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 twenty first day of March, 1941.
Signed by the Governor-General
Governor-General.
By His Excellency’s Command,
Signed for and on behalf of the Minister of State for Defence Co-ordination
for and on behalf of the Minister of State
for Defence Co-ordination.
NATIONAL SECURITY (WAR SERVICE MORATORIUM) REGULATIONS.
Part I.—Preliminary.
Citation.
These Regulations may be cited as the National Security (War Service Moratorium) Regulations.
Administration.
These Regulations shall be administered by the Attorney General.
Repeal.
3.—(1.) The National Security (War Service Moratorium) Regulations (being Statutory Rules 1940, No. 194, as amended by Statutory Rules 1940, No. 286) are repealed.
(2.) Nothing in these Regulations shall affect the operation of any order of a court made in pursuance of the previous Regulations, or of the Regulations repealed by the previous Regulations, and where leave has been given to any person under the previous Regulations, or under the Regulations repealed by the previous Regulations, to do, or to continue or complete the doing of, any act, that person may, notwithstanding anything contained in these Regulations,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.
* Notified in the Commonwealth Gazette on , 1941.
34.—15/19.3.1941.—Price 1s.
(3.) Notwithstanding the repeal effected by this regulation—
(a) any notice given under regulation 25 of the previous Regulations which could have been given under these Regulations if they had been in force when the notice was given shall have the same effect as if these Regulations had been so in force and it had been given under these Regulations;
(b) any statutory declaration furnished in reply to any such notice shall have the same effect as if it had been furnished under these Regulations; and
(c) a certificate issued under sub-regulation (3.) of regulation 25 of the previous Regulations shall have the same effect as if it had been issued under these Regulations.
Parts.
4. These Regulations are divided into Parts, as follows:—
Section 1 - National Security (War Service Moratorium) Regulations - National Security (War Service Moratorium) Regulations | Zoe
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 Life Insurance Policies.
Part V.—Provisions relating to Rent.
Part VI.—Miscellaneous.
Definitions.
5.—(1.) 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;
“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, and includes any person—
(a) who, during war is or has been called up for active service, or is serving on active service, with the Naval, Military or Air Forces of any part of the King’s dominions (other than the Commonwealth); and
(b) who was born in Australia or was, prior to being called up or enlisting or being appointed for such active service, domiciled in Australia;
“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;
“the previous Regulations” means the Regulations repealed by these Regulations;
“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 war; and
(c) the service during 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 Attorney-General specifies by order published in the Gazette.
(2.) For the purposes of these Regulations, a person specified in paragraphs (a) and (b) of the definition of “member of the Forces” shall be deemed to be engaged on war service so long as he is called up for active service, or is serving on active service, with the Naval, Military or Air Forces of any part of the King’s dominions (other than the Commonwealth).
(3.) Where by these Regulations any jurisdiction is conferred on the Supreme Court of a State or Territory of the Commonwealth that jurisdiction may, in relation to the Territory of Norfolk Island, be exercised by the Court of Norfolk Island sitting in its Full Jurisdiction.
Regulations to bind the Crown.
6. 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 certain payments.
7.—(1.) Subject to these Regulations, where a member of the Forces, or a female dependant of a member, is liable to pay the principal money secured by a mortgage, or the purchase money under an agreement for the purchase of land, and that liability arose before the date on which the member at any time became engaged on the war service, the time (including any time passed) for payment of the principal money or purchase money shall, by force of this regulation, be postponed in accordance with the provisions of this regulation.
(2.) The time for payment shall be postponed so that the payment shall fall due on the expiration of the period—
(a) immediately following the date on which the member ceases (otherwise than by his death) to be engaged on war service equal to the period during which he was so engaged; or
(b) of six months immediately following that date,
whichever is the shorter.
(3.) If the person liable to pay the principal or purchase money is a member of the Forces and he dies while on war service, the time for payment shall be postponed so that the payment shall fall due upon the expiration of the period of six months immediately following the date of his death.
(4.) If the person liable to pay the principal or purchase money is a female dependant of a member, and she dies while the member continues to be engaged on war service, the postponement shall cease at the expiration of six months after her death, unless, in the meantime, the member becomes liable to pay the principal or purchase money, in which case the time for payment shall be postponed in accordance with the provisions of sub-regulation (2.) or (3.) of this regulation.
(5.) Where a member of the Forces has been engaged on war service during two or more periods, he shall be deemed to have been engaged on war service during a period equal in duration to the aggregate of the periods during which he was so engaged.
(6.) Where, under any mortgage or agreement to which this regulation applies, the principal or purchase money is to be repaid or paid by instalments, the time for payment of the earliest unpaid instalment shall be postponed in accordance with the provisions of this regulation and the time for payment of each subsequent instalment shall be postponed for a period equal to the period of postponement of the first-mentioned instalment.
