New South Wales Consolidated Acts

LANDLORD AND TENANT (AMENDMENT) ACT 1948 - SECT 32

32 Variation of determination

(1) A determination may be varied:

(a) on application made in the same manner as an application for a determination, or

(b) subject to section 17A, by a Fair Rents Board of its own motion, or by the Director-General of his or her own motion, as the case may be,

and the provisions of this Part relating to determinations shall, so far as applicable and, mutatis mutandis, apply to and in relation to variations of determinations.

(2) During such period as is specified in the determination, or, if no period is so specified, during the period commencing with the date of the determination and ending twelve months after that date, an application shall not be made to vary a determination, or to determine the fair rent of prescribed premises, or of prescribed premises together with goods leased therewith, in respect of which a determination has been made, nor shall a Board of its own motion, nor the Director-General of his or her own motion, vary a determination, except on the ground that:

(a) by an error or omission the determination was incorrectly made,

(b) increased outgoings or losses have been or will be incurred by the lessor by reason of the use made by the lessee of the premises since the date of the determination,

(c) the determination has been based on an incorrect estimate of the value of the premises or of goods leased therewith or of the services supplied by the lessor, or of premises of which the premises form part, or on a clerical error,

(d) there has been a substantial alteration in the terms and conditions upon which the premises are leased,

(e) substantial alterations or additions have been made to the premises, to the goods leased therewith, or to the services supplied by the lessor, since the determination was made,

(f) the value of the goods leased with the premises or of the services supplied by the lessor has materially decreased or increased since the determination was made,

(g) the rent payable by the lessor in respect of the premises has increased or decreased by reason of a determination or a variation of a determination, not being a determination or a variation of a determination made under Division 4AA,

(h) any party to the determination (or to an appeal to a Board from the determination where the determination was made by the Director-General) was prevented by absence, illness, or other cause considered by the Board or Director-General, as the case may be, to be sufficient, from attending or making representations at the proceedings in which the determination was made,

(i) a person entitled under this Act to notice of the time, date and place fixed for the making of the determination, or to notice of the Director-General’s intention to determine the fair rent of shared accommodation, did not in fact receive such notice, or

(j) where the premises are prescribed premises, land tax has, since the determination, become payable or ceased to be payable in respect of the premises by the lessor under the Land Tax Management Act 1956 and the Land Tax Act 1956 , or any Act amending or replacing any such Act or the amount of land tax payable in respect of the premises by the lessor under those Acts has, since the determination, increased or decreased.

In varying the fair rent of any prescribed premises under this section, the Fair Rents Board shall not make any allowance based on paragraph (e) by reason of any improvement or structural alteration (not including decoration, repairs or maintenance) of the premises in excess of eight per centum of the amount, if any, that the Fair Rents Board is satisfied was necessarily expended by the lessor since the determination was made upon any such improvement or structural alteration.

(2A) For the purpose of this section, any reference in section 19, section 24 or section 26B to notice of the time, date and place fixed for the making of a determination shall be read as a reference to notice of the time, date and place fixed for the making of a variation of a determination.

(3) For the purposes of this section, any reference in section 27 to notice of intention to make a determination shall be read as a reference to notice of intention to consider the making of a variation of a determination.

(4) Notwithstanding anything in section 20 or section 21, where an application for variation of a determination is made to a Board or to the Director-General, and it appears to the Board or Director-General, as the case may be, that the premises being a dwelling-house are not in fair and tenantable repair, no increase of rent shall be allowed by the Board or Director-General, as the case may be, on account of any increase in the lessor’s liability for repairs, maintenance and renewals of the premises and fixtures thereon.

(5)

(a) Where a party to a determination (not being a determination in which a period is specified within which an application shall not be made to vary the determination) has, during the period commencing with the date of the determination and ending twelve months after that date, made application under subsection (2) for variation of the determination, he or she shall not, within the last-mentioned period, make further application to a Fair Rents Board or to the Director-General, as the case may be, for variation of the determination unless he or she has first obtained the leave of the Fair Rents Board or the Director-General, as the case may be, to do so.

(b) A Fair Rents Board or the Director-General, as the case may be, may, for the purposes of this section, grant or refuse leave to apply for a variation of the determination without a formal or oral hearing of the persons interested or their representatives.