Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 29(4)]
[Heading amended by No. 19 of 2010
s. 29(2).]
[Heading amended by No. 19 of 2010
s. 29(2).]
1 . Terms used in this Schedule
In this
Schedule —
authorised agent means a public officer appointed
by the bond administrator to be his agent and included in a notice of such
appointment published in the Gazette ;
authorised financial institution
means —
(a) an
ADI (authorised deposit-taking institution) as defined in section 5 of
the Banking Act 1959 of the Commonwealth;
(b) a
bank constituted by a law of a State, a Territory or the Commonwealth; or
(c) any
other body,
that is prescribed or that belongs to a class of
bodies that is prescribed;
bond administrator means the chief executive
officer of the Department.
[Clause 1 amended by No. 31 of 1993
s. 63(a); No. 59 of 1995 s. 54(1)(a); No. 26 of 1999
s. 100(3).]
2 . Where bond moneys to be paid
(1) A person who
receives a security bond paid in relation to a residential tenancy agreement
shall pay the amount of the bond —
(a) to
the bond administrator either directly, including by electronic means, or by
lodging the amount with an authorised agent of the bond administrator, in
which case Parts B and D apply to that security bond; or
(b) to
an authorised financial institution, in which case Parts C and D apply to that
security bond.
(2) A payment under
subclause (1)(a) shall be paid within 14 days of the person’s
receipt of the bond or, in the case of a real estate agent under the
Real Estate and Business Agents Act 1978 , as soon as practicable after
the agent’s receipt of the bond.
(3) A payment under
subclause (1)(b) shall —
(a) if
paid by a real estate agent under the Real Estate and Business Agents
Act 1978 , be paid as soon as practicable after the agent’s receipt
of the bond into an account in the name of the agent entitled “tenancy
bond trust account”, and that account may only be used for the purpose
of holding an amount or amounts paid under subclause (1)(b); and
(b) in
any other case, be paid within 14 days of the receipt of the bond into a
separate account in the names of the owner and the tenant entitled
“tenancy bond account”.
(4) To avoid doubt, an
account referred to in subclause (3)(a) is a trust account for the
purposes of Part VI of the Real Estate and Business Agents Act 1978 .
[Clause 2 amended by No. 59 of 1995
s. 54(1)(b) and (c); No. 69 of 2006 s. 32(1).]
3 . Rental Accommodation Account
(1) An agency special
purpose account called the Rental Accommodation Account is established under
section 16 of the Financial Management Act 2006 , which is to be
administered by the bond administrator.
(2) There shall be
credited to the Rental Accommodation Account —
(a) all
moneys received under clause 2(1)(a), 6(1)(c), and 7(3);
(aa)
money payable to the fund under section 75(3), 92(b) or 94(a)
of the Residential Parks (Long-stay Tenants) Act 2006 ;
(b) all
income arising from the investment of that account, as determined by the
Treasurer; and
(c) any
moneys received under section 79(11),
and there shall be
charged to that account all amounts required to be paid under
clause 5(1).
(3) The income
referred to in subclause (2)(b) and the moneys referred to in
subclause (2)(c) shall be applied —
(a) in
payment of any amount required to be paid by or under section 79(5) or
(6);
(aa) in
payment of any amount required to be paid out of the fund under
section 51 of the Residential Parks (Long-stay Tenants) Act 2006 or
under an order under section 76(3) or 77(2) of that Act;
(ab) in
reimbursement of the costs and expenses incurred for the purposes of the
Residential Parks (Long-stay Tenants) Act 2006 by the bond administrator,
bond agents and the Commissioner in carrying out their respective functions;
(b) in
reimbursement of the costs and expenses incurred, so far as such income and
moneys will allow —
(i)
in the operation and administration of the Magistrates
Court in connection with dealing with minor cases (within the meaning of the
Magistrates Court (Civil Proceedings) Act 2004 ); and
(ii)
in the performance by the bond administrator and his
authorised agents, the Department and the Commissioner of their respective
functions,
that are attributable
to the carrying out of this Act or the
Residential Parks (Long-stay Tenants) Act 2006 ; and
(c) in
payment of any amount required to be paid under subclause (5).