(7.) Where a member of the Forces or a female dependant of a member is liable to pay the principal money secured by a mortgage but is not the owner of the land subject to the mortgage, the postponement effected by this regulation shall apply only in relation to the liability of that member or female dependant, and where a member of the Forces or female dependant of a member is liable to pay the principal money secured by a mortgage and is the owner of the land subject to the mortgage but ceases to be the owner before the postponement effected by this regulation ceases, the postponement shall thereupon apply only in relation to the liability of that member or female dependant.
(8.) Where 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 purposes of this regulation, the rate of interest shall be deemed to be Five pounds per centum per annum.
(9.) Where a mortgagee—
(a) was or is in possession of land under a mortgage to which this regulation applies at the date on which the member first became or becomes engaged on war service; or
(b) has appointed or appoints a receiver who was or is in possession of the mortgaged property, or in receipt of the rents and profits thereof, at that date,
nothing in this regulation shall affect any power of sale, right to foreclose, power to appoint a receiver, power to go into, or remain in, possession of the mortgaged property, or power to receive or continue to receive the rents and profits thereof.
(10.) Nothing in this regulation shall apply in respect of any mortgage or agreement for the sale of land—
(a) where a court has, prior to the sixth day of December, 1939, ordered that the mortgagee or vendor may exercise all or any of the remedies he may have for the enforcement of the security under the mortgage or re-entry on the land;
(b) where the member of the Forces or female dependant of a member, whether before or after the commencement of these Regulations, while liable to pay the principal or purchase money, became or becomes a bankrupt or an insolvent or has assigned or assigns his estate for the benefit of his creditors under any law relating to bankruptcy or insolvency or where the member or female dependant is deceased and his or her estate is being administered in bankruptcy or insolvency; or
(c) where the mortgagee or vendor obtains a declaration from the appropriate court that the member of the forces or female dependant of a member has abandoned the land.
(11.) 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.
(12.) Where the time for payment of any money is postponed under the previous Regulations to a date after the date on which the previous Regulations ceased to be in operation, that time for payment shall, by force of this regulation, cease to be so postponed but shall be subject to such postponement (if any) under this regulation as is applicable in the circumstances.
(13.) For the purposes of this regulation—
(a) the owner of land subject to a mortgage shall be deemed to be liable to pay the principal money secured by the mortgage; and
(b) a person shall be deemed to be liable to pay any principal money or purchase money if he is under an obligation to pay that money notwithstanding that the time for payment thereof has not arrived.
Interest to be payable in respect of postponed payments.
8.—(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.
Penal rate of interest not enforceable.
Where in any mortgage to which these Regulations apply provision is made for the payment or acceptance of interest at a reduced rate in the case of punctual payment, interest shall be payable at the reduced rate notwithstanding that it is not paid punctually in accordance with that provision.
Proceedings stayed, but rights not otherwise prejudiced.
10.—(1.) Except as otherwise provided by regulation 7 of these Regulations, these Regulations shall, so long as a postponement under that regulation continues in respect of any principal money or purchase money, operate as a stay of all proceedings, whether by action or any other means and whether in any court or otherwise, against a member of the Forces or a female dependant of a member, commenced before the date of commencement of these Regulations to enforce the payment, or in respect or in consequence of the non-payment of, the principal or purchase money, and of all remedies against the member of the Forces or female dependant of a member for the recovery thereof, but shall not otherwise prejudice or effect 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.
11.—(1.) The appropriate court may order that the provisions of this Part of these Regulations shall not apply in relation to the enforcement of any mortgage or agreement against any person if it is satisfied—
(a) that the whereabouts of that person are not known to the mortgagee or vendor;
(b) that the mortgagee or vendor has made reasonable efforts to ascertain those whereabouts; and
(c) that the mortgagee or vendor is not aware that that person is a member of the Forces or a female dependant of a member,
or 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 in the discretion of the Court.
(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.
Certain contracts and instruments not affected.
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 first became engaged on war service, concerning any mortgage or agreement to which regulation 7 of these Regulations applies; or
(b) any instrument made or thing done in pursuance of any such contract.
Joint mortgages and agreements.
13. The provisions of this Part shall apply in any case where a member of the Forces or a female dependant of a member is liable jointly with another person to pay the principal money under a mortgage or the purchase money under an agreement for the purchase of land in like manner as they apply where a member of the Forces or a female dependant of a member is solely so liable.
Meaning of “the appropriate court” defined.
