Tenants, Purchasers, and Mortgagors' Relief Act 1930 (WA)

Tenants, Purchasers,

No. 45.] and Mortgagors' Relief. [1930.

TENANTS, PURCHASERS, AND MORT-

C AGORS' RELIEF.

21° GEO. V., No. XLV.

No. 45 of 1930.

AN ACT to afford relief to Tenants, Purchasers, and Mortgagors in occupation of Dwelling-houses, and for other relative purposes.

[Assented to 22nd December, 1930.]

Council and Legislative Assembly of Western Australia, inB E it enacted by the King's Most Excellent Majesty, byand with the advice and consent of the Legislative

this present Parliament assembled, and by the authority of

the same, as follows :—

Preliminary.

This Act may be cited as the Tenants, Purchasers, and Mortgagors' Relief Act, 1930, and shall come into operation

Short title. 1.

on a date to be fixed by proclamation.

Danitions. 2. (1.) In this Act, subject to the context-

" Commissioner" means a Commissioner appointed under

this Act;

"Dwelling" means a house (together with the premises appurtenant thereto) which is used as a dwelling or habitation only and not for the purpose of carrying on. or conducting any business therein, and for the purposes of this definition "house" includes any part of a house which is separately occupied as a dwell- ing, and where an occupier is entitled to the sole and exclusive use of any part of a house that part shall be deemed to be occupied separately notwithstand- ing that the occupier is entitled, to share in the use of some other part;

Tenants, Purchasers,

1930.] and Mortgagors' Relief. [No. 43.

"Landlord" means the person entitled to receive the rent

in respect of a dwelling;

"Lease" includes a tenancy agreement;

"Magistrate" means a police or resident magistrate or a

magistrate of the local court;

" Mortgage" means any deed, memorandum of mortgage, instrument or agreement whereby security for repay- ment of moneys is granted over any dwelling, and in- cludes an equitable mortgage by deposit of title deeds and any documents whereby the duration of a mort- gage is extended; and includes also an agreement for the sale of a dwelling, which has not been completed by conveyance or transfer, and under which the pur- chase money is payable by instalments, but not by way of rent;

"Mortgagor" means the person who is liable under the provisions of a mortgage or entitled to redeem it, or is the purchaser under such an agreement for sale as aforesaid-and who is in occupation of the dwelling comprised therein;

"Mortgagee" means the person entitled to the benefit of the security of any mortgage, and includes the vendor under such an agreement for sale as aforesaid;

"Tenant" means the person or persons by whom the rent in respect of a dwelling is payable, and who is in actual occupation of such dwelling.

(2.) For the purposes of this Act an agreement for sale and purchase of a dwelling, which has not been completed by conveyance or transfer, shall be deemed to be a mortgage of the dwelling to secure payment of the unpaid purchase money and interest thereon, and fulfilment of the conditions set forth in the agreement; provided that, when the purchase money (with or without interest) is made payable as or by way of rent then, for the purposes of this Act, the agreement shall be deemed to be a lease and the purchaser a tenant and the vendor a landlord.

(2.) This Act shall be construed subject to the COnstitu- Hon of the Commonwealth and the laws made thereunder, so that any of its provisions, which may be held to be inconsistent with such Constitution or laws, shall, to the extent of the in- consistency, be held to be severable from the remainder of the Act and not to affect the force or validity thereof.

Tenants, Purchasers,

No. 45.] and )llortgagors' Relief. [1930.

(1.) The Governor may appoint such Commissioners as he deems necessary for the purposes of this Act.

Appointment of 3.

Commissioners.

(2.) No person shall be qualified to be appointed a Com- missioner unless he is a judge or a magistrate.

Protection Orders on the ground of Unemployment.

