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Form of mortgage
9 Form of mortgage
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Commonwealth legislation
This Act has been repealed and is no longer in force. It is retained for historical reference.
These Regulations set the operational rules under the Defence Service Homes Act 1918 for buying, financing, building and renting Defence Service Homes: how to apply, how mortgages and advances are secured and repaid, progress‑payment and valuation rules, insurance, tenancy termination and enforcement procedures. They affect applicants, purchasers, borrowers, builders, tenants and the Defence Service Homes Corporation (and, for portfolio assets that vest elsewhere, the Bank and its managers). They matter because they fix who pays which costs, how payments are allocated, and the Corporation/Bank’s discretion to inspect, withhold funds or call in mortgages.
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Direct links to the current provisions in Defence Service Homes Regulations 1936.
9 Form of mortgage
10 Notice of intention to execute mortgage
Part IV Conditions of contracts of sale and advances
11 Fees, charges and costs
13 Corporation to hold title deeds until mortgage discharged
14 Borrower to observe Acts and regulations applicable to home etc
15 Proof of account with Corporation
16 Power of Corporation where mortgage property seized in execution to call in amount secured
17 Remedies where default by borrower
18 Payment for repairs
20 Removal of fittings or fixtures
21 Power of Corporation where purchaser or borrower not an eligible person
22 Failure by purchaser or borrower to pay rates etc
23 Appropriation of amounts paid to Corporation
24 Inspection and valuation of land and dwelling‑house
26 Payment by applicant of interest on progress payments
Part VI Advances on mortgage for purposes of homes
Division 1 General
28 Purpose of advance to be specified
29 Advance not to be made until mortgage executed
30 Plans and specifications
31 Account of disbursement of advance
Division 2 Advances by Instalments
32 Advances by instalments
33 Definition of work
35 Application for each instalment
36 Certificates of value
37 Amount of instalments
38 Valuation fee
39 Deduction of valuation fee from amount of instalment
40 Preservation of dwelling‑house
42 Failure to proceed with work satisfactorily
43 Default by applicant or borrower
43A Default of builder building for the Corporation
44 Interest
Part VII Insurance of dwelling‑houses
45 Certain dwelling‑houses deemed to be insured
46 Corporation may pay premiums on behalf of itself or another person
Part VIIA Tenancies under section 30A of the Act
74A Period of tenancy and rental
74B Terms and conditions of tenancy
74C Determination of tenancy
74D Notice of intention to apply for a warrant
74DA Determination of tenancy by death
74E Service of notices
74F Proof of service
74G Initiation of court proceedings
74H Form of warrant
Part VIII Miscellaneous
74J Operational areas
75 Notice of removal and storage
76 Service of notices
77 Proof of signature of Secretary etc
78 Evidence in proceedings under section 30A
78A Use and disclosure of personal information —prescribed purposes
79 Proof of account with Corporation
81 Prescribed authority of Department of Veterans’ Affairs
82 Forms
83 Payments by purchaser or borrower
The Schedule
Form B Notice of determination of tenancy
Form C Notice of intention to apply for a warrant under Section 30A of the Act
Form CA Affidavit of service
Form D Warrant to enter and give possession to the defence service homes corporation
Form E Notice of removal and storage of goods
Notes
Part 1 Preliminary
1 Name of Regulations [see Note 1]
These Regulations are the Defence Service Homes Regulations 1936.
2 Repeal
The War Service Homes Regulations (Statutory Rules 1926, No. 171, as amended by Statutory Rules 1927, No. 113; 1928, Nos. 21, 55, 84; 1929, Nos. 2, 47, 118; 1930, Nos. 9, 20; 1931, No. 119; 1932, Nos. 56, 104, 134, 141; 1933, No. 124; 1934, No. 106; and 1935, Nos. 58, 82, 134) are repealed.
3 Parts
These Regulations are divided into Parts, as follows:
Part I — Preliminary (Regulations 1–4)
Part II — Applications for Homes and Advances (Regulations 5–8A)
Part III — Mortgage to Secure Balance of Purchase Money (Regulations 9–10)
Part IV — Conditions of Contracts of Sale and Advances (Regulations 11–26)
Part V — Modifications and Adaptations of the Lands Acquisition Act 1955 (Regulations 27–27M)
Part VI — Advances on Mortgage for Purposes of Homes
Division 1 — General (Regulations 28–31)
Division 2 — Advances by Instalments (Regulations
32–44)
Part VII — Insurance of Dwelling‑Houses and Building Material (Regulations 45–74)
Part VIIA — Tenancies under Section 30A of the Act (Regulations 74A–74H)
Part VIII — Miscellaneous (Regulations 74J–83).
4 Interpretation
(1) In these Regulations, unless the contrary intention appears:
applicant means any person who has made an application for the purchase of a home or for an advance under the Act, and includes a purchaser or a borrower.
authorized person means a person or institution authorized in writing by the Corporation to exercise the powers or functions in respect of which the expression is used.
home means a dwelling‑house and the land upon which it is erected.
State Manager means a person for the time being occupying, or performing the duties of, an office in the Australian Public Service designated as:
(a) State Manager, Defence Service Homes Corporation; or
(b) Manager, Defence Service Homes Corporation.
the Act means the Defence Service Homes Act 1918.
(2) Any reference in these Regulations to an eligible person shall be read as including a reference to persons with whom the Corporation proposes to enter, or has entered, into any transaction in accordance with subsection (1) of section 4A of the Act.
Part II Applications for homes and advances
5 Applications for homes
Applications for homes or for advances under the Act shall be made in writing to a State Manager in the manner and on the form approved by the Director.
6 Applications — how dealt with
Applications shall be dealt with in the manner laid down in the General Orders issued by the Corporation.