14. In this Part, “the appropriate court” means—
(a) in relation to a mortgage or agreement where the amount of principal or purchase money outstanding thereunder does not exceed Five hundred pounds—a court of limited civil jurisdiction constituted by a Police, Stipendiary or Special Magistrate or by a barrister, solicitor, attorney or proctor in the State or Territory of the Commonwealth in which the land is situated, or, if there is no such court, the High Court, or the Supreme Court of that State or Territory;
(b) in relation to a mortgage or agreement where the amount of principal or purchase money outstanding thereunder exceeds Five hundred pounds but does not exceed Two thousand pounds—a District Court, County Court or Local Court of Full Jurisdiction in the State or Territory of the Commonwealth (other than the Territory of New Guinea) in which the land is situated, or, if there is no such court, or the land is situated in the Territory of New Guinea, the High Court, or the Supreme Court of the State or Territory of the Commonwealth in which the land is situated; and
(c) in any other case—the High Court, or the Supreme Court of the State or Territory of the Commonwealth in which the land is situated.
Part III.—Prohibition or Suspension of Proceedings.
Restriction on execution and other remedies.
15.—(1.) A person shall not—
(a) except with the leave of the court by which the judgment was given, proceed to execution on or otherwise to the enforcement of any judgment against a member of the Forces or a female dependant of a member, where the judgment is in respect of the liability of the member or female dependant under a contract or agreement made prior to the sixth day of December, One thousand nine hundred and thirty-nine or the date on which the member at any time became engaged on war service, whichever is the later, or under any contract or agreement modifying, superseding, or in substitution for any such contract or agreement; or
(b) except with the leave of the appropriate court, exercise any legal remedy in consequence of any default in the payment of a debt or the performance of an obligation by a member of the Forces or a female dependant of a member, where the debt or obligation arose or arises under any such contract or agreement.
(2.) Where any person has given a guarantee in relation to any contract or agreement to which sub-regulation (1.) of this regulation applies, a person shall not, except with the leave of the appropriate court, take any action for the enforcement of the guarantee.
(3.) An application for the leave of a court under this regulation may 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, and may be disposed of in chambers.
(4.) In determining whether leave shall be granted under this regulation the court shall consider—
(a) whether the failure to satisfy the judgment, pay the debt, or perform the obligation, was due to circumstances directly or indirectly attributable to the war service of the member;
(b) the conduct of the member of the Forces or female dependant in respect of any breach of the terms of the contract or agreement;
(c) whether the grant of leave would cause hardship to the member of the Forces or female dependant; and
(d) whether refusal to grant leave would cause hardship to the applicant,
and for the purpose of determining the facts the court may procure the attendance of, and examine, the member of the Forces or female dependant or any other person having knowledge of the facts.
(5.) If, having regard to the considerations mentioned in the last preceding sub-regulation, and to all other relevant considerations, the court is of opinion that it is equitable so to do, it may—
(a) grant leave, either unconditionally or subject to such restrictions and conditions as the court thinks fit;
(b) refuse to grant leave;
(c) readjust the amounts of any instalments payable under the contract or agreement;
(d) postpone the time for payment of all or any such instalments in such manner and for such time as the court thinks just in the circumstances of the case; or
(e) modify the terms of any guarantee given in relation to the contract or agreement in such manner as the court thinks just in the circumstances of the case,
and, if the court orders that the payment of any instalment be postponed, the court may direct that interest thereon be paid at such rate as it considers reasonable in the circumstances of the case.
(6.) If the court orders that the time for payment of any instalments be postponed—
(a) the court may direct that interest thereon be paid at such rate as it considers reasonable in the circumstances of the case; and
(b) the court shall order that the time for payment of all subsequent instalments be postponed in such manner as the court thinks fit.
(7.) The court may exercise any of the powers conferred by paragraphs (c), (d) and (e) of sub-regulation (5.) of this regulation upon application made by or on behalf of the member of the Forces or female dependant in the manner prescribed by sub-regulation (3.) of this regulation.
(8.) The costs of an application under this regulation shall be in the discretion of the court.
(9.) No settlement or agreement entered into by the parties after the making of an application for leave under this regulation shall be valid unless approved by the court.
(10.) For the purposes of this regulation—
“guarantee” includes any agreement or security included in or collateral to a contract or agreement referred to in sub-regulation (1.) of this regulation under which a third person undertakes to be answerable for the due performance of that contract or agreement or for the making of any payment falling due under that contract or agreement;
“judgment” means any judgment or order of any court (whether given or made before, on or after the date upon which these Regulations came into operation) for the payment or recovery of a sum of money, but does not include—
(a) any judgment for the recovery of damages for tort;
(b) any affiliation or maintenance order; or
(c) any order made either in criminal proceedings or in proceedings for the recovery of a penalty, in respect of any contravention of or failure to comply with the provisions of any law of the Commonwealth or of a State or Territory of the Commonwealth;
“legal remedy” means any remedy by way of—
(a) the levying of distress on, or the taking of possession of, any property, other than goods the seizure or taking possession of which is prohibited by the next succeeding regulation;
(b) re-entry upon any land;
(c) the realization of any security or the forfeiture of any deposit; or
(d) the rescission of any agreement for the sale and purchase of land.