Power of Com-	4.	(1.) Upon the application of any tenant a Commissioner
missioner to make

protection orders	may make a protection order in respect of the dwelling occu-
in favour of
tenants.	pied by such tenant.
(2.) No such order shall be made unless the applicant satisfies the Commissioner that, by reason of unemployment, he is unable to pay the rent accrued or accruing due in re- spect of the dwelling, and there is no immediate prospect of his becoming able to do so, and that his failure to pay any rent owing, which has become payable before the date of the application, is and was due to the same cause.

Effect of protection	5.	(1.) During the operation of the protection order
order.

(a)	no distress shall be levied in respect of any rent accrued, accruing or to accrue due by the applicant in respect of the dwelling;
(b)	no person shall re-enter the dwelling or take posses- sion thereof against the applicant. notwithstanding that the interest of the applicant in the dwelling has been determined.

The order may be filed in any court of law, and shall operate as a stay for all purposes of all proceedings in that court for the recovery of the dwelling, or to recover or enforce the payment of any rent payable by the applicant in respect thereof, and as a stay for all purposes of any judgment or order of such court for the payment by the applicant of any such rent.

(2.)

(3.)

A register of protection orders made under this Act shall be kept by the Registrar of the Supreme Court in the prescribed manner, and shall be open to inspection by the public; and for the purpose of enabling such register to be kept a Commissioner shall, forthwith after the making of any protection order by him, cause a copy thereof, certified by him, to be forwarded to the said registrar, who shall enter short particulars thereof in the register.

Tenants, Purchasers,

19301  [No. 45.

and Mortgagors' Relief.

When the lease of the dwelling contains an option of purchase thereof, the time (if any) limited for the exercise of the option shall be deemed to be extended by a period equal to the time during which any protection order is in operation in respect of the dwelling.

(4.)

(5.)

No person who is the grantee or entitled to the bene- fit of any bill of sale (within the meaning of the Bills of Sale Act, 1899) over any chattels in the dwelling, upon which, but for the protection order, the landlord could by law distrain for arrears of rent shall, by virtue of any power incident to such bill of sale, seize, remove or take possession of such chattels or any of them or otherwise deal with or dispose of the same, unless he shall first pay to the landlord the amount for which a distress for rent would be available to the land- lord under section twenty-nine of the Bills of Sale Act, 1899.

(6.)

No sheriff, bailiff, or other person acting in the ex- ecution of the process of any court shall seize or take pos- session of, or sell or otherwise dispose of, any chattels, in the dwelling, upon which, but for the protection order, the landlord might distrain for any arrears of rent, unless the person at whose instance the process has been issued shall pay to the landlord the amount for which the landlord might so distrait', subject to any limitation imposed by law on the claim of a landlord for rent in respect of goods seized or taken under process of execution.

(7.)

The person, who has paid any amount pursuant to subsection five or six, shall be deemed to be an assignee from the landlord of a portion of the landlord's claim against the tenant equal to such amount, and may enforce his claim as such assignee (but in his own name) under and subject to the provisions of section eleven of this Act and not otherwise, and that section shall apply to the claim of such person a^- cordingly.

6. (1.) Upon the application of any mortgagor, a Commis- Power of Com-

sinner may make a protection order in respect of the dwelling

troy

tor bonen of

comprised in the mortgage.

mortgagor.

(a) No such order shall be made under this section un- less the applicant satisfies the Commissioner that, by reason of unemployment, be is, and will be unable to pay the amount, whether of principal. or interest or both, payable or becoming or to become payable under the mortgage, and that his failure to pay any amount owing under the mortgage, which has be- come payable before the date of the application, is and was

due to the same cause.

Tenants, Purchasers,

No. 45.] and Mortgagors' Relief. [1930.

Effect of order in	7. (1.) During the operation of any order made under the
respect of

mortgages.

last preceding section, the mortgagee shall not enforce or seek

to enforce or proceed with the enforcement of the mortgage.

