New South Wales Consolidated Acts

LANDLORD AND TENANT (AMENDMENT) ACT 1948 - SECT 17A

17A Fixing of rent of prescribed premises by agreement

(1) Where:

(a) before the date upon which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, an agreement made or purporting to have been made under the section that this section replaces had been executed by the lessee of any prescribed premises, and

(b) that agreement:

(i) was expressed to be in force for a specified period (whether or not it was also expressed to continue in force after the expiration of that specified period) and that specified period had not, on or before that date, expired, or

(ii) did not contain any provision expressing it to be in force for a specified period but contained a provision fixing the fair rent of the premises as on and from a day being less than twelve months before that date,

the amount specified in the agreement as the rent shall, without any determination or further determination being made, be for all purposes the fair rent and the rent of the premises without goods or together with goods, as the case may be, on and from that date or the day specified in that behalf in the agreement not being earlier than the day on which the agreement was executed by the lessee, whichever is the later.

(2) Where:

(a) before the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, an agreement made or purporting to have been made under the section that this section replaces had been executed by the lessee of any prescribed premises,

(b) that agreement:

(i) was expressed to be in force for a specified period (whether or not it was also expressed to continue in force after the expiration of that specified period) and that specified period had, on or before that date, expired, or

(ii) did not contain any provision expressing it to be in force for a specified period but contained a provision fixing the fair rent of the premises as on and from a day being, or being more than, twelve months before that date, and

(c) the lessee, in respect of the rent payable in respect of the premises on the due date for the payment of the rent that last occurred before that firstmentioned date, paid to the lessor as rent of the premises the amount specified in the agreement as rent,

the amount specified in the agreement as the rent shall, without any determination or further determination being made, be for all purposes the fair rent and the rent of the premises without goods or together with goods, as the case may be, on and from that firstmentioned date.

(3) Where on or after the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 is signified, an agreement in writing is entered into by the lessor and lessee of any prescribed premises leased with or without goods and under that agreement the lessor and lessee agree as to the amount of the rent to be paid by the lessee to the lessor in respect of the premises, the rent shall, without any determination or further determination being made, be for all purposes the fair rent and the rent of the premises without goods or together with goods, as the case may be, on and from the day specified in that behalf in the agreement not being earlier than the day on which the agreement is executed by the lessee.

(4) Notwithstanding anything contained in any agreement referred to in subsection (1), (2) or (3), the rent fixed under any such subsection shall continue to be the fair rent and the rent of the premises without goods or together with goods, as the case may be:

(a) until it is varied by a further agreement referred to in subsection (3), or

(b) until it is varied pursuant to an application made under subsection (12) or (13) or Division 4AA,

whichever first occurs.

(5) Notwithstanding any other provision of this Act, except subsections (12) and (13) and Division 4AA, no proceedings for the determination, and no application for the assessment, of the fair rent of any premises the fair rent of which is fixed under subsection (1), (2) or (3) shall be commenced or lodged under this Act.

(6) In subsections (1), (2) and (3), "agreement" means an agreement:

(a) that is or was registered in the Department within three months after the day on which it was executed by the lessee, and

(b) except where the lessee is a company or other body corporate:

(i) the execution of which by the lessee was witnessed by a solicitor instructed and employed independently of the lessor or by a registrar of the Local Court, and

(ii) that bears a certificate by that solicitor or registrar of the Local Court that he or she explained the agreement to the lessee before it was executed by him or her.

(7) An application for the registration under this section of an agreement shall be made in writing to the Director-General and shall be accompanied by:

(a) the original agreement and a copy thereof, which copy:

(i) shall be certified to be a true copy by the lessor, the lessor’s solicitor or an agent of the lessor, and

(ii) shall be so certified in a manner approved by the Director-General, and

(b) a fee of two dollars or, where another fee has been prescribed in lieu thereof, by that other fee.

(8) The registration, on or after the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, of an agreement shall be deemed to be effected upon the making of an entry in relation to the agreement, in the manner approved by the Director-General, in a register to be kept by the Director-General for the purposes of this section and the endorsement on the original agreement and certified copy thereof of a memorial of the entry.

(9) After registration under this section of an agreement the original agreement shall be returned to the person by whom the application for registration was made.

(10) A certificate:

(a) purporting to be signed by a solicitor or a registrar of the Local Court, being a certificate referred to in subparagraph (ii) of paragraph (b) of subsection (6), shall be admissible in any proceedings and shall, in all courts and upon all occasions whatsoever, be prima facie evidence of the particulars certified in and by the certificate, or

(b) purporting to be signed by the Director-General or his or her delegate and certifying:

(i) that an agreement specified or referred to in the certificate was registered in the Department on a day specified in the certificate, or

(ii) the particulars referred to in subparagraph (i), that that agreement bears a certificate referred to in subparagraph (ii) of paragraph (b) of subsection (6) purporting to be signed by a solicitor or a registrar of the Local Court, and the particulars certified in and by the certificate that the lease bears,

shall be admissible in any proceedings and shall, in all courts and upon all occasions whatsoever, be prima facie evidence of the particulars referred to in subparagraph (i) and, where the certificate certifies that the agreement bears a certificate as referred to in subparagraph (ii), of the particulars certified in and by the certificate that the agreement bears, as certified in and by the certificate under this paragraph.