(11.) Nothing in this regulation shall affect—
(a) any power or remedy of a mortgagee or vendor of land—
(i) which arose or arises from any default in the payment of interest under or by virtue of a mortgage or agreement to which regulation 7 of these Regulations applies; or
(ii) which is not affected by that regulation.
(b) any power to enforce a charge for rates on land;
(c) any power of sale of a mortgagee in possession of property, other than land or some interest in land, belonging to a member of the Forces or a female dependant of a member, where the power of sale arose before the date upon which the member first became engaged on war service;
(d) any right or power of a pawnbroker to deal with pledges; or
(e) any proceedings relating to goods being purchased by a member of the Forces or a female dependant under a hire-purchase agreement where the member or female dependant has purported to sell or otherwise dispose of the goods or has parted with the possession of the goods:
Provided that no action, suit or other proceeding shall be brought or taken to enforce a charge for rates on land while the land is subject to a mortgage or agreement to which regulation 7 of these Regulations applies.
(12.) Where, during the period between the repeal of the National Security (Courts Emergency Powers) Regulations and the commencement of these Regulations, any legal remedy (as defined by this regulation) has been exercised in respect of which the leave of a court would have been necessary if those Regulations had continued in force, the appropriate court may, on application made by or on behalf of any member of the Forces or female dependant of a member, if it is satisfied that the member or female dependant has suffered loss or damage by reason of the exercise of the legal remedy, make an order for the payment of compensation to the member or female dependant or, if it is practicable to restore the parties to the position in which they stood prior to the exercise of the legal remedy, without prejudice to the rights of a third person, make such order for that purpose as the court thinks fit and any further order of the nature referred to in paragraph (b), (c) or (d) of the definition of “legal remedy” in sub-regulation (10.) of this regulation as the court thinks fit, and any such order shall be complied with by all persons to whom it applies.
Protection from distress, &c, of means of livelihood of female dependants of members of the Forces.
16.—(1.) A person shall not, except with the leave of the appropriate court granted upon application made in the manner prescribed by the last preceding regulation, 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 the member of the Forces affected at any time became engaged on war service, or under any agreement modifying, superseding or in substitution for any such agreement, seize or take possession of any goods which are used by, or belong to, a member of the Forces or a female dependant of a member.
(2.) The provisions of the last preceding regulation relating to procedure and costs shall apply to applications under this regulation.
(3.) 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.
(4.) In relation to any goods being purchased under a hire-purchase agreement or the subject of a bill of sale, where the appropriate court, on application for leave in pursuance of this regulation by the vendor, under the hire-purchase agreement or by the grantee of the bill of sale, is satisfied—
(a) that the member of the Forces or female dependant of a member concerned would not suffer any hardship if the agreement or bill of sale were enforced; or
(b) that, having regard to all the circumstances of the case, it would be inequitable to the vendor or grantee that the member of the Forces or female dependant of a member should have the benefit of this regulation,
the court shall grant leave.
(5.) This regulation shall not apply in relation to any goods being purchased under a hire purchase agreement where the member of the Forces or female dependant of a member has purported to sell or otherwise dispose of, or has parted with the possession of, the goods before payment therefor has been completed.
(6.) 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.
Continuation of protection afforded by regulations 15 and 16.
17.—(1.) The protection afforded by the last two preceding regulations shall continue until the expiration of the period—
(a) immediately following the date on which the member ceases (otherwise than by his death) to be engaged on war service equal to the period during which he was so engaged; or
(b) of six months immediately following that date,
whichever is the shorter.
(2.) Where the person protected is a member of the Forces and he dies while on war service, the protection shall continue until the expiration of the period of six months immediately following the date of his death.
(3.) Where the person protected is a female dependant of a member, and she dies while the member continues to be engaged on war service, the protection shall cease at the expiration of six months after her death, unless, in the meantime, the member becomes protected in respect of the matter with respect to which the female dependant received protection, in which case the protection shall continue in accordance with the provisions of sub-regulation (1.) or (2.) of this regulation.
(4.) For the purposes of the last preceding sub-regulation, where a member of the Forces has been engaged on war service during two or more periods he shall be deemed to have been engaged on war service during a period equal in duration to the aggregate of the periods during which he was so engaged.
Postponement of payment of interest and rates.
18.—(1.) An appropriate court may, upon application by or on behalf of a member of the Forces or a female dependant of a member, made in the manner prescribed in regulation 15 of these Regulations, order the postponement of the time for payment—
(a) of any interest payable under a mortgage or agreement to which regulation 7 of these Regulations applies; or
(b) of any rates on land payable by the member or female dependant.
(2.) In determining an application under paragraph (a) of the last preceding sub-regulation the court shall consider whether the making of the order applied for would cause hardship to the mortgagee or vendor and in determining an application under paragraph (a) or (b) of that sub-regulation the court shall consider whether the refusal of the application would cause hardship to the member or female dependant, and for the purpose of determining the facts the court may procure the attendance of, and examine, the member or female dependant on any other person having knowledge of the facts.