(2.) The prohibition hereinbefore contained extends to

(a)	the calling up or demand of payment from the mort- gagor of the whole or any part of the principal or interest moneys secured by the mortgage ;
(b)	the commencement or continuance of any action or proceeding for the recovery of any principal or interest moneys due under the mortgage or the enforcement of any judgment for any such moneys ;
(c)	the exercise of any power of sale ;
(d)	the obtaining or taking or keeping of possession of

the dwelling comprised in the mortgage ;

(e) the commencement or continuance of any action, proceeding or application for foreclosure, or the exercise of any power to cancel or terminate any rights of the applicant in respect of the dwelling.

(3.) In the case of an agreement for sale, if the vendor has cancelled the agreement and terminated the right of pur- chase, the Commissioner may annul the vendor's action and reinstate the agreement and the rights of the applicant there- under.

(4.) Such order as aforesaid may be filed in any court of law, and such court shall give effect thereto, in respect of any proceedings in such court, as occasion requires.

Cases in widen no	8. (1.) No order shall he made under sections four or
order is to be

made under ss. 4	six
or G.

(a)	unless the applicant satisfies the Commissioner that he has made all reasonable efforts to obtain employ- ment, and that he is and has been unable to obtain employment through no fault of his own
(b)	if the Commissioner is satisfied that the landlord or mortgagee by reason of the circumstances will suffer any undue hardship in the event of the order being made ; or

(0) if the Commissioner is satisfied that by reason of the circumstances no order should be made.

Tenants, Purchasers,

1930.] and itortgagors' Relief. [No. 45.

(2.)

On the hearing of any application under either of the said sections the Commissioner shall take into consider- ation the means and earning capacity of any member of the applicant's family who habitually resides in the dwelling.

(3.) Any protection order may be limited in its opera- tion to portion of the rent or interest for which the tenant or mortgagor is liable, and in that case the order shall not be operative in respect of the remaining portion of such rent or interest.

9.    (1.) Every such protection order as aforesaid shall, as Tartar aindrprer

hereinafter provided, remain in force for such time, not ex- 1,:igeprptectldrs." the operation of an order for any period not exceeding three

ceeding three months, as the Commissioner may direct; but a

-Months

(2.) A Commissioner may discharge any protection order

on the application of any landlord or mortgagee affected there-

by.

10.    During the operation of any protection order it shall neat not to be

not be lawful for the landlord of the premises affected thereby :pd:fleodn dr g

to increase the rate of the rent to be payable in respect thereof order.

beyond the rate at which such rent was payable at the time

when the application was made.

11.    Upon the termination of a protection order, all proceed- liffec:f of %r-

ings stayed by the order may be continued, and all remedies order. P

may be pursued for the payment of all amounts accrued due at the time of the making of the order under the lease or mort- gage of the dwelling or becoming due (subject to section ten) whilst the order was in force, together with interest calculated at a rate to be -fixed by the Commissioner not exceeding six pounds per centum per annum during the operation of the order on the amount of any rent or interest affected thereby:

Provided that the amount aforesaid shall be payable by such reasonable instalments (if any) ar a Commissioner may see fit to order.

12. (1.) A Commissioner may order that during the oper- Protection of lamb laraino srtmratgaagneet

ation of any protection order payment of rates or taxes,	taxes.
posed on or in respect of the dwelling affected by the order, which have become due since, or within twelve months imme- diately preceding the making of the order, shall not be en- forced against the landlord or mortgagee by the State Gov-

ernment or by any local authority.

Tenants, Purchasers,

No. 45.] and Mortgagors' Relief. [1930.

(2.) In this section "State Government" includes any corporation or person which or who is an instrumentality of, or represents, such Government, and "local authority" in- cludes a municipal corporation, a road board, and a local board of health.

A Commissioner may at any time revoke any order

made under this section either wholly or as to any particular

sum that may be due for rates or taxes.

(3.)

Orders for Relief in respect of Payment of Principal Moneys.

