War Precautions (Active Service Moratorium) Regulations 1916 (Amendment)

Legislation au C1919L00201 Regulations Not in force Legislative Instrument

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STATUTORY RULES.

1919. No. 201.

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REGULATIONS UNDER THE WAR PRECAUTIONS ACT 1914–1918.

I, WILLIAM HILL IRVINE, the Deputy of 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 War Precautions Act 1914–1918, to come into operation forthwith.

Dated this eighth day of August, 1919.

W. H. IRVINE,

Deputy of the Governor-General.

By His Excellency’s Command,

E. J. RUSSELL,

Acting Minister of State for Defence.

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Amendment of War Precautions (Active Service Moratorium) Regulations 1916.

(Statutory Rules 1916, No. 163, as amended by Statutory Rules 1916, No. 283, Statutory Rules 1917, No. 271, Statutory Rules 1918, Nos. 81, 238, and 314; and by Statutory Rules 1919, Nos. 112 and. 173.)

After regulation 9 of the War Precautions (Active Service Moratorium) Regulations, the following regulation is inserted:—

“9a. (1.) Notwithstanding anything contained in these Regulations any Court may, upon the application of the mortgagor or purchaser made not less than one month before the date to which the payment of—

(a) the principal money secured by a mortgage, or

(b) the purchase money (or any instalment thereof) payable under an agreement,

has been postponed under these Regulations (in this regulation referred to as ‘the prescribed date for payment’), make an order, on such terms and conditions (if any) as the Court thinks fit, extending the date for payment of the principal money, purchase money, or instalment, as the case may be, for a further period of not more than twelve months, and may fix the intervals of time and rate at which interest is payable during such further period.

“(2.) In this regulation ‘the Court’ means the High Court, or the Supreme Court of a State, or a County or District Court, or a Local Court consisting of a Special or Stipendiary Magistrate.

“(3.) An application under this regulation, other than an application to a Local Court, may be made on summons, which must be served on, or by motion which must be notified 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 such procedure to be just and equitable; and an application to a Local Court may be made on summons which must be served on all persons affected by the application at least seven clear days before the day appointed for the hearing of the application.


“(4.) An application under this regulation shall not be granted unless the Court is satisfied—

(a) that the obligation to repay the principal sum, purchase money or instalment, as the case may be, by the prescribed date for payment would involve serious hardship to the mortgagor or purchaser;

(b) that the conduct of the mortgagor or purchaser in respect of dealings with the mortgagee or vendor has not been such as to render him undeserving of the benefit or protection of this regulation; and

(c) that the granting of the application would not seriously embarrass the mortgagee or vendor.

“(5.) The jurisdiction conferred on the Court by this regulation may be exercised by a Justice or Judge of the Court sitting either in Court or in Chambers, or, in the case of a Local Court, by a Special or Stipendiary Magistrate.

“(6.) The Court may make all such orders in the matter of the application, including any order as to costs, as, having regard to the objects of these Regulations and the circumstances of the case, it deems proper:

Provided that the costs of the application shall be borne by the applicant unless, from the circumstances of the case the Court thinks fit to order otherwise.

“(7.) The order of the Court upon any such application shall be final; and no order or direction, whether interlocutory or final, in the matter of any such motion, 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.

“(8.) Where, in pursuance of this regulation, a Court has made an order extending for any period the date for payment of any instalment payable under any agreement, the Court may, by the same or a subsequent order, extend for a like period the date for payment of any subsequent instalment payable under that agreement, and fix the intervals of time and rate at which interest is payable during that period.”

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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.

Overview

The War Precautions (Active Service Moratorium) Regulations 1916, as amended by various statutory rules, introduced specific provisions to address the economic hardships faced by individuals during the period of active service due to the First World War. These regulations were enacted by the Deputy of the Governor-General, William Hill Irvine, in accordance with the advice of the Federal Executive Council, under the authority of the War Precautions Act 1914–1918. The primary policy objective of these regulations was to provide relief to mortgagors and purchasers by allowing courts to extend the payment deadlines for principal money secured by a mortgage or purchase money payable under an agreement, thereby mitigating the financial burden on those affected by the war. Courts were empowered to grant such extensions under specific conditions, ensuring that the relief provided was balanced and fair to both the mortgagors and the mortgagees or vendors.

Scope and Application

The War Precautions (Active Service Moratorium) Regulations 1916, as amended by these Regulations, apply to any person or entity who has entered into a mortgage or purchase agreement that has had its payment obligations postponed under the War Precautions Act 1914–1918. These Regulations govern the conduct of such parties and the transactions arising from these agreements, providing a framework for the extension of payment dates under specific circumstances. The regulations extend to the entire Commonwealth of Australia, providing a uniform approach to the management of financial obligations during the period of active service moratorium. The regulations do not apply to any transactions or agreements that are not subject to the War Precautions Act 1914–1918 or the subsequent amendments made by these Regulations. The application of these provisions may be further extended or restricted through subordinate instruments issued under the authority of the War Precautions Act 1914–1918.

Key Provisions

The primary operative section of the regulations (9a) allows a court to extend the date for payment of a mortgage or purchase money instalment for a further period of up to twelve months under certain conditions. This extension can be sought by a mortgagor or purchaser at least one month before the original payment deadline. The court must be satisfied that the payment by the prescribed date would cause serious hardship to the applicant, that the applicant’s conduct has not been such as to make them undeserving of the benefit, and that granting the application would not seriously inconvenience the mortgagee or vendor. The court has broad discretion to set terms and conditions for the extension, including the intervals and rates for interest payable during the extended period. The decision of the court on such an application is final and cannot be appealed, questioned, or reviewed in any manner. The regulations impose several obligations and requirements on the parties involved. The mortgagor or purchaser must apply to the appropriate court well in advance of the payment deadline, providing necessary information and evidence to demonstrate their eligibility for an extension. They must also bear the costs of the application unless the court orders otherwise. The mortgagee or vendor, on the other hand, must be notified of the application and have the opportunity to present their case to the court, although they do not have the right to appeal the court's decision. Courts are required to exercise their jurisdiction judiciously, considering the objectives of the regulations and the specific circumstances of the case. Breach of the regulations is not explicitly outlined in the provided text, but it is implied that any attempt to circumvent the court's jurisdiction or to mislead the court in the application process could be considered an offence. The regulations do not specify particular penalties for breaches; however, given their nature, any such breaches could potentially result in legal consequences, including fines or other sanctions. The finality of the court’s order suggests that non-compliance with the terms set by the court could lead to enforcement actions, such as the seizure of assets or legal proceedings to recover the outstanding amounts.

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