7 Certificate of State Manager as to eligibility etc of applicant
A State Manager or an authorized person shall, on receipt of an application for a home or for an advance, certify whether the applicant is an eligible person and whether the State Manager or the authorized person is satisfied that the applicant has a reasonable prospect of carrying out the terms of the contract of sale or the mortgage in respect of the advance into which he is desirous of entering.
8 Appeals
(1) Where an applicant is dissatisfied with the certificate given in pursuance of the last preceding regulation, he may appeal in writing to the State Manager or the authorized person, as the case may be, stating fully the grounds of his appeal.
(2) Upon receipt of the appeal the State Manager or the authorized person, as the case may be, shall reconsider the case, and may either grant a fresh certificate, or forward the appeal, together with the file and such report as he considers necessary, to the Corporation for decision.
(3) The decision of the Corporation shall be final.
8A Securities by minors
Where an applicant is an infant or minor he may give a security and the security shall have the same effect and may be enforced to the same extent as if he were not an infant or minor.
Part III Mortgage to secure balance of purchase money
9 Form of mortgage
For the purposes of subsection (6) of section 19 of the Act, the prescribed form of mortgage shall be such form as is required for registration under the law of the State or Territory of the Commonwealth in which the land is situated.
10 Notice of intention to execute mortgage
Any purchaser may execute a mortgage to the Corporation in pursuance of subsection (6) of section 19 of the Act upon giving to the Corporation one months' notice of his intention to do so.
Part IV Conditions of contracts of sale and advances
11 Fees, charges and costs
(1) The following fees, charges and costs shall be payable by the applicant:
Valuation fees;
Survey fee;
Charges for services of architects and inspectors and of officers or servants of the Corporation in connexion with the preparation and perusal of legal documents as determined by the Corporation;
All fees in connexion with transfers and mortgages (searches, registrations, new titles, extra titles, etc);
Stamp duty; and
Costs payable to the Commonwealth Crown Solicitor or his representatives.
(2) The Corporation may require the applicant to pay the fees, charges and costs referred to in this regulation as soon as they become due or immediately after they have been paid, or may direct that they be added to the amount of the purchase money or advance or deducted from the amount of any advance, and in the last‑mentioned case the borrower will be deemed to have received the advance in full.
13 Corporation to hold title deeds until mortgage discharged
The title deeds of land mortgaged to the Corporation shall remain in the custody of the Corporation so long as any money remains due and unpaid under the mortgage.
14 Borrower to observe Acts and regulations applicable to home etc
Subject to section 17B of the Act, each borrower shall in all respects conform to the provisions and regulations of any general or local Act of Parliament or local authority which may be applicable to the home or the work of erecting, completing or enlarging the dwelling‑house.
15 Proof of account with Corporation
A certificate given by the Corporation containing a statement of the account of a purchaser, a borrower, a tenant or an applicant with the Corporation shall be evidence of the matters stated.
16 Power of Corporation where mortgage property seized in execution to call in amount secured
Where any land mortgaged to the Corporation is seized in execution, the Corporation may by notice in writing at once call in the amount secured by the mortgage whether as principal interest or otherwise.
17 Remedies where default by borrower
Where:
(a) the Corporation calls in an amount secured by a mortgage; or
(b) in accordance with an agreement for the erection, completion or enlargement of a dwelling‑house by the Corporation under section 17A of the Act, the amount secured by a mortgage becomes repayable;
the borrower shall forthwith pay that amount, and, in default, the borrower shall be deemed to be in default in repayment of the principal sum secured by the mortgage and the Corporation shall have the same remedies for the recovery of that principal sum (including any accrued interest) as are provided by or under the mortgage or by the Act or these Regulations for the recovery of sums payable by the borrower.
18 Payment for repairs
(1) Where the Corporation effects repairs in pursuance of subsection (2) of section 31 of the Act, the expenses thereby incurred, together with interest chargeable in accordance with the Act, shall be repayable by the purchaser or borrower by such weekly, fortnightly, or monthly instalments, and within such period, as the Corporation determines.
(2) The Corporation shall estimate the cost of the repairs prior to the repairs being effected, and shall notify the estimated cost to the purchaser or borrower.
(3) Any failure by the Corporation to notify the estimated cost of repairs to the purchaser or any notification of an estimated cost which is lower than the actual cost shall not relieve the purchaser or borrower from his liability to repay the expenses incurred in effecting the repairs, and the interest.
20 Removal of fittings or fixtures
If the dwelling‑house or any part thereof or any materials of which it is constructed or any fittings or fixtures thereon or therein are, without the consent in writing of the Corporation, removed from land subject to a contract of sale or mortgage, the Corporation may exercise all or any of the powers conferred upon it by section 31 of the Act to the same extent as if after notice in writing by the Corporation the purchaser or borrower had not complied with the requirements of that section.
21 Power of Corporation where purchaser or borrower not an eligible person
If it is proved to the satisfaction of the Corporation that at the date of the contract of sale or advance the purchaser or borrower was not an eligible person under the Act the Corporation may exercise all or any of the powers conferred upon it by section 36 of the Act to the same extent as if an instalment or money payable in respect of the contract of sale or advance had been unpaid for three calendar months next after the time appointed for the payment thereof.
22 Failure by purchaser or borrower to pay rates etc
(1) Except in cases where a condition has been inserted in the contract of sale, mortgage or other security in pursuance of section 37 of the Act, upon a failure by a purchaser or borrower to pay as it falls due any sum payable for rates, taxes, charges, assessments or outgoings in respect of the land or dwelling‑house which is subject to a contract of sale or mortgage, the Corporation may, if it thinks fit, pay the sum due, and may recover the amount paid, or any portion thereof, together with interest at the rate payable under the contract or mortgage, by action against the purchaser or borrower in any Court of competent jurisdiction.