(3.) If, having regard to the considerations mentioned in the last preceding sub-regulation, and to all other relevant considerations, the court is of opinion that it is equitable so to do, it may—
(a) postpone the time for payment of all or any such interest or rates in such manner and for such time as the court thinks just in the circumstances of the case; or
(b) refuse to grant the application.
(4.) The costs of an application under this regulation shall be borne by the applicant unless the court orders otherwise.
Power of courts to prohibit issue of process in certain cases.
19. 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, 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.
If in relation to any transaction it appears to the appropriate court, 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.
Any matter arising under either of the last two preceding regulations may be disposed of in chambers.
Bankruptcy proceedings against members of the Forces and female dependants of members.
22.—(1.) A person shall not, without leave of a court having jurisdiction in bankruptcy or insolvency, issue a bankruptcy notice (or, in the Territory of Papua or the Territory of New Guinea, a debtor’s summons) or present a bankruptcy petition or petition for adjudication in insolvency, against a member of the Forces or a female dependant of a member, where the judgment or final order in respect of which the bankruptcy notice would be issued is, or the debtor’s summons would be issued or the petition presented, in respect of a debt or obligation which arose before the member at any time became engaged on war service.
(2.) The court shall not grant leave unless the court is satisfied that, having regard to all the circumstances of the case (including the conduct and financial position of the member of the Forces or female dependant of a member and of the applicant), it would be inequitable to refuse to grant leave.
(3.) Where a bankruptcy petition or petition for adjudication in insolvency has been presented against any member of the Forces or a female dependant of a member, and the member or female dependant satisfies the court to which the petition was presented that his in ability to pay his debts is due to circumstances directly or indirectly attributable to his having been engaged on war service, 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.
Meaning of “the appropriate court” defined.
In this Part, “the appropriate court” means—
(a) where the matter at issue does not exceed in value the sum of Five hundred pounds—a court of limited civil jurisdiction in the State or Territory of the Commonwealth in which the transaction was entered into constituted by a Police, Stipendiary or Special Magistrate or by a barrister, solicitor, attorney or proctor, or, if there is no such court, the High Court, or the Supreme Court of that State or Territory;
(b) where the matter at issue exceeds in value the sum of Five hundred pounds but does not exceed in value the sum of Two thousand pounds—a District Court, County Court or Local Court of Full Jurisdiction in the State or Territory of the Commonwealth (other than the Territory of New Guinea) in which the transaction was entered into, or, if there is no such court, or the transaction was entered into in the Territory of New Guinea, the High Court, or the Supreme Court of the State or Territory of the Commonwealth in which the transaction was entered into; and
(c) in any other case—the High Court, or the Supreme Court of the State or Territory of the Commonwealth in which the transaction was entered into.
Part IV.—Provisions relating to Life Insurance Policies.
Protection of life insurance policies.
24.—(1.) A policy of life insurance issued prior to the third day of September, 1939, to a person who is or becomes a member of the Forces or a female dependant of a member, under which the member or female dependant is the life assured, and in which the life assured or a dependant of the life assured has some interest (legal or equitable), shall not be forfeited during the prescribed period on account of the non-payment of any premium falling due during the prescribed period.
(2.) If, during the prescribed period, a claim arises under the policy, then—
(a) if the amount owing to the insurer in respect of the policy for—
(i) advances, together with interest thereon; and
(ii) unpaid premiums, together with interest thereon (such interest to be, in respect of the prescribed period, at a rate not exceeding Six pounds per centum per annum),
does not exceed the surrender value of the policy ascertained in accordance with the provisions of this regulation, the amount payable in respect of the claim shall be the amount which would have been so payable, if all premiums due up to the date on which the claim arose had been paid, less the amount of any premiums which were so due and are unpaid and any interest thereon; and
(b) if the amount so owing to the insurer in respect of the policy exceeds the surrender value of the policy as so ascertained, the amount payable in respect of the claim shall be the amount of the premiums actually paid, or which should have been paid, in respect of the policy, less any amounts at any time paid by the insurer on the policy as surrender of bonus or otherwise and less any amount owing to the insurer in respect of the policy for advances (including advances in respect of unpaid premiums) with interest thereon.
(3.) For the purposes of the last preceding sub-regulation, the surrender value of the policy shall be ascertained as at the day immediately preceding the day on which the claim arises, and shall be not less than the difference between the present value of the reversion in the sum assured, including accrued bonuses, if any, according to the contingency upon which it is payable and the present value of the future net premiums.
(4.) For the purposes of this regulation, the amount of the net premium shall be such amount as, according to the age of the person whose life is assured at his birthday next following the date of the policy, is sufficient to provide for the risk incurred by the insurer exclusive of any addition thereto for office expenses and other charges.
