War Precautions (Postponement of Payments) Regulations 1916 (Cth)

STATUTORY RULES.

1916. No. 163.

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REGULATIONS UNDER THE WAR PRECAUTIONS ACT 1914-1916.

I, THE GOVERNOR-GENERAL in and over the Commonwealth ofAustralia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the War Precautions Act 1914-1916 to come into operation forthwith.

Dated this twenty-eighth day of July, 1916.

R. M. FERGUSON,

Governor-General.

By His Excellency’s Command,

G. F. PEARCE,

Minister of State for Defence.

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WAR PRECAUTIONS (POSTPONEMENT OF PAYMENTS) REGULATIONS 1916.

Short title.

1. These Regulations may be cited as the War Precautions (Postponement of Payments) Regulations 1916.

Definitions.

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

“Female Dependant” means’ any female who is wholly dependent for her support upon the pay of a person who is a member of the Forces;

“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” has the same meaning as it has in section two of the War Pensions Act 1914-1915.

Postponement of due date of principal secured by mortgage.

3. Subject to these Regulations, the time for any payment of principal money secured by a mortgage (legal or equitable) of land, contracted by a member or the female dependant of a member before the date of the enlistment or appointment of the member in the Expeditionary Forces, or, in the case of a member of the Forces employed on a ship of war, or the female dependant of any such member, before the date of the member’s appointment or enlistment for such employment or before the first day of January, 1916, whichever last happens, is

   

C.8202.—Price 3d.

hereby postponed so that such payment shall fall due upon the thirty-first day of December, One thousand nine hundred and sixteen, and not earlier, or upon the expiration of any such further period or periods of postponement as the Governor-General specifies by proclamation and not earlier.

Postponement of due date of purchase-money.

4. (1) Subject to these Regulations, the time for any payment of purchase-money (whether the whole or an instalment thereof) under an agreement for the purchase of land, entered into by a member or the female dependant of a member before the date of the enlistment or appointment of the member in the Expeditionary Forces, or, in the case of a member of the Forces employed on a ship of war, or the female dependant of any such member, before the date of the member’s appointment or enlistment for such employment or before the first day of January, 1916, whichever last happens, which payment has fallen due since the first day of May, One thousand nine hundred and sixteen, or hereafter falls due, is hereby postponed so as to fall due upon the expiration of the period of six months next after the day on which it fell due or would fall due if these Regulations had not been made, and not earlier, or upon the expiration of any such, further period or periods of postponement as the Governor-General specifies by proclamation, and not earlier.

(2) This Regulation shall not apply to any amount payable as interest, and when an instalment includes interest as well as principal, and the agreement neither states the rate of interest nor indicates what parts of the instalment are principal and interest respectively, then, for the purposes of this Regulation, the rate of interest shall be deemed to be five per centum per annum.

Period of postponement may be prolonged

5. The Governor-General may, by proclamation, from time to time, prolong or further prolong, for such periods of time as are specified in the proclamation, the periods of postponement provided by the last two preceding Regulations.

Interest to be payable in respect of period of postponement.

6. (1) When a mortgagor or purchaser avails himself of the right conferred by these Regulations to postpone the payment of any sum, interest shall be payable on such sum in respect of the period of postponement.

(2) The rate of the interest payable at any time by virtue of this Regulation shall, unless the rate thereof is hereafter agreed upon by the parties before the interest falls due, be—

(a)six per centum per annum, or

(b) the rate payable on the date when such sum would have been payable if these Regulations had not been made,

whichever is the higher 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, in the times when the sums of interest respectively fall due or are paid (as the case may be), the rates 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.

(3) Where the rate of interest payable does not exceed six per centum per annum, such interest 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 thereby secured, or, if no provision is so made, then quarterly.

 

(4) When the rate of interest payable exceeds six per centum per annum, interest at the rate of six per centum shall be payable at the time specified in the last preceding sub-regulation, and the excess shall from time to time be added to and form part of the sum the payment of which has been postponed under these Regulations.

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

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

7. 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 mortgagor or purchaser avails himself of the right conferred by these Regulations to postpone the payment of any of such instalments, then, notwithstanding that in other respects these Regulations may have ceased to operate, the times when the subsequent instalments respectively fall due shall each be postponed for a period equal of the period of postponement effected by these Regulations with respect to the first-mentioned instalment; but the interest to be paid with such subsequent instalments shall, if these Regulations have so ceased to operate, be at the rate fixed by the mortgage or agreement.

Proceedings stayed, but rights not otherwise prejudiced.

8. (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, heretofore commenced to enforce the payment or in respect or in consequence of the non-payment of any principal or purchase-money to which Regulation 3 or 4 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 party, except so far as may be 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.

(3) In particular, but without limiting the effect of this Regulation, it is hereby provided that the period of postponement effected by these Regulations shall not be taken into account in calculating the time, as fixed by any Statute of Limitations or other Act or State Act, within which any action for the recovery of any postponed sum is to be commenced, or any other remedy for that purpose is to be pursued.

Provision for cases of great hardship.

9. (1) Notwithstanding anything contained in these Regulations, any Justice of the High Court or Judge of the Supreme Court of a State shall have power, with respect to any mortgage or agreement, to order that these Regulations shall not apply thereto, if he is of opinion that in the special circumstances of the case, the postponement effected by these Regulations is not necessary in the interest of the mortgagor or purchaser, 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 such mortgage or agreement, he stands in the position of trustee.

(2) The application for an order under this Regulation shall be by originating summons, which, unless otherwise directed by a Justice or Judge, shall be heard in Chambers.

(3) The proceedings on and incidental to such summons shall be as prescribed by the Rules of the High Court or the Supreme Court, as the case may be, for the time being in force: Provided that, with

 

respect to any such summons, a Justice or Judge may give such (if any directions as he thinks proper, notwithstanding that they are contrary to any Rule of Court or any law or practice, as to—

(a)the mode of service thereofthe persons to be served therewith, and the time for appearance thereto or for the return thereof;

(b)the time for the hearing thereof, notice of the hearing, and the length of such notice;

(c) any other notice;

(d)the manner in which evidence is to be given at the hearing and

(e)any other matter or thing,

to the end that such summons shall be heard and determined as expeditiously and inexpensively as is practicable.

(4) A Justice or Judge may make all such interlocutory and final orders in the matter of any such summons, including any orders as in costs, as, having regard to the objects of these Regulations and the circumstances of the case, he deems proper: Provided that the costs of the application shall be borne by the applicant unless, from the circumstances of the case, the Justice or Judge thinks fit to order otherwise.

(5) The order of a Justice or Judge determining any such summon shall be final; and no order or direction, whether interlocutory or final in the matter of any such summons, and no other proceeding under the Regulation, shall be appealed against, questioned, or reviewed in and manner whatsoever, or be restrained or removed by prohibition, injunction, certiorari, or otherwise howsoever.

Certain contracts and instruments not affected.

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

(a) any contract, made after the date of these Regulation concerning any mortgage or agreement to which Regulations 3 or 4 of these Regulations applies; or

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

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Printed and Published for the Government of the Commonwealth of Australia by Albert J. Mullett, Government Printer for the State of Victoria.