(2) In any action for the recovery of rates, taxes, charges, assessments or outgoings under the last preceding subregulation a certificate in writing given by the Corporation, certifying that the sum named in the certificate was due by the purchaser or borrower and that it was still unpaid shall be prima facie evidence of the facts stated in the certificate.
(3) Any amount paid by the Corporation under subregulation (1) of this regulation shall, until repayment, be a charge under the contract of sale, mortgage or other security upon the property.
23 Appropriation of amounts paid to Corporation
When an amount is paid to the Corporation by a purchaser or borrower, the amount shall be appropriated by the Corporation in the following order:
(a) first, in payment of any moneys owing by the purchaser or borrower:
(i) under subsection 30B (7) of the Act;
(ii) in respect of fees, charges or costs payable under regulation 11;
(iii) in repayment of any moneys paid by the Corporation on behalf of the purchaser or borrower other
than moneys paid by the Corporation under subsection 29AA (4) or (5) or paragraph 31 (2) (a) or 36 (1C) (a) of the Act; and
(iv) for interest that has accrued on any moneys to which subparagraphs (ii) and (iii) apply;
(b) second, in payment of any insurance premiums due by the purchaser or borrower;
(c) third, in payment of interest due by the purchaser or borrower (other than interest to which paragraph (a) applies) in respect of:
(iii) any amounts paid by the Corporation on behalf of the purchaser or borrower under subsection 29AA (4) or (5) or paragraph 31 (2) (a) of the Act; and
where the interest has accrued at the rate specified in subsection 30 (1) of the Act;
(d) fourth, in payment of interest due by the purchaser or borrower (other than interest to which paragraph (a) applies) in respect of:
(iii) any amounts paid by the Corporation on behalf of the purchaser or borrower under paragraph 31 (2) (a) of the Act; and
where the interest has accrued at the rate specified in paragraph 30 (2) (a) of the Act;
(da) fifth, in payment of interest due by the purchaser or borrower (other than interest to which paragraph (a) applies) in respect of:
(iii) any amounts paid by the Corporation on behalf of the purchaser or borrower under paragraph 31 (2) (a) of the Act; and
where the interest has accrued at the rate specified in subparagraph 30 (2) (b) (ii) of the Act;
(e) sixth, in payment or repayment, as the case may be, of:
(iii) any amounts paid by the Corporation on behalf of the purchaser or borrower under subsection 29AA (4) or (5) or paragraph 31 (2) (a) of the Act and due under the Act; and
in respect of which interest is payable at the rate specified in subsection 30 (1) of the Act;
(f) seventh, in payment or repayment, as the case may be, of:
(iii) any amounts paid by the Corporation on behalf of the purchaser or borrower under paragraph 31 (2) (a) of the Act and due under the Act; and
in respect of which interest is payable at the rate specified in paragraph 30 (2) (a) of the Act; and
(g) eighth, in payment or repayment, as the case may be, of:
(iii) any amounts paid by the Corporation on behalf of the purchaser or borrower under paragraph 31 (2) (a) of the Act and due under the Act; and
in respect of which interest is payable at the rate specified in subparagraph 30 (2) (b) (ii) of the Act.
24 Inspection and valuation of land and dwelling‑house
Every purchaser and every borrower shall for the purposes of section 46 of the Act at all times permit any inspector or valuer of the Corporation to enter upon and view the land or land and dwelling‑house in respect of which the contract of sale has been entered into or the advance has been made, and if the occupier of the land or the land and dwelling‑house fails or refuses on demand to permit an inspector or valuer so to enter and view or, if the land or land and dwelling‑house is unoccupied the inspector or valuer may enter (if necessary by force) upon and view the land or land and dwelling‑house.
26 Payment by applicant of interest on progress payments
(1) Where the Corporation erects a dwelling‑house on behalf of an applicant for the purchase of a dwelling‑house erected under section 17 of the Act, the applicant shall be liable to the Corporation for interest on progress payments made to a contractor from the date of each respective payment by the Corporation, and such interest shall be paid to the Corporation in such manner and at such time or times as the Corporation in each case determines.
(2) Interest referred to in subregulation (1) is payable:
(a) where the amount of advance, in the particular case, does not exceed $12,000 — at the rate of 3.75 per cent per annum;
(b) where the amount of advance, in the particular case, exceeds $12,000 but does not exceed $15,000:
(i) at the rate of 3.75 per cent per annum in respect of so much of the amounts paid in progress payments as equals that portion of the amount of advance that does not exceed $12,000; and
(ii) at the rate of 7.25 per cent per annum in respect of any further amounts paid in progress payments; and
(c) where the amount of advance, in the particular case, exceeds $15,000:
(i) at the rate of 3.75 per cent per annum in respect of so much of the amounts paid in progress payments as equals that portion of the amount of advance that does not exceed $12,000;
(ii) at the rate of 7.25 per cent per annum in respect of so much of the amounts paid in progress payments as equals that portion of the amount of advance that exceeds $12,000 but does not exceed $15,000; and
(iii) at the rate of 10 per cent per annum in respect of any further amounts paid in progress payments.
Part VI Advances on mortgage for purposes of homes
Division 1 General
28 Purpose of advance to be specified
Each application for an advance shall specify the purpose for which the advance is required and the amount of the advance required.
29 Advance not to be made until mortgage executed
No advance shall be made and no instalment thereof shall be paid until the borrower has executed a mortgage in accordance with a form and containing conditions approved by the Corporation and securing the full amount of the advance.