(5.) The calculation, for the purposes of this regulation, in relation to any policy, of the present value of the reversion in the sum assured, of the present value of the future net premiums and of the amount of the net premium, shall be made in accordance with the table based on the “Mortality of Assured Lives, 1924–1929” (Ultimate Functions), and known as the A 1924–29 Table, with interest at the rate of four pounds per centum per annum, assuming the date of the policy to be one year after the actual date thereof.
Reinstatement of policies of life insurance.
25.—(1.) Where a policy of life insurance issued prior to the third day of September, 1939, to a person who is a member of the Forces or a female dependant of a member under which the member or the female dependant was the life assured and in which the life assured or a dependant of the life assured had, on the day immediately preceding the day on which the policy was forfeited, some interest (legal or equitable) has, prior to the commencement of these Regulations and during the prescribed period, been forfeited on account of the nonpayment of any premium falling due during the prescribed period, the policy shall be deemed to have had, prior to the commencement of these Regulations, and shall have during the prescribed period current at the commencement of these Regulations, the same force and effect as if it had not been so forfeited.
(2.) The provisions of sub-regulations (2.), (3.), (4.) and (5.) of the last preceding regulation shall apply in relation to a policy to which this regulation applies in like manner as they apply to a policy to which that regulation applies, and shall in its application accordingly, extend, with such alterations as are necessary, in relation to claims which, but for any forfeiture nullified by this regulation, would have arisen prior to the commencement of these Regulations.
Provisions for ascertaining whether persons are or were members of the Forces, &c.
26.—(1.) Any insurer who desires to ascertain, for the purposes of regulation 24 of these Regulations, whether any person (in this regulation referred to as “the assured”)—
(a) who is resident in Australia;
(b) who is not, to the knowledge of the insurer, a member of the Forces or a female dependant of the member; and
(c) who is the assured under a policy of life insurance,
is a member of the Forces or a female dependant of a member, may serve on the assured, in the manner provided by this regulation, a notice (in accordance with a form prescribed by the Attorney-General
by order published in the Gazette) requiring the assured to inform the insurer, within fourteen days after receipt of the notice, whether or not the assured is a member of the Forces or a female dependant of a member.
(2.) If, within the period specified in sub-regulation (1.) of this regulation, a statutory declaration by the assured or by some person having knowledge of the facts stating that the assured is a member of the Forces or a female dependant of a member is not furnished to the insurer, then, notwithstanding that the assured is, or at any subsequent time becomes, a member of the Forces or a female dependant of a member, regulation 24 of these Regulations shall not prevent any policy of life insurance issued to the assured by the insurer being forfeited within three weeks after the expiration of the period referred to.
(3.) Any insurer who desires to ascertain, for the purposes of regulation 25 of these Regulations, whether any person (in this regulation referred to as “the former assured”)—
(a) who is resident in Australia;
(b) who was not, to the knowledge of the insurer, a member of the Forces or a female dependant of a member on any particular date; and
(c) who was the assured under a policy of life insurance which was forfeited on that date,
was, on that date, a member of the Forces or a female dependant of a member, may serve on the former assured, in the manner provided by this regulation, a notice (in accordance with a form prescribed by the Attorney-General by order published in the Gazette) requiring the former assured to inform the insurer, within fourteen days after receipt of the notice, whether or not the former assured was, on the date specified in the notice, a member of the Forces or a female dependant of a member.
(4.) If, within the period specified, in sub-regulation (3.) of this regulation, a statutory declaration by the former assured or by some person having knowledge of the facts stating that the former assured was, on the date specified in the notice, a member of the Forces or a female dependant of a member is not furnished to the insurer, then, notwithstanding that the former assured was, on that date, a member of the Forces or a female dependant of a member, regulation 25 of these Regulations shall not apply to the policy referred to in the last preceding sub-regulation.
(5.) A notice under this regulation shall be served personally or by registered letter sent to the assured’s or former assured’s place of abode.
(6.) If an insurer produces evidence (supported by a statutory declaration) to the satisfaction of an officer thereto authorized in writing by the Attorney-General, that a person cannot be found and that the insurer has made reasonable efforts to ascertain his whereabouts and that the insurer is not aware that that person—
(a) is a member of the Forces or a female dependant of a member; or
(b) was on a particular date a member of the Forces or a female dependant of a member,
the officer may issue to the insurer a certificate to that effect, and thereupon—
(c) regulation 24 of these Regulations shall not apply in respect of any policy of life insurance issued by the insurer to that person; or
(d) regulation 25 of these Regulations shall not apply in respect of any policy of life insurance issued by the insurer to
(7) A certificate purporting to be issued in pursuance of the last preceding sub-regulation shall, in the absence of proof to the contrary, be deemed to have been duly issued.
that date,
whichever is the shorter; or
(b) in relation to a policy of life insurance isued to a female dependant of a member of the Forces—
(i) the period specified in the last preceding paragraph; or
(ii) if the member of the Forces dies or has died on war service, any period during which the member is or was immediately succeeding that date.