Power to grant

relief to	13. (1.) A mortgagor who has made default in payment of any principal moneys secured by any mortgage, or who is able to prove that he will not be able to pay on the due date any such principal moneys, may apply to a Commissioner for re- lief.
mortgagors.
(2.) After hearing the party or parties appearing before him, the Commissioner may either refuse or grant an order for relief to the mortgagor, and such order may, if the mort- gagee has taken possession of the dwelling, include a direction to relinquish such possession:
Provided that no order for relief made hereunder shall extend or apply to any principal moneys which became due and payable before the first day of October, nineteen hun- dred and thirty; and references to principal moneys in the sections of this Act relating to orders for relief shall not be deemed to extend to principal moneys which became due and payable before the date aforesaid.
(3.) An order for relief shall remain in force until it is cancelled or set aside by an order of a Commissioner or of a judge, or until the expiry of this Act.

Effect of order	14. (1.) Whilst the order for relief remains in force the
of relief.

mortgagee shall not without the leave of a judge

(a)	call up or demand payment from the mortgagor of the whole or any part of the principal moneys secured by the mortgage;
(b)	commence or continue any action or proceeding for the recovery of any principal moneys due under the mortgage or the enforcement of any judgment for any such moneys;

(c) exercise any power of sale;

Tenants, Purchasers,

1930.] and Mortgagors' Relief. [No. 45.

(d) obtain or take or keep possession of the dwelling com-

prised in the mortgage ;

(e) commence or continue any action, proceeding, or ap- plication for foreclosure, or exercise any power to cancel or determine any rights of the applicant in respect of the dwelling.

(2.) In the ease of an agreement for sale, if the vendor has cancelled the agreement and terminated the right of pur- chase, the Commissioner may annul the vendor's action and reinstate the agreement and the rights of the applicant there- under.

15. (1.) Applications to a judge for leave to proceed, not- Applications for leave toproceed.

withstanding an order for relief, shall be made in the pre- scribed manner, and in dealing with any such application the judge may either grant the application on such terms and con- ditions (if any) as the judge thinks fit, or refuse the applica- tion.

(2.) In dealing with any such applications the judge shall have regard to all the circumstances of the case, including the ability of the mortgagor to redeem the property out of his own moneys, or out of moneys which he is able to borrow, the nature and condition of the security, the hardship that may he suffered by the mortgagee in the event of refusal, and the conduct of the mortgagor.

General.

16.    A protection order or order for relief shall not prevent protection orders

the enforcement by appropriate measures or proceedings of the ?Alernuonoltro a	gnepoerrcaelm
bea urttoof

they do not provide for the payment of moneys with respect covenants.

covenants or agreements in a mortgage or lease, in so far as

te which the order is intended to be operative ; but so that the landlord or mortgagee shall not, contrary to any provi- sion of this Act, demand or compel payment of moneys to which the order does extend, or cause the dwelling to be sold or the tenant or mortgagor to be dispossessed thereof, or the estate, interest, or rights of the tenant or mortgagor therein to be foreclosed, forfeited, cancelled or terminated."

17.    No period of time during which any protection order or period of suspension

order for relief is operative shall be taken into account in com-	gir	ietitnetroloatetcooubnet
puting the time limited by any statute of limitations in rela- tion to any claim. affected by the order, or in computing the

Tenants, Purchasers,

No. 45.1 and Mortgagors' Relief. [1930.

time within which any right, claim, proceeding or process affected thereby ought to be enforced, exercised, commenced, continued or executed.