30 Plans and specifications
The plans and specifications of a dwelling‑house, in respect of which an application for an advance is made for any of the purposes specified in paragraphs (a), (b), (d) and (e) of section 20 of the Act, shall comply with the following conditions:
(a) Each plan shall show:
(i) a plan of the building, section and two elevations;
(ii) general construction;
(iii) figured dimensions;
(iv) levels and falls;
(v) working details for all construction and built‑in fixtures; and
(vi) by a block plan, the position of all buildings and the water and drainage systems to be installed.
(b) Every specification shall clearly describe the whole of the work and materials required for carrying out the construction of the building.
31 Account of disbursement of advance
The borrower shall whenever required so to do by the Corporation or by a State Savings Bank or other institution prescribed under section 50 of the Act, furnish a full and true account, verified by statutory declaration, of the manner in which the advance or any instalment thereof has been disbursed.
Division 2 Advances by Instalments
32 Advances by instalments
(1) An advance for a purpose referred to in paragraph 20 (1) (a), (b), (d) or (e) of the Act may be made by instalments.
(2) Where a builder is employed by an applicant for an advance or a borrower, or by the Corporation in pursuance of an agreement with an applicant for an advance or with a borrower for the erection, completion or enlargement of a dwelling‑house by the Corporation under section 17A of the Act, the Corporation may pay instalments of the advance direct to the builder as progress payments, and any such payment shall be deemed to be payment of an instalment of the advance to the applicant or borrower.
33 Definition of work
In this division of this Part the word work means the work of erecting, completing or enlarging a dwelling‑house.
35 Application for each instalment
Where an applicant for an advance or a borrower is erecting, completing or enlarging a dwelling‑house himself, or is employing a builder for the purpose of the work, an instalment or further instalment of an advance is not payable unless the applicant or borrower applies to the Corporation in writing for that payment.
36 Certificates of value
(1) An authorized person may give certificates of value of dwelling‑houses which are being erected, completed or enlarged.
(2) A certificate of value signed by an authorized person and approved by the Corporation shall, as against the applicant for an advance or the borrower, be conclusive evidence of the value of the dwelling‑house at the date of the certificate.
37 Amount of instalments
The amount of any instalment, being an instalment that relates to the erection, completion or enlargement of a dwelling‑house, shall not exceed 90 per centum of the value of the dwelling‑house as certified by a certificate of value under these Regulations less all amounts previously advanced under the Act in respect of the dwelling‑house and unrepaid.
38 Valuation fee
The borrower shall for each certificate of value given for the purpose of an instalment pay to the Corporation such valuation fee (if any) as is fixed by the Corporation.
39 Deduction of valuation fee from amount of instalment
The Corporation may, if it thinks fit, deduct the valuation fee from the amount of the instalment and in that case the borrower shall, notwithstanding the deduction, be deemed to have received the instalment in full.
40 Preservation of dwelling‑house
The applicant for an advance or the borrower shall at all times during the progress of the work to the best of his ability preserve the dwelling‑house from destruction or damage.
42 Failure to proceed with work satisfactorily
If an applicant for an advance or a borrower who is erecting, completing or enlarging a dwelling‑house himself or is employing a builder for the purpose of the work:
(a) fails to proceed with the work at a rate and in a manner satisfactory to the Corporation; or
(b) fails to proceed with the work in accordance with the plans and specifications of the dwelling‑house approved by the Corporation;
the Corporation may:
(c) by notice in writing require the applicant or borrower to proceed with the work at the rate and in the manner specified in the notice; and
(d) withhold payment of any instalment or further instalment of the advance until the applicant or borrower proceeds with the work to the satisfaction of the Corporation.
43 Default by applicant or borrower
(1) If an applicant for an advance or a borrower who is erecting, completing or enlarging a dwelling‑house himself or is employing a builder for the purpose of the work:
(a) fails to proceed with the work at the rate and in the manner specified in a notice given by the Corporation;
(b) fails in the opinion of the Corporation during the progress of the work to preserve to the best of his ability the dwelling‑house from destruction or damage; or
(c) fails in any way to comply with the conditions under which the advance is being made;
he shall be deemed to be in default under the mortgage and the Corporation may:
(d) by notice in writing at once call in the amount secured by the mortgage whether as principal, interest or otherwise; or
(e) enter on the land that is the subject of the mortgage and complete the work either by contract or otherwise.
(2) Where the Corporation completes the work in the circumstances referred to in paragraph (e) of the last preceding subregulation, the amount expended by the Corporation shall be deemed to have been advanced to and be due by the applicant or borrower under the mortgage.
43A Default of builder building for the Corporation
Where the Corporation has entered into a contract with a builder for the erection, completion or enlargement of a dwelling‑house in pursuance of an agreement with an applicant for an advance, or a borrower, for that erection, completion or enlargement by the Corporation under section 17A of the Act and the Corporation cancels the contract or takes the work out of the hands of the builder and arranges for the completion of the work either by contract or otherwise, the amount expended by the Corporation in that completion shall be deemed to have been advanced to the applicant or borrower under the mortgage.
44 Interest
(1) Interest chargeable in accordance with the Act on each and every instalment of an advance:
(a) shall be payable by the borrower from the date of payment of the instalment by the Corporation; and
(b) shall be paid to the Corporation in such manner and at such time or times as the Corporation in each case determines.
Part VII Insurance of dwelling‑houses
45 Certain dwelling‑houses deemed to be insured
Dwelling‑houses in which the Corporation has an interest, not being dwelling‑houses that are otherwise insured with the Corporation or to which subsection 38 (4D) of the Act applies, shall be deemed to be insured with the Corporation.
46 Corporation may pay premiums on behalf of itself or another person
The Corporation may, in respect of dwelling‑houses in which the Corporation has an interest, pay insurance premiums on behalf of itself or another person.