(2.) For the purposes of this Part, a policy of life assurance shall be deemed to be issued to a person who is a member of the Forces or a female dependant of a member if he or she is a party to a contract of life assurance in respect of which no specific document embodying the terms of the contract is issued.
Part not to apply to certain policies.
28. This Part shall not apply to any policy of life assurance issued by a Friendly Society registered under the law of any State or Territory of the Commonwealth unless premiums or contributions, distinct from those payable in respect of normal sickness and funeral benefits, are payable in respect of the policy.
Part V.—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.
29.—(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; or
(b) the landlord has entered into a contract to sell the dwelling-house, under which contract he has agreed to give vacant possession of the dwelling-house to the buyer, and not less than twenty per centum of the purchase money has been paid, or, in a case where a mortgagee has contracted to sell the dwelling-house either pursuant to his powers as mortgagee, or after having foreclosed upon the property, not less than ten per centum of the purchase money has been paid, and the court is satisfied that the contract was entered into bona fide and not for the purpose of evading the provisions of this regulation,
and unless 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.) It shall be a defence to a prosecution in respect of a contravention of the last preceding sub-regulation if the owner of the dwelling-house, in respect of which the prosecution is laid, proves that the dwelling-house was erected or acquired for the accommodation of a particular person or class of persons and that the dwelling-house is required for that person or a person of that class.
(4.) 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 garden or other premises within the curtilage of the house, but does not include any house or part of a house the fair rental value of which exceeds Two pounds per week;
“fair rental value” means—
(a) in the case of a dwelling-house to which sub-regulation (1.) of this regulation applies—the rent at which the house or part of the house was let at the time when the member of the Forces first became engaged on war service or when he or his parent or female dependant entered into possession, whichever is the later date; and
(b) in the case of a dwelling-house to which sub-regulation (2.) of this regulation applies—the rent agreed upon by the parties or, in default of agreement the fair rental value as determined by a fair rents board or court in the State or Territory in which the dwelling-house is situated, or by a person thereto authorized in writing by the Attorney General.
(5.) The provisions of this regulation shall be in addition to and not in substitution for any of the provisions of regulation 15 of these Regulations.
Rental of farms by members of the Forces, parents or female dependants.
30.—(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 the appropriate court, 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 such land require from any member of the Forces, parent of a member or female dependant of a member the payment of any fine, premium or other like sum in addition to the rent.
(3.) No order for the recovery of possession of any such 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; or
(b) the landlord has entered into a contract to sell the land, under which contract he has agreed to give vacant possession of the land to the buyer, and not less than twenty per centum of the purchase money has been paid, or, in a case where a mortgagee contracted to sell the land either pursuant to his powers as mortgagee, or, after having foreclosed upon the property, not less than ten per centum of the purchase money has been paid, and the court is satisfied that the contract was entered into bona fide and not for the purpose of evading the provisions of this regulation,
and unless the court is satisfied that in all the circumstances of the ease and in the interests of justice it is desirable that the order for recovery or ejectment should be made.
(4.) In this regulation, “the appropriate court” means—
(a) where the rent payable does not exceed Seventy pounds per annum—a court of limited civil jurisdiction constituted by a Police, Stipendiary or Special Magistrate or by a barrister, solicitor, attorney or proctor in the State or Territory of the Commonwealth in which the land is situated, or, if there is no such Court, the High Court, or the Supreme Court of that State or Territory;
(b) where the rent payable exceeds Seventy pounds per annum—a District Court, County Court or Local Court of Full Jurisdiction in the State or Territory of the Commonwealth (other than the Territory of New Guinea) in which the land is situated, or if there is no such court, or the land is situated in the Territory of New Guinea, the High Court or the Supreme Court of the State or Territory of the Commonwealth in which the land is situated.
(5.) The provisions of this regulation shall be in addition to and not in substitution for any of the provisions of regulation 15 of these Regulations.
Part VI.—Miscellaneous.
Power of Registrar of Titles to require evidence.
31. 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 or of the previous Regulations and may refuse to note the re-entry until evidence accordingly is submitted to him.
Regulations not to apply in certain cases.
