Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Where an owner or
a tenant under an agreement gives notice of termination to the other under
this Act and the tenant fails to deliver up possession of the premises on the
day specified, the owner may, subject to section 62(5)(a), within
30 days after that day, apply to a competent court for an order
terminating the agreement and an order for possession of the premises.
(2) Subject to this
section, a competent court shall, upon application under this section, make an
order terminating the agreement and an order for possession of the premises,
if it is satisfied —
(a) that
notice of termination was given by the owner or tenant to the other and that
it complied with and was given in accordance with this Act; and
(b)
where the notice was given by the owner upon a particular ground prescribed by
this Act, that the owner has established that ground and, in the case of
notice upon the ground of a breach by the tenant of a term of the agreement,
that the breach is in all the circumstances such as to justify termination of
the agreement.
(3) Notwithstanding
subsection (2) the court may —
(a)
except where the premises the subject of the agreement are the principal place
of residence of the owner, suspend the operation of orders made under that
subsection for a period not exceeding 30 days, if it is satisfied that it
is desirable to do so having regard to the relative hardship that would be
caused —
(i)
to the owner by suspending the orders; or
(ii)
to the tenant by not suspending the orders;
or
(b)
refuse to make the orders under that subsection, if it is
satisfied —
(i)
that the owner was wholly or partly motivated to give the
notice by the fact that the tenant had complained to a public authority or
taken steps to secure or enforce his rights as a tenant;
(ii)
in the case of notice given by the owner upon the ground
of a breach by the tenant, that the tenant has remedied the breach, but in
every case the court shall take into account any previous breaches of the
agreement by the tenant; or
(iii)
in the case of notice given by the owner upon the ground
referred to in section 69, that the consequences of the owner continuing
to be bound by the agreement would not be unduly burdensome to the owner.
(4) Where in any
proceedings upon an application under this section the court is satisfied that
the tenant had, within the period of 6 months before notice was given by
the owner, complained to a public authority or taken steps to secure or
enforce his rights as a tenant, the burden shall lie on the owner to prove
that he was not wholly or partly motivated to give notice by that fact.
(5) Subject to
subsection (3)(a), where the court terminates an agreement and makes an
order for possession of the premises under this section, it shall specify the
day as from which the orders shall operate, being not more than 7 days
after the day on which the orders are made.
(6) The
Limitation Act 2005 does not apply to or in relation to an application
under this section.
[Section 71 amended by No. 50 of 1988
s. 18; No. 59 of 1995 s. 51; No. 59 of 2004 s. 120;
No. 20 of 2005 s. 23.]