Part VIIA Tenancies under section 30A of the Act
74A Period of tenancy and rental
In the case of a tenancy under section 30A of the Act:
(a) the term of the tenancy shall be the same as the period allowed for the payment of the purchase money or the repayment of the advance; and
(b) the rental payable in respect of the tenancy shall be the same, both as to amounts and as to times of payment, as the instalments in which the purchase money or advance, together with any interest, is to be paid or repaid.
74B Terms and conditions of tenancy
(1) For the purposes of section 30A of the Act, a purchaser or a borrower who is a tenant under that section shall, in addition to the terms and conditions contained in the contract of sale, mortgage or other security, comply with the following terms and conditions:
(a) the tenant shall not allow any part of the rental payable in respect of the tenancy or any instalment or money payable in respect of the contract of sale or advance to remain unpaid after the time appointed for the payment;
(b) the tenant shall not become bankrupt or insolvent or do or omit to do anything that results in the land and dwelling‑house which is the subject of the contract of sale or advance being seized in execution.
(2) For the purposes of the exercise by the Corporation of the power to determine a tenancy conferred upon it by subsection (2) of section 30A of the Act, a tenant shall not be deemed to have failed to comply with the condition prescribed by paragraph (a) of the last preceding subregulation unless a part of the rental payable in respect of the tenancy or any instalment or money payable in respect of the contract of sale or advance has remained unpaid for three months after the time appointed for the payment.
74C Determination of tenancy
(1) For the purposes of the determination of a tenancy under subsection (2), (2A) or (3) of section 30A of the Act, the Corporation shall serve upon the tenant a notice of determination of tenancy in accordance with Form B.
(2) A tenancy determined under subsection (2), (2A) or (3) of section 30A of the Act shall be deemed to have been determined at the time of the service of the notice referred to in the last preceding subregulation.
74D Notice of intention to apply for a warrant
Where the Corporation has determined a tenancy under subsection (2), (2A) or (3) of section 30A of the Act and intends to make an application to the Court for a warrant under subsection (5) of that section, the Corporation shall cause to be served upon the person who was the tenant under the tenancy a notice of intention to apply for a warrant, in accordance with Form C, not less than seven days before the day stated in the notice as the day on which the application will be made.
74DA Determination of tenancy by death
Where a tenancy of a dwelling‑house has been determined by the death of the tenant, the Corporation, if it intends to make an application to the Court for a warrant under subsection (5) of section 30A of the Act, shall cause to be served on the occupier of the dwelling‑house a notice of intention to apply for a warrant, in accordance with Form C, not less than seven days before the day stated in the notice as the day on which the application is to be made.
74E Service of notices
A notice under this Part may be served:
(a) by leaving a true copy of the notice with or tendering a true copy of the notice to:
(i) the tenant or the person who was the tenant under the tenancy, as the case requires; or
(ii) a person apparently over the age of sixteen years at the dwelling‑house, the subject of the tenancy, and apparently an inmate of the dwelling‑house;
(b) by affixing a true copy of the notice in a prominent position on the front or other door of the dwelling‑house, the subject of the tenancy; or
(c) by posting a true copy of the notice in a prepaid registered letter addressed to the tenant or the person who was the tenant under the tenancy, as the case requires, at the dwelling‑house, the subject of the tenancy.
74F Proof of service
The service of a notice under this Part may be proved by an affidavit of service, in accordance with Form CA, indorsed on the notice.
74G Initiation of court proceedings
(1) For the purpose of initiating proceedings for an application to a Court under subsection (5) of section 30A of the Act, the Corporation shall cause the notice of intention to apply for a warrant and the affidavit of service to be left with the clerk of the Court at least two days before the day specified in the notice as the day upon which the application is to be made.
(2) Where a notice and affidavit are left with the clerk of the Court in pursuance of the last preceding subregulation, the application shall be included in the list of matters to be dealt with by the Court on the day specified in the notice as the day upon which the application is to be made.
74H Form of warrant
A warrant issued under subsection (5) of section 30A of the Act shall be in accordance with Form D.
Part VIII Miscellaneous
74J Operational areas
The area of Malaya and the area of the Island of Singapore and its dependencies, other than Christmas Island, are operational areas for the purposes of paragraph (d) of subsection (2) of section 4 of the Act.
75 Notice of removal and storage
(1) A notice to be published under subsection (2) of section 30B of the Act shall be in accordance with Form E.
(2) Where a notice referred to in the last preceding subregulation is published under subsection (2) of section 30B of the Act, there shall be published with that notice:
(a) where that publication of the notice is the first publication of the notice — a statement to the effect that, after the expiration of a period of three months after a further publication of the notice, the Corporation will be empowered, by virtue of that section, to cause the goods referred to in the notice to be sold by public auction or, if it determines that the goods are valueless or that for some other reason it is not practicable to sell the goods by public auction, to cause the goods to be otherwise disposed of or to be destroyed; or
(b) where that publication of the notice is the second publication of the notice — a statement to the effect that, after the expiration of a period of three months after that publication, the Corporation will be empowered, by virtue of that section, to cause the goods referred to in the notice to be so sold or otherwise disposed of or destroyed.
76 Service of notices
Except as provided in regulation 74E of these Regulations, any notice required by these Regulations to be given may be served personally or by post, and, if required to be given to a purchaser or borrower, shall be deemed to have been duly given:
(a) if served personally or by post upon the purchaser or borrower either at the dwelling‑house purchased from, or in respect of which an advance has been made by, the Corporation, or at the last known address of the purchaser or borrower, or
(b) in the event of the death of the purchaser or borrower:
(i) where probate or letters of administration have been granted — if served personally or by post upon the executor or administrator of the estate of the purchaser or borrower; or
(ii) where probate or letters of administration have not been granted — if served personally or by post upon the occupier of the land or dwelling‑house purchased from, or in respect of which an advance has been made by, the Corporation or, in the event of there being no occupier, if affixed upon some conspicuous part of the land or dwelling‑house.