Order may be	18. (1.) In ease a landlord or vendor, against whom a pro- any dwelling, has mortgaged such dwelling to another person (hereinafter called the "superior mortgagee"), then the ten- ant or purchaser, on whose application the order was granted, may apply to a Commissioner to prohibit, during the opera- tion of the order, the superior mortgagee, or any person claim- ing through or under him, from disposing of or dealing with the dwelling or taking any measures or proceedings in respect thereof, except subject to the tenant's or purchaser's rights as against such landlord or vendor, and so as not to interfere with the exercise and enjoyment of such rights.
superior mort-	tection order or order for relief is in operation in respect of
gagee.

obtained against

An order made under this section shall be subject to such conditions (if any) as the Commissioner may think, fit to prescribe, and shall have effect according to its tenor, and shall be observed by the superior mortgagee and every person claiming through or under him.

(2.)

An order made under this section may be revoked by a Commissioner at any time.

(3.)

Provision in case	19. Where by the terms of a mortgage payment is provided not fixed in the mortgage or the instalments are expressed to be for the principal only and interest is stated not to be pay- able, the instalments shall for the purpose of the making of any order by a Commissioner under this Act be deemed to in- elude interest at such rate as is assessed by the Commissioner.
mortgage money
is repayable by	by a series of regular instalments, and the rate of interest is
instalments.

Regulations to	20. (1.) The regulations to be made under this Act shall
provide Por notice

of applications	provide for at least seven days' notice being given to all par-
being given to
interested parties	ties interested of any applications to be made under this Act, and for any interested parties attending the hearing or their solicitors or counsel being heard and allowed to take part in the proceedings.
(2.) Substituted service of notices may, however; be pre- scribed in cases in which it is impracticable, or would cause undue delay, to effect actual service on any party.

Orders under this 21. (1.) Any order or decision of a Commissioner or

Act to be final a nd

judge in any matter arising under this Act shall he final and

to bejudicially

notleed,

without appeal.

Tenants, Purchasers,

19:;0.] and Mortgagors' Relief. [No. 45.

(2.) Judicial notice shall be taken of all orders made under this Act.

22.    (1.) Any person contravening any provision of this Infractionsof

Act, or any order made thereunder, by act or omission, shall be guilty of an offence and liable on summary conviction to a penalty not exceeding twenty pounds.

(2.) Any act, measure or proceeding done or taken in con- travention of this Act, or any order made thereunder, shall be deemed to be invalid and illegal.

23.    The Registrar of Titles may, upon the submission to Trailers of land

him for registration of a transfer of land on sale by the mort- rorrpegolg.

gagee thereof, require such evidence as he deems necessary that the sale sought to be given effect to by the transfer does not contravene any provision of this Act, and may refuse to register such transfer until such evidence is submitted to him.

24.    The parties to any contract made or entered into after Exclusion of Act.

the date of the commencement of this Act may exclude the op- eration thereof as between themselves; but this Act shall be operative and have effect notwithstanding the terms of any contract made or entered into before such date.

25.    The costs of any application to a judge or Commis- Costs.

sioner under tins Act shall be in his discretion, and any order for costs made hereunder may be enforced as an order of the Supreme Court, but a Commissioner shall have no power to award or allow costs in connection with the granting or refusal of any protection order or any application for such an order.

No fees shall be exacted by any Government depart- ment or officer for any act done or services performed under this Act in connection with or for the purposes of a protection order or an application for such an order.	taken.
No fees to be

26.

27.    Any moneys required for the administration of this Financial pro.

Act shall be paid out of such moneys as may be appropriated 'ma by Parliament for the purpose.

28.    The Governor may make such regulations as it may be Regulations

necessary or convenient to make in. order to provide for the effective operation of this Act or to facilitate the carrying out of the objects thereof.

Tenants, Purchasers,

No. 45.] and Mortgagors' Relief. [1930.

Duration of

orders.	29. (1.) No protection order shall be made under this Act after the thirty-first day of December, nineteen hundred and thirty-one, but such an order may, subject to this Act, be ex- tended at any time or to any time after the said date ; pro- vided that no such order as aforesaid shall be operative after the thirty-first day of March, nineteen hundred and thirty-two.
(2.) No order for relief shall be operative after the thirty- first day of March, nineteen hundred and thirty-two.