New South Wales Consolidated Acts

LANDLORD AND TENANT (RENTAL BONDS) ACT 1977 - SECT 11

11 Payment out of rental bonds

(1) In this section:

(a) a reference to an amount of money, in relation to a lease, is a reference to an amount of money equivalent to the amount of money, or part of the amount of money, as the case may require, held on deposit by the Board in respect of that lease, and

(b) where the Board has received a notification referred to in subsection (1A) from a prescribed person or organisation-a reference to a lessee includes a reference to the prescribed person or organisation.

(1A) Where the Board is, or has been, notified that an amount of money held on deposit by the Board in respect of a lease, or that a specified part of such an amount of money, was paid to it by a prescribed person or organisation on behalf of the lessee under the lease, the Board shall, where it is required to pay out to the lessee any part of the amount of money held on deposit, pay to the prescribed person or organisation in priority to any other person so much of the amount that it is required to pay out as does not exceed the amount to which the notification relates.

(2) An application to the Board to pay out an amount of money in respect of a lease shall be in or to the effect of a form approved by the Minister and may:

(a) in the case of an application of a kind referred to in subsection (3)-be made at any time, or

(b) in the case of an application of a kind referred to in subsection (4) or (5)-be made upon termination of the lease.

(3) Subject to subsection (11), where an application under subsection (2):

(a) is made jointly by a lessor and a lessee under a lease,

(b) is made by a lessor under a lease who, in that application, directs the Board to pay out an amount of money to the lessee under that lease, or

(c) is made by a lessee under a lease who, in that application, directs the Board to pay out an amount of money to the lessor under that lease,

the Board shall pay out an amount of money as directed in that application.

(4) Where an application under subsection (2) is made by a lessor under a lease who, in that application, directs the Board to pay out an amount of money to that lessor, the Board shall, unless a notice has been given under subsection (5) in respect of that lease, give, by personal service or by post, notice in writing of the receipt of that application to the lessee under that lease.

(5) Where an application under subsection (2) is made by a lessee under a lease who, in that application, directs the Board to pay out an amount of money to that lessee, the Board shall, unless a notice has been given under subsection (4) in respect of that lease, give, by personal service or by post, notice in writing of the receipt of that application to the lessor under that lease.

(6) Subject to subsection (11), if an application referred to in subsection (4) or (5) is made in respect of part of an amount of money held on deposit by the Board in respect of a lease the Board shall:

(a) in the case of an application referred to in subsection (4)- pay out to the lessee the remainder of that amount, and

(b) in the case of an application referred to in subsection (5)- pay out to the lessor the remainder of that amount.

(7) If a lessee to whom notice has been given under subsection (4):

(a) does not, within 10 days (or, where some other period is prescribed for the purposes of this subsection, that period) after personal service on the lessee of the notice or the date of posting of the notice, as the case may be, notify the Board in writing that the lessee has commenced prescribed proceedings in relation to an amount of money referred to in the notice, or

(b) does so notify the Board, but those proceedings are discontinued,

the Board shall, subject to subsection (11), pay out that amount to the lessor.

(8) If a lessor to whom notice has been given under subsection (5):

(a) does not, within 10 days (or, where some other period is prescribed for the purposes of this subsection, that period) after personal service on the lessor of the notice or the date of posting of the notice, as the case may be, notify the Board in writing that the lessor has commenced prescribed proceedings in relation to an amount of money referred to in the notice, or

(b) does so notify the Board, but those proceedings are discontinued,

the Board shall, subject to subsection (11), pay out that amount to the lessee.

(9) Where a lessor or lessee under a lease has, within the period prescribed by or under subsection (7) or (8), commenced prescribed proceedings in relation to the lease and judgment in those proceedings has been entered in or given by a court or a court or the Tribunal has made an order in those proceedings for the payment of money:

(a) the Board shall:

(i) upon being served with or obtaining a copy of that judgment or order, and

(ii) upon being satisfied that the judgment or order has not been satisfied and no steps to enforce the judgment or order have been taken under any other Act,

pay out an amount of money held by the Board on deposit in respect of that lease, as if it were the person obliged to pay under that judgment or order, or

(b) where the Board is satisfied that:

(i) the judgment has been entered or given, or the order made, and

(ii) that judgment or order has been satisfied (other than as provided in paragraph (a)),

the Board shall pay out that amount of money to the person obliged to pay under that judgment or order.

(10) For all purposes, money paid out by the Board under subsection (9) shall be deemed to be money paid by the person against whom the judgment was obtained or the order was made.

(11) Where, in respect of a lease, the Board would, but for this subsection, be required to pay out an amount of money and that amount of money is in excess of the amount of money held on deposit by the Board in respect of that lease, the Board:

(a) shall refuse to pay out the money,

(b) shall treat applications for payment out of the money as having been withdrawn, and

(c) shall inform the applicants accordingly.

(12) The Board may pay out money in respect of a judgment or order even if there is a right of appeal against the judgment or order, but only if an appeal has not been lodged.

(12A) If an appeal has been lodged, the Board must not pay out money in respect of the judgment or order unless satisfied that the appeal has been withdrawn or dismissed.

(12B) A payment of money by the Board in respect of a judgment or order does not prevent an appeal being lodged.

(13) Where proceedings have not been commenced in relation to an amount of money held by the Board within the period prescribed by or under subsection (7) or (8), a lessor or a lessee may, at any time before a payment is made in accordance with an application made by that lessor or lessee, withdraw that application and, for the purposes of this section, that application shall thereupon be deemed never to have been made.

(14) Where the Board is required to pay out an amount of money to a person under this section, the Board may, instead of paying out that money to that person, pay out or apply that money in accordance with that person’s directions.

(15) For the purposes of this Act, a court or the Tribunal is authorised to issue:

(a) a copy of any entry of a judgment or a copy of an order, in each case certified by the proper officer to be a true copy of the entry or order, and

(b) where proceedings have been discontinued, a certificate to that effect signed by the proper officer.

(16) No claim other than a claim provided in this Act shall lie against the Board in respect of rental bonds deposited with the Board.

(17) This section applies notwithstanding the terms of any agreement, any rule of law or the provisions of any other Act.

(18) The Board may in any particular case extend the period prescribed by or under subsection (9) (a) (i).

(19) In the case of a lease that is terminated because of the operation of section 53 (e) of the Residential Tenancies Act 1987 , the Board may, if authorised to do so in writing by the mortgagee who has become entitled to take possession of the premises to the exclusion of the lessee, pay out to the lessee an amount of money held by the Board on deposit in respect of that lease.