32.—(1.) Any person (in this regulation referred to as “the claimant”) who desires to do or continue or complete the doing of any act against any person (in this regulation referred to as “the respondent”) may, if the respondent is resident in Australia—
(a) where the act is in respect of any mortgage, contract, agreement, judgment, debt, obligation, bill of sale, or writ of execution or other process, and the respondent is not, to the knowledge of the claimant, a member of the Forces or a female dependant of a member—serve on the respondent, in the manner provided by this regulation, a notice (in accordance with a form prescribed by the Attorney-General by order published in the Gazette) requiring the respondent to inform the claimant, within fourteen days after the receipt of the notice, whether or not the respondent is a member of the Forces or a female dependant of a member; and
(b) where the act is in respect of the rental or possession of any dwelling house, shop or land, and the respondent is not, to the knowledge of the claimant, a member of the Forces, a female dependant of a member or a parent of a member—serve on the respondent, in the manner provided by this regulation, a notice (in accordance with a form so prescribed) requiring the respondent to inform the claimant, within fourteen days after the receipt of the notice, whether or not the respondent is a member of the Forces, a female dependant of a member or a parent of a member.
(2.) A notice under the last preceding sub-regulation shall be served personally or by registered letter sent to the respondent’s place of abode.
(3.) If, within the period specified in sub-regulation (1.) of this regulation, a statutory declaration by the respondent or by some person having knowledge of the facts stating—
(a) in the case of a notice served under paragraph (a) of that sub-regulation, that he is a member of the Forces or a female dependant of a member; or
(b) in the case of a notice served under paragraph (b) of that sub-regulation, that he is a member of the Forces, a female dependant of a member or a parent of a member,
is not furnished to the claimant then, notwithstanding that the respondent is, or at any subsequent time becomes, a member of the Forces, a female dependant of a member or a parent of a member, these Regulations shall not apply in respect of the doing, or continuance or completion of the doing, of an act of the kind referred to in paragraph (a) or paragraph (b) of that sub-regulation, whichever is applicable, provided the claimant commences to do, or to continue or to complete the doing of, the act within three weeks after the expiration of the period specified in that sub-regulation.
(4.) For the purposes of the last preceding sub-regulation, where the doing of any act is dependent on the completion of any preliminary act the commencement of the doing or continuance or completion of the doing of the preliminary act shall be deemed to be the commencement of the doing of the first-mentioned act.
(5.) If the claimant produces evidence (supported by statutory declaration) to the satisfaction of an officer thereto authorized in writing by the Attorney-General, that the respondent—
(a) has abandoned the property in respect of which he desires to do, or continue or complete the doing of, any act; or
(b) cannot be found and that the claimant has made reasonable efforts to ascertain his whereabouts,
and that the claimant is not aware that the respondent is a member of the Forces, or a parent of a member, or a female dependant of a member, as the case may be, the officer may issue to the claimant a certificate to that effect, and thereupon these Regulations shall not apply in respect of the doing or continuance or completion of the doing of the act by the claimant.
(6.) A certificate purporting to be issued in pursuance of the last preceding sub-regulation shall, in the absence of proof to the contrary, be deemed to have been duly issued.
Validation.
33.—(1.) Subject to this regulation, no transaction or proceeding shall be invalidated by reason only that it has been entered into or taken in contravention of these Regulations, but nothing in this regulation shall affect the liability of any person to a penalty in respect of any such contravention.
(2.) The appropriate court may, on the application of the Attorney-General or of any person interested, make an order that a transaction or proceeding entered into or taken in contravention of these Regulations shall be invalidated, but the court shall not make any such order if the court is satisfied that the effect of the order (if made) would be to prejudice the rights of a person in respect of, or arising out of, the transaction or proceeding which are acquired bona fide and without notice of the contravention.
(3.) In this regulation, “the appropriate court” means the High Court, or the Supreme Court of the State or Territory of the Commonwealth in which the transaction or proceeding was entered into or taken.
Period of postponement, &c, not to be taken into account for purposes of any Statute of Limitations.
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 time for payment of any money is postponed, or during which any proceedings, or proposed proceedings, are stayed, prohibited or suspended, under these Regulations or under the previous Regulations.
Jurisdiction of courts.
35.—(1.) If, on any application to a court under these Regulations, any objection (based on the amount of principal or purchase money outstanding, or on the value of the matter at issue, or on the amount of rent payable) is taken to the jurisdiction of the court, the court shall determine the objection summarily, but the decision of the court shall not operate as an estoppel between the parties or their privies in any subsequent proceeding.
(2.) An order made by a court under these Regulations shall not be appealed against, questioned or reviewed in any manner whatsoever, or be restrained or removed by prohibition, injunction, certiorari or otherwise howsoever, by reason of any want of’ jurisdiction arising out of the amount of principal or purchase money outstanding, the value of the matter at issue, or the amount of rent payable, as the case may be.
Regulations not to apply to trustees, &c.
These Regulations shall not apply to, or in relation to, any obligation of a member of the Forces, female dependant of a member or parent of a member under or by virtue of a mortgage, contract, agreement, lease, tenancy or bill of sale which he has given or entered into as a trustee or in any representative capacity whatsoever, or in respect of any liability which he has incurred as a trustee or in such a capacity.
By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.