77 Proof of signature of Secretary etc
Any certificate, insurance policy, notice or other document purporting to bear the written, stamped or printed signature of the Secretary, his delegate, or an authorized person, shall, until the contrary is proved, be deemed to have been duly signed by the person by whom it purports to be signed.
78 Evidence in proceedings under section 30A
(1) In any proceedings instituted by or on behalf of the Corporation for the recovery of possession of any dwelling‑house and land in pursuance of section 30A of the Act a certificate in writing given by the Corporation certifying that:
(a) a person named in the certificate:
(i) purchased the dwelling‑house and land described in the certificate from the Defence Service Homes Corporation, or from the State Bank of South Australia or a State authority referred to in the definition of Bank contained in the Agreement set forth in the Schedule to the War Service Homes (South Australia) Agreement Act 1934, as the case may be; or
(ii) received an advance from, or executed a mortgage or other security to, the Defence Service Homes Corporation or the State Bank of South Australia or a State authority referred to in the definition of Bank contained in the Agreement set forth in the Schedule to the War Service Homes (South Australia) Agreement Act 1934, as the case may be, in respect of the dwelling‑house and land described in the certificate; and
(c) the person so named failed to comply with a prescribed term or condition or a term or condition contained in the contract of sale, mortgage or other security in the respect or respects specified in the certificate;
shall be prima facie evidence of the matters so certified.
(3) In any proceedings to which this regulation applies, it shall not be necessary to prove the signature of any person to any agreement, contract or mortgage relating to the dwelling‑house and land of which recovery of possession is sought, if the Corporation certifies in writing that the agreement, contract or mortgage is the original document filed in the office of the Corporation in respect of that dwelling‑house and land, and that agreement, contract or mortgage shall be deemed to have been signed by the person or persons whose signature or signatures it purports to bear.
78A Use and disclosure of personal information —prescribed purposes
(1) For subsection 45C (2) of the Act, the following purposes are prescribed:
(a) determining a person’s eligibility for a subsidy under the Act, including whether or not the person continues to be eligible;
(b) determining the amount of a subsidy payable for a person, including correcting or updating the amount of subsidy;
(c) deciding whether or not to authorise subsidy payments;
(d) identifying errors in payment of subsidy, including overpayments;
(e) making findings on internal review of a reviewable decision, and implementing the findings;
(f) administering eligibility and entitlements under the Act, including correcting or updating a person’s subsidy amount;
(g) any other purpose that is reasonably necessary for the administration of the Act;
(h) determining a person’s eligibility for a subsidy under a related Act, including whether or not the person continues to be eligible;
(i) any other purpose that is reasonably necessary for the administration of a related Act.
(2) In this regulation:
related Act means:
(a) the Defence Force (Homes Loans Assistance) Act 1990; and
(b) the Defence Home Ownership Assistance Scheme Act 2008.
79 Proof of account with Corporation
A certificate given by the Corporation containing a statement of the account of a purchaser or tenant, to whom land has been sold or leased under section 48 of the Act, shall be evidence of the matters stated.
81 Prescribed authority of Department of Veterans’ Affairs
Each person who is a Deputy Commissioner within the meaning of the Repatriation Regulations is, for the purposes of section 47 of the Act, a prescribed authority of the Department of Veterans’ Affairs.
82 Forms
Strict compliance with the Forms in the Schedule to these Regulations is not necessary and substantial compliance is sufficient.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Defence Service Homes Regulations 1936
Statutory Rules 1936 No. 74 as amended
made under the
Defence Service Homes Act 1918
This compilation was prepared on 3 September 2008
taking into account amendments up to SLI 2008 No. 176
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
Part 1 Preliminary
1 Name of Regulations [see Note 1]
2 Repeal
3 Parts
4 Interpretation
Part II Applications for homes and advances
5 Applications for homes
6 Applications — how dealt with
7 Certificate of State Manager as to eligibility etc of applicant
8 Appeals
8A Securities by minors
Part III Mortgage to secure balance of purchase money
9 Form of mortgage
10 Notice of intention to execute mortgage
Part IV Conditions of contracts of sale and advances
11 Fees, charges and costs
13 Corporation to hold title deeds until mortgage discharged
14 Borrower to observe Acts and regulations applicable to home etc
15 Proof of account with Corporation
16 Power of Corporation where mortgage property seized in execution to call in amount secured
17 Remedies where default by borrower
18 Payment for repairs
20 Removal of fittings or fixtures
21 Power of Corporation where purchaser or borrower not an eligible person
22 Failure by purchaser or borrower to pay rates etc
23 Appropriation of amounts paid to Corporation
24 Inspection and valuation of land and dwelling‑house
26 Payment by applicant of interest on progress payments
Part VI Advances on mortgage for purposes of homes
Division 1 General
28 Purpose of advance to be specified
29 Advance not to be made until mortgage executed
30 Plans and specifications
31 Account of disbursement of advance
Division 2 Advances by Instalments
32 Advances by instalments
33 Definition of work
35 Application for each instalment
36 Certificates of value
37 Amount of instalments
38 Valuation fee
39 Deduction of valuation fee from amount of instalment
40 Preservation of dwelling‑house
42 Failure to proceed with work satisfactorily
43 Default by applicant or borrower
43A Default of builder building for the Corporation
44 Interest
Part VII Insurance of dwelling‑houses
45 Certain dwelling‑houses deemed to be insured
46 Corporation may pay premiums on behalf of itself or another person
Part VIIA Tenancies under section 30A of the Act
74A Period of tenancy and rental
74B Terms and conditions of tenancy
74C Determination of tenancy
74D Notice of intention to apply for a warrant
74DA Determination of tenancy by death
74E Service of notices
74F Proof of service
74G Initiation of court proceedings
74H Form of warrant
Part VIII Miscellaneous
74J Operational areas
75 Notice of removal and storage
76 Service of notices
77 Proof of signature of Secretary etc
78 Evidence in proceedings under section 30A
78A Use and disclosure of personal information —prescribed purposes
79 Proof of account with Corporation
81 Prescribed authority of Department of Veterans’ Affairs
82 Forms
83 Payments by purchaser or borrower
The Schedule
Form B Notice of determination of tenancy
Form C Notice of intention to apply for a warrant under Section 30A of the Act
Form CA Affidavit of service
Form D Warrant to enter and give possession to the defence service homes corporation
Form E Notice of removal and storage of goods
Notes
Part 1 Preliminary
1 Name of Regulations [see Note 1]
These Regulations are the Defence Service Homes Regulations 1936.