(11) An application for a certificate under paragraph (b) of subsection (10):

(a) may be made by any person,

(b) shall be made in writing to the Director-General, and

(c) shall be accompanied by a fee of five dollars or, where another fee has been prescribed in lieu thereof, by that other fee.

(12) The lessee of any prescribed premises the fair rent of which is fixed under subsection (1), (2) or (3) may, notwithstanding the provisions of subsection (2) of section 32, make application at any time after the agreement in respect of those premises was executed by him or her:

(a) where the prescribed premises are not shared accommodation referred to in section 26E-to a Fair Rents Board, or

(b) where the prescribed premises are any such shared accommodation-to the Director-General,

for a determination of the fair rent of those premises and the Fair Rents Board or the Director-General, as the case may be, shall in accordance with the provisions of this Act, determine the fair rent of those premises where the lessee proves to the satisfaction of the Fair Rents Board or the Director-General, as the case may be, that:

(c) the amount specified in the agreement as rent was, at the time the agreement was executed by the lessee, harsh or unconscionable, or

(d) the agreement was obtained by fraud, duress, intimidation or improper means.

(13) The lessor of any prescribed premises the fair rent of which is fixed under subsection (1), (2) or (3) may, subject to subsection (2) of section 32, make application at any time after the agreement in respect of those premises was executed by the lessee:

(a) where the prescribed premises are not shared accommodation referred to in section 26E-to a Fair Rents Board,

(b) where the prescribed premises are any such shared accommodation-to the Director-General, or

(c) where:

(i) the prescribed premises are not shared accommodation,

(ii) the fair rent of the prescribed premises had been fixed by a determination made under this Part, except Division 4AA, and in force immediately before the time the agreement in respect of those premises was executed by the lessee,

(iii) the application is made under section 24A, and

(iv) the prescribed premises are:

(a) premises referred to in paragraph (a) of subsection (2) of section 24A-to the Director-General, or

(b) premises referred to in paragraph (b) of that subsection-to the clerk of the Fair Rents Board nearest to the premises,

for a determination or assessment of the fair rent of those premises and the Fair Rents Board, the Director-General or the clerk of the Fair Rents Board, as the case may be, shall, in accordance with the provisions of this Act, determine, or make an assessment of, the fair rent of those premises.

(14) Where an application is made to the Director-General or a clerk of a Fair Rents Board in accordance with paragraph (c) of subsection (13), the reference in subsection (3) of section 24A to the existing fair rent of the prescribed premises shall, for the purpose of dealing with the application, be construed as a reference to the fair rent of those premises as last fixed by a determination made under this Part, except Division 4AA, before the fair rent of the premises was fixed under this section.

(15) Any person, whether as principal or agent or otherwise, who procures the execution by a lessee of an agreement referred to in subsection (3) by fraud, duress, intimidation or improper means is guilty of an offence against this Act.

(16) Any provision in an agreement made or purporting to have been made under the section that this section replaces whereby the agreement is expressed to be in force for a specified period and to continue in force thereafter is, and shall be deemed always to have been, to the extent only that it is expressed to be in force after the expiration of that specified period, void.

(17) Where an agreement made or purporting to have been made under the section that this section replaces in relation to any premises:

(a) was expressed to be in force for a specified period (whether or not it was also expressed to continue in force after the expiration of that specified period) and that specified period had expired before the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, or

(b) was not expressed to be in force for a specified period but contained a provision fixing the fair rent of the premises as on and from a day being more than twelve months before that date,

the amount payable in respect of the fair rent and the rent of the premises without goods or together with goods, as the case may be, shall, subject to subsection (2), to any determination made under any of the provisions of this Act and to any further agreement made under the section that this section replaces or this section, be and be deemed always to have been:

(c) in the case of an agreement that was expressed to be in force for a specified period-as on and from the expiration of that specified period, and

(d) in the case of an agreement that was not expressed to be in force for a specified period-as on and from the expiration of the period of twelve months commencing on the day as on and from which the fair rent of the premises was fixed by the agreement,

the amount of the rent properly payable in respect of the premises immediately before the day as on and from which the fair rent of the premises was fixed by the agreement.

(18) Notwithstanding the provisions of subsection (16) or (17), where the lessee of any premises the subject of an agreement referred to in those subsections has, after the expiration of the period referred to in paragraph (c) or (d) of subsection (17) and before the date on which the assent of Her Majesty to the Landlord and Tenant (Amendment) Act 1968 was signified, continued to pay the rent fixed by the agreement, the lessor is not liable to refund the difference between the amount of the rent so fixed and the amount of the rent that would have been payable by the lessee had he or she continued to pay the amount of the rent properly payable in respect of the premises immediately before the day on and from which the fair rent of the premises was fixed by the agreement.

(19) A reference in this section to “the section that this section replaces” shall be construed as a reference to section 17A, as inserted by the Landlord and Tenant (Amendment) Act 1964 , or to that section as amended, as in force at the time the agreement was executed by the lessee.