the purpose of carrying on farming or dairying pursuits, shall not, without the leave of a Court of Summary Jurisdiction, if the rent payable does not exceed Seventy pounds per annum, or, if the rent payable exceeds Seventy pounds per annum, of a County Court, District Court of Local Court of Full Jurisdiction, in the State or Territory in which the land is situated, or if there is no such court, of the Supreme Court or Central Court of that State or Territory, increase the rent thereof, and any increase made in contravention of this regulation shall, notwithstanding any agreement to the contrary, be irrecoverable:

Provided that—

(a)where the owner incurs expenditure on the improvement of the land, or the structural alteration of any building erected on the land (not including expenditure on decoration or repairs) an increase of rent at a rate not exceeding Eight pounds per centum per annum on the amount so expended shall not be deemed to be an increase for the purposes of this regulation;

(b)any transfer to a tenant of any burden or liability previously borne by the owner shall for the purposes of this regulation be treated as an alteration of rent, and where as the

result of such a transfer the terms on which the land is held are on the whole less favorable to the tenant than the previous terms the rent shall be deemed to be increased whether or not the sum periodically payable by way of rent is increased;

(c) any increase of rent in respect of any transfer to the owner of any burden or liability previously borne by the tenant where as the result of the transfer the terms on which the land is held are on the whole more favorable to the tenant than the previous terms shall be deemed not to be an increase of rent for the purposes of this regulation; and

(d)where the owner pays the rates payable by the occupier of any land an increase of the rent of the land payable for any period shall not be deemed to be an increase for the purposes of this regulation if the amount of the increase does not exceed the increase in the amount payable by the owner in respect of the rates during the same period and for the purposes of this paragraph the expression “rates” includes water rates and charges.

(2.) A person shall not in consideration of the grant, renewal, or continuance of a tenancy of any land require from any member of the Forces, parent of a member or female dependant of a member the the payment of any fine, premium or other like sum in addition to the rent.

(3.) No order for the recovery of possession of land from a member of the Forces, a parent of a member or female dependant of a member or for the ejectment therefrom of a tenant (being a member of the Forces, a parent of a member or female dependant of a member) shall be made so long as the tenant continues to pay rent at the agreed rate as modified by this regulation and performs the other conditions of the tenancy, unless—

(a)the tenant has committed waste, or has been guilty of conduct which is a nuisance or annoyance to adjoining or neighbouring occupiers, or the premises are reasonably required by the landlord for the occupation of himself or some other person in his employ or in the employ of some tenant from him, or on some other ground which is deemed satisfactory by the court making the order; and

(b)the court is satisfied that in all the circumstances of the case and in the interests of justice it is desirable that the order for recovery or ejectment should be made.

Part V.—Miscellaneous.

Power of Registrar of Titles to require evidence.

22. The Registrar of Titles of any State or Territory of the Commonwealth may, upon submission to him of evidence of re-entry by a lessor, require such evidence as he deems necessary that the re-entry does not contravene any provision of these Regulations and may refuse to note the re-entry until evidence accordingly is submitted to him.

Purchase of furniture, &c., of members.

23.—(1.) No person shall without the written consent of a member of the Forces or of an officer thereto authorized in writing by a Minister purchase or take a bill of sale over any furniture or household effects of that member.

(2.) In this regulation, “bill of sale” includes assignment, transfer, declaration of trust without transfer and any other assurance of furniture or household effects, and also a power of attorney, authority or licence to take possession of furniture or household effects as security for any debt.

Purchase of real property of members.

24. Noperson shall, without the written consent of a member of the Forces, or of an officer thereto authorized in writing by a Minister, purchase or otherwise acquire from a person acting under a power of attorney any land belonging to that member.

Regulations not to apply in certain cases.

25.—(1.) Any person (in this regulation referred to as “the claimant”) who, in respect of any mortgage, contract, agreement, judgment, bill of sale, or writ of execution or other process, or in respect of the rental or possession of any dwelling-house, shop or land, desires to do or continue or complete the doing of any act against any person (in this regulation referred to as “the respondent”) who is residing in Australia and is not, to the knowledge of the claimant, a member of the Forces, a parent of a member or a female dependant of a member, may serve on the respondent personally or by registered letter (accompanied by an acknowledgment of delivery form (Avis de Reception)) sent to his place of abode, a notice in accordance with a form prescribed by the Attorney-General by order published in the Gazette requiring him to inform the claimantwithin fourteen days after the receipt of the notice, whether or not he is a member of the Forces, a parent of a member or a female dependant of a member.

(2.) If the respondent does not furnish to the claimant, within the period specified in the last preceding sub-regulation, a statutory declaration stating that he is a member of the Forces, a parent of a member or a female dependant of a member, then notwithstanding that the respondent is, or at any subsequent time becomes, a member of the Forces a parent of a member or a female dependant of a member, these Regulations shall not apply in respect of the doing, or continuance or completion of the doing, of the act provided the claimant commences to do, or continue or complete the doing of, the act within fourteen days after the expiration of the period specified in the last preceding sub-regulation.

Period of postponement, &c. not to be taken into account for purposes of any Statute of Limitations.

26. In calculating the time fixed by any Statute of Limitations or other Act, State Act or law of a Territory of the Commonwealth within which any action may be commenced or other remedy may be pursued, account shall not be taken of any period during which the payment of any principal money or purchase money is postponed, or during which any proceedings, or proposed proceedings, are stayed, prohibited or suspended, under these Regulations.

Regulations not to apply to trustees, &c.

27. The provisions of the preceding regulations shall not apply to or in relation to a member of the Forces or a parent or female dependant of a member in respect of any mortgage, contract, agreement, lease, tenancy, bill of sale, or liability which he has entered into, given or incurred as a trustee or in any representative capacity whatever.

Saving.

28. Nothing in these Regulations shall affect the operation of any order of a court made in pursuance of the Regulations repealed by these Regulations, and where leave has been given to any person under the Regulations so repealed to do, or to continue or complete the doing of, any act, that person may, notwithstanding anything contained in these Regulations, do, or continue or complete the doing of, that act accordingly.

 

By Authority: L. F.