2 Repeal
The War Service Homes Regulations (Statutory Rules 1926, No. 171, as amended by Statutory Rules 1927, No. 113; 1928, Nos. 21, 55, 84; 1929, Nos. 2, 47, 118; 1930, Nos. 9, 20; 1931, No. 119; 1932, Nos. 56, 104, 134, 141; 1933, No. 124; 1934, No. 106; and 1935, Nos. 58, 82, 134) are repealed.
3 Parts
These Regulations are divided into Parts, as follows:
Part I — Preliminary (Regulations 1–4)
Part II — Applications for Homes and Advances (Regulations 5–8A)
Part III — Mortgage to Secure Balance of Purchase Money (Regulations 9–10)
Part IV — Conditions of Contracts of Sale and Advances (Regulations 11–26)
Part V — Modifications and Adaptations of the Lands Acquisition Act 1955 (Regulations 27–27M)
Part VI — Advances on Mortgage for Purposes of Homes
Division 1 — General (Regulations 28–31)
Division 2 — Advances by Instalments (Regulations
32–44)
Part VII — Insurance of Dwelling‑Houses and Building Material (Regulations 45–74)
Part VIIA — Tenancies under Section 30A of the Act (Regulations 74A–74H)
Part VIII — Miscellaneous (Regulations 74J–83).
4 Interpretation
(1) In these Regulations, unless the contrary intention appears:
applicant means any person who has made an application for the purchase of a home or for an advance under the Act, and includes a purchaser or a borrower.
authorized person means a person or institution authorized in writing by the Corporation to exercise the powers or functions in respect of which the expression is used.
home means a dwelling‑house and the land upon which it is erected.
State Manager means a person for the time being occupying, or performing the duties of, an office in the Australian Public Service designated as:
(a) State Manager, Defence Service Homes Corporation; or
(b) Manager, Defence Service Homes Corporation.
the Act means the Defence Service Homes Act 1918.
(2) Any reference in these Regulations to an eligible person shall be read as including a reference to persons with whom the Corporation proposes to enter, or has entered, into any transaction in accordance with subsection (1) of section 4A of the Act.
Part II Applications for homes and advances
5 Applications for homes
Applications for homes or for advances under the Act shall be made in writing to a State Manager in the manner and on the form approved by the Director.
6 Applications — how dealt with
Applications shall be dealt with in the manner laid down in the General Orders issued by the Corporation.
7 Certificate of State Manager as to eligibility etc of applicant
A State Manager or an authorized person shall, on receipt of an application for a home or for an advance, certify whether the applicant is an eligible person and whether the State Manager or the authorized person is satisfied that the applicant has a reasonable prospect of carrying out the terms of the contract of sale or the mortgage in respect of the advance into which he is desirous of entering.
8 Appeals
(1) Where an applicant is dissatisfied with the certificate given in pursuance of the last preceding regulation, he may appeal in writing to the State Manager or the authorized person, as the case may be, stating fully the grounds of his appeal.
(2) Upon receipt of the appeal the State Manager or the authorized person, as the case may be, shall reconsider the case, and may either grant a fresh certificate, or forward the appeal, together with the file and such report as he considers necessary, to the Corporation for decision.
(3) The decision of the Corporation shall be final.
8A Securities by minors
Where an applicant is an infant or minor he may give a security and the security shall have the same effect and may be enforced to the same extent as if he were not an infant or minor.
Part III Mortgage to secure balance of purchase money
9 Form of mortgage
For the purposes of subsection (6) of section 19 of the Act, the prescribed form of mortgage shall be such form as is required for registration under the law of the State or Territory of the Commonwealth in which the land is situated.
10 Notice of intention to execute mortgage
Any purchaser may execute a mortgage to the Corporation in pursuance of subsection (6) of section 19 of the Act upon giving to the Corporation one months' notice of his intention to do so.
Part IV Conditions of contracts of sale and advances
11 Fees, charges and costs
(1) The following fees, charges and costs shall be payable by the applicant:
Valuation fees;
Survey fee;
Charges for services of architects and inspectors and of officers or servants of the Corporation in connexion with the preparation and perusal of legal documents as determined by the Corporation;
All fees in connexion with transfers and mortgages (searches, registrations, new titles, extra titles, etc);
Stamp duty; and
Costs payable to the Commonwealth Crown Solicitor or his representatives.
(2) The Corporation may require the applicant to pay the fees, charges and costs referred to in this regulation as soon as they become due or immediately after they have been paid, or may direct that they be added to the amount of the purchase money or advance or deducted from the amount of any advance, and in the last‑mentioned case the borrower will be deemed to have received the advance in full.
13 Corporation to hold title deeds until mortgage discharged
The title deeds of land mortgaged to the Corporation shall remain in the custody of the Corporation so long as any money remains due and unpaid under the mortgage.