(3a) The income
referred to in subclause (2)(b) and the moneys referred to in
subclause (2)(c) may, with the approval of the Minister, be applied in
payment of grants to bodies, other than public sector bodies within the
meaning of the Public Sector Management Act 1994 , which provide
educational or advisory services to tenants.
(4) The amount to be
reimbursed under subclause (3)(b) —
(a)
shall be determined by the Treasurer after consultation with the Ministers
responsible for the administration of this Act and the Department
respectively; and
(b)
shall be credited to the Consolidated Account.
(5) If in the opinion
of the Treasurer there is at any time any surplus income available from the
Rental Accommodation Account he may direct that all or part of that surplus
income be expended for the purpose of public housing in such manner as he may
specify.
[Clause 3 amended by No. 50 of 1988
s. 17(a); No. 6 of 1993 s. 11; No. 31 of 1993
s. 63(b); No. 59 of 1995 s. 54(1)(d) and (e) and 56;
No. 59 of 2004 s. 121; No. 28 of 2006 s. 137; No. 32
of 2006 s. 98; No. 77 of 2006 s. 4 and 17.]
4 . Duties of bond administrator
The bond administrator
shall —
(a)
cause to be kept proper accounts and records of transactions of the Rental
Accommodation Account established under clause 3; and
(b) in
relation to the amount of a security bond paid to him under
clause 2(1)(a) —
(i)
show in such records the name and address of the owner
and the tenant under the residential tenancy agreement in respect of which the
bond was paid; and
(ii)
pay out the amount of the bond in accordance with
clause 5.
[Clause 4 amended by No. 77 of 2006
s. 17.]
[Heading amended by No. 19 of 2010
s. 29(3).]
5 . Disposal of security bond by bond
administrator
(1) The bond
administrator shall on receipt of —
(a) an
application in a form approved by the Minister —
(i)
signed by both parties to the residential tenancy
agreement to which the bond relates; and
(ii)
lodged, including lodged by facsimile or electronic
means, with the bond administrator or his authorised agent;
or
(b) a
copy of an order under clause 8,
pay the amount of the
bond, or where subclause (2) applies part of that amount, in accordance
with the application or the order.
(2) An application
under subclause (1)(a) may relate to part of the amount of a security
bond.
(3) If a party is
deceased, the signature of his executor or administrator to an application is
sufficient for the purposes of subclause (1)(a), and if a party is
represented by a manager or administrator under any written law, the signature
of the manager or administrator is sufficient for such purposes.
(4) If 6 months
have elapsed since termination of a residential tenancy agreement and a bond
has not been paid in accordance with an application under this clause or an
application has not been made under clause 8, the bond shall be disposed
of in such manner as is, and subject to compliance with such provisions as
are, prescribed by regulations made under section 88.
(5) Regulations made
under section 88 may provide for a scheme designed to establish whether
any bond is one which should be dealt with under subclause (4).
[Clause 5 amended by No. 69 of 2006
s. 32(2) and (3).]
Part C — Financial institution
[Heading amended by No. 19 of 2010
s. 29(4).]
6 . Terms on which bond held by financial
institution
(1) An authorised
financial institution to which the amount of a security bond is paid under
clause 2(1)(b) shall hold that amount on the following
terms —
[(a) deleted]
(b)
interest at a rate not less than the prescribed rate shall accrue on the
amount for the period during which it is held;
(c) the
amount of interest at the prescribed rate shall be paid, at such times as are
prescribed, to the Rental Accommodation Account and if interest is paid at a
rate exceeding the prescribed rate, the amount representing interest above the
prescribed rate shall be paid, at such times as are prescribed, to the tenant;
(d) the
authorised financial institution may deduct from a payment to the credit of
the Rental Accommodation Account or from a payment to a tenant under
paragraph (c) an amount not exceeding such fee as is prescribed in
respect of a payment of that kind;
(e) the
amount of the bond shall be paid out in accordance with clause 7.
(2) In regulations
made under section 88 the prescribed rate referred to in
subclause (1)(b) and (c) may be prescribed by reference to a market rate
indicator specified in the regulations.
[Clause 6 amended by No. 59 of 1995
s. 54(1)(f); No. 77 of 2006 s. 17.]