14 Borrower to observe Acts and regulations applicable to home etc
Subject to section 17B of the Act, each borrower shall in all respects conform to the provisions and regulations of any general or local Act of Parliament or local authority which may be applicable to the home or the work of erecting, completing or enlarging the dwelling‑house.
15 Proof of account with Corporation
A certificate given by the Corporation containing a statement of the account of a purchaser, a borrower, a tenant or an applicant with the Corporation shall be evidence of the matters stated.
16 Power of Corporation where mortgage property seized in execution to call in amount secured
Where any land mortgaged to the Corporation is seized in execution, the Corporation may by notice in writing at once call in the amount secured by the mortgage whether as principal interest or otherwise.
17 Remedies where default by borrower
Where:
(a) the Corporation calls in an amount secured by a mortgage; or
(b) in accordance with an agreement for the erection, completion or enlargement of a dwelling‑house by the Corporation under section 17A of the Act, the amount secured by a mortgage becomes repayable;
the borrower shall forthwith pay that amount, and, in default, the borrower shall be deemed to be in default in repayment of the principal sum secured by the mortgage and the Corporation shall have the same remedies for the recovery of that principal sum (including any accrued interest) as are provided by or under the mortgage or by the Act or these Regulations for the recovery of sums payable by the borrower.
18 Payment for repairs
(1) Where the Corporation effects repairs in pursuance of subsection (2) of section 31 of the Act, the expenses thereby incurred, together with interest chargeable in accordance with the Act, shall be repayable by the purchaser or borrower by such weekly, fortnightly, or monthly instalments, and within such period, as the Corporation determines.
(2) The Corporation shall estimate the cost of the repairs prior to the repairs being effected, and shall notify the estimated cost to the purchaser or borrower.
(3) Any failure by the Corporation to notify the estimated cost of repairs to the purchaser or any notification of an estimated cost which is lower than the actual cost shall not relieve the purchaser or borrower from his liability to repay the expenses incurred in effecting the repairs, and the interest.
20 Removal of fittings or fixtures
If the dwelling‑house or any part thereof or any materials of which it is constructed or any fittings or fixtures thereon or therein are, without the consent in writing of the Corporation, removed from land subject to a contract of sale or mortgage, the Corporation may exercise all or any of the powers conferred upon it by section 31 of the Act to the same extent as if after notice in writing by the Corporation the purchaser or borrower had not complied with the requirements of that section.
21 Power of Corporation where purchaser or borrower not an eligible person
If it is proved to the satisfaction of the Corporation that at the date of the contract of sale or advance the purchaser or borrower was not an eligible person under the Act the Corporation may exercise all or any of the powers conferred upon it by section 36 of the Act to the same extent as if an instalment or money payable in respect of the contract of sale or advance had been unpaid for three calendar months next after the time appointed for the payment thereof.
22 Failure by purchaser or borrower to pay rates etc
(1) Except in cases where a condition has been inserted in the contract of sale, mortgage or other security in pursuance of section 37 of the Act, upon a failure by a purchaser or borrower to pay as it falls due any sum payable for rates, taxes, charges, assessments or outgoings in respect of the land or dwelling‑house which is subject to a contract of sale or mortgage, the Corporation may, if it thinks fit, pay the sum due, and may recover the amount paid, or any portion thereof, together with interest at the rate payable under the contract or mortgage, by action against the purchaser or borrower in any Court of competent jurisdiction.
(2) In any action for the recovery of rates, taxes, charges, assessments or outgoings under the last preceding subregulation a certificate in writing given by the Corporation, certifying that the sum named in the certificate was due by the purchaser or borrower and that it was still unpaid shall be prima facie evidence of the facts stated in the certificate.
(3) Any amount paid by the Corporation under subregulation (1) of this regulation shall, until repayment, be a charge under the contract of sale, mortgage or other security upon the property.
23 Appropriation of amounts paid to Corporation
When an amount is paid to the Corporation by a purchaser or borrower, the amount shall be appropriated by the Corporation in the following order:
(a) first, in payment of any moneys owing by the purchaser or borrower:
(i) under subsection 30B (7) of the Act;
(ii) in respect of fees, charges or costs payable under regulation 11;
(iii) in repayment of any moneys paid by the Corporation on behalf of the purchaser or borrower other
than moneys paid by the Corporation under subsection 29AA (4) or (5) or paragraph 31 (2) (a) or 36 (1C) (a) of the Act; and
(iv) for interest that has accrued on any moneys to which subparagraphs (ii) and (iii) apply;
(b) second, in payment of any insurance premiums due by the purchaser or borrower;
(c) third, in payment of interest due by the purchaser or borrower (other than interest to which paragraph (a) applies) in respect of:
(i) any purchase money or advance under the Act;
(ii) any costs charged against the purchaser or borrower under subsection 18A (3) of the Act;
(iii) any amounts paid by the Corporation on behalf of the purchaser or borrower under subsection 29AA (4) or (5) or paragraph 31 (2) (a) of the Act; and
(iv) any expenses incurred by the Corporation in effecting repairs under paragraph 36 (1C) (a) of the Act;
where the interest has accrued at the rate specified in subsection 30 (1) of the Act;
(d) fourth, in payment of interest due by the purchaser or borrower (other than interest to which paragraph (a) applies) in respect of:
(i) any purchase money or advance under the Act;
(ii) any costs charged against the purchaser or borrower under subsection 18A (3) of the Act;
(iii) any amounts paid by the Corporation on behalf of the purchaser or borrower under paragraph 31 (2) (a) of the Act; and
(iv) any expenses incurred by the Corporation in effecting repairs under paragraph 36 (1C) (a) of the Act;
where the interest has accrued at the rate specified in paragraph 30 (2) (a) of the Act;
(da) fifth, in payment of interest due by t
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