(1) Where a security
bond is held in an account referred to in clause 2(3)(a), the real estate
agent in whose name the account is held shall on receipt of —
(a) an
application in a form approved by the Minister signed by both parties to the
residential tenancy agreement to which the bond relates; or
(b) a
copy of an order under clause 8,
pay from the account
the amount of the bond, or where subclause (4) applies part of that
amount, in accordance with the application or the order.
(2) A real estate
agent shall pay an amount under subclause (1) —
(a)
within the period, if any, specified in the relevant application or order; or
(b) if
no such period is specified, as soon as practicable but, in any case, not
later than 7 days after receipt of the application or copy of the order.
Penalty: $1 000.
(3) Where a security
bond is held in an account referred to in clause 2(3)(b), the authorised
financial institution which holds the account shall on receipt
of —
(a) an
application in a form approved by the Minister signed by both parties to the
residential tenancy agreement to which the bond relates; or
(b) a
copy of an order under clause 8,
pay the amount of the
bond, or where subclause (4) applies part of that amount, in accordance
with the application or the order.
(4) An application
under subclause (1)(a) or (3)(a) may relate to part of the amount of a
security bond.
(5) The provisions of
clause 5(3), (4) and (5) apply for the purposes of this clause, and with
the further provision that regulations made under section 88 may
authorise the payment of an unclaimed bond to the credit of the Rental
Accommodation Account referred to in clause 3.
[Clause 7 inserted by No. 59 of 1995
s. 54(1)(g); amended by No. 77 of 2006 s. 17; No. 69 of 2006
s. 32(4) and (5).]
[Heading amended by No. 19 of 2010
s. 29(5).]
8 . Referee may determine disposal of bond
(1) Subject to this
clause, a competent court may, upon application by an owner or a tenant, order
that the amount of any security bond be paid to the tenant in full, or, where
the court is satisfied that the tenant is liable to pay an amount to the owner
by reason of a breach of a term of a residential tenancy agreement or for
fumigation of the premises as mentioned in section 29(1)(b)(ii), that the
amount of the security bond be applied in payment of, or towards, that amount
and the balance, if any, be paid to the tenant.
(2) Notwithstanding
anything in this clause a court shall not order that any amount held under
section 29(1)(b)(ii) be paid to the tenant until the expiry of the period
of 14 days after the tenant has delivered up vacant possession of the
premises.
(3) Where a person
makes an application under subclause (1), section 18(2) shall not
apply but the court shall give to the other party notice in writing of the
application inviting him to indicate by notice in writing in the prescribed
form, filed in the office in which the application was filed within
7 days after service of the court’s notice, whether he intends to
dispute the application.
(4) Notwithstanding
any other provision of this Act, where —
(a) a
person makes an application under subclause (1) and notice has been given
to the other party in accordance with subclause (3); and
(b) that
other party does not within 7 days after service of that notice, file in
the office in which the application was filed a notice in writing in the
prescribed form indicating that he intends to dispute the application,
a competent court may,
without conducting a formal hearing, order payment in accordance with the
application.
(5) If the other party
indicates in the manner referred to in subclause (4) that he intends to
dispute the application, section 18(2) and the other provisions of this
Act relating to proceedings shall thereupon apply in relation to the
application.
(6) A tenant may not
make an application under subclause (1) before the termination of the
residential tenancy agreement.
(7) Where more than
one person is the tenant under a residential tenancy agreement, an application
may be made under subclause (1) by any one or more of the tenants, and
the court may, subject to subclause (2) —
(a) if
it is satisfied that it would be just to do so, order that the full amount of
the bond be paid to the applicant or applicants; or
(b)
order that a tenant be paid any share of the bond to which he is entitled,
in either case, less
any deduction referred to in subclause (1).
(8) An application
under this clause is a prescribed dispute within the meaning of
section 12 irrespective of the amount claimed.
(9) In this clause a
reference to the amount of a security bond includes, where clause 5(2) or
7(4) applies, a reference to the balance of a bond.
[Clause 8 amended by No. 50 of 1988
s. 17(b) and (c) and 18; No. 59 of 1995 s. 54(1)(h);
No. 59 of 2004 s. 120 and 121.]
[Schedule 2 omitted under the Reprints Act 1984 s. 7(4)(f).]