You are here

2 DSH Legislation

Document

The information appearing below is directly quoted from the Defence Service Homes Act 1918.  Sections are clearly stated and subsections are bracketed.

Section 4 (1)  In this Act, unless the contrary intention appears -

additional advance means a subsidised advance to a purchaser or borrower for a purpose referred to in subsection 18(3);

"agreement" means the agreement made between the Commonwealth and the Bank on 9 November 1988, a copy of which is set out in Schedule 1, as amended by the agreement a copy of which is set out at Schedule 1A and as in force from time to time;

"assigned advance" means a subsidised advance to an assignee, in accordance with a certificate of assignment issued under section 23A;

"assignee" means an assignee referred to in section 23A;

"assignor" means an assignor referred to in section 23A;

"borrower" means a person who is liable to pay the outstanding amount:

(a)of a subsidised advance in respect of which subsidy is payable; or

(b)secured by a specified portfolio asset (other than a contract of sale) which vests in the Bank under section 6B and in respect of which subsidy is payable;

and includes an assignee in relation to a subsidised advance

"certificate of assignment" means a certificate of assignment issued under section 23A

"certificate of entitlement" means a certificate of entitlement issued under this Act;

"company title" in relation to land, means a right of occupancy of the land, or of a dwelling-house or part of a dwelling-house erected on the land, arising from the holding of shares in a corporation that has an interest in the land or dwelling-house;

"contract of sale" means a contract for the sale of a dwelling-house and land under Part IV of this Act as in force before the commencing day;

"Corporation" means the Defence Service Homes Corporation;

"Corporation advance" has the same meaning as in the agreement (see

later this chapter);

"Dwelling-house" includes -

(a)a house or building used or to be used by a person, who is included in paragraph (b) or (d) of the definition of "Australian Soldier", as a hospital, sanatorium or nursing home; and

(b)the appurtenances, outbuildings, fences, and permanent provision for lighting, water supply, drainage and sewerage provided in connection with a dwelling-house,

but does not include any land;

"further advance" means a subsidised advance (other than a widow or widower advance or an advance for essential repairs) to a person who:

(a) has been a purchaser or borrower as defined in this section (as in force before, on or after the commencing day), otherwise than;

(i) merely because the person is or was the personal representative of a deceased purchaser or borrower as so defined; or

(ii) merely because the person is or was a joint purchaser or borrower as so defined with the person's spouse and became such a purchaser or borrower on the basis that the person's spouse was an eligible person;

(b)is not such a purchaser or borrower immediately before the advance is made;

"granny flat" means any form of residence:

(a)that is the principal home of an eligible person; and

(b)that is not owned, wholly or partly, by the eligible person; and

(c)that is, or is part of, a private residence; and

(d)in respect of which the eligible person has a right of accommodation for an indefinite period;

"Holding", in relation to an applicant or borrower, means -

(a)land of which he or she is the beneficial owner in fee simple; or

(b)land of which he or she is the lessee under a Crown lease in perpetuity from a State; or

(c)land of which he or she is the lessee under a lease granted for a term of not less than 99 years from a State or from a local governing body; or

(d)land in a Territory of which he or she is the lessee under a lease from Australia or from the Administration of the Territory, being -

(i) a lease in perpetuity;

(ii) a lease granted for a term of not less than 99 years; or

(iii) in the case of Norfolk Island - a lease granted for a term of not less than 28 years; or

(e)a suburban holding held by him or her under the Crown Lands Consolidation Act, 1913 of New South Wales or under that Act as amended at any time or under an Act enacted in substitution for that Act, being a suburban holding an application for which has been confirmed in accordance with the law of that State; or

(f)a unit defined in a units plan registered in accordance with a law of the Australian Capital Territory relating to unit titles, being a unit of which he or she is the lessee under a lease from Australia; or

(g)land which he or she holds by way of a company title; or

(h)land of which he or she is the lessee under a lease that the Bank considers is adequate security for a subsidised advance to be made to him or her;

NOTE: An interest in a holding may be a joint interest in accordance with

section 4AB.

"lease", in relation to land held by way of company title, includes an agreement similar to a lease;

"mortgage" includes a security over an interest in shares that are shares giving rise to a company title;

"retirement village" means:

(a)a retirement village registered under an approved law of a State or Territory: or

(b)in the case of a State or Territory that has no approved law - a retirement village within the meaning of the Veterans' Entitlements Act 1986; or

(c)a granny flat.

Section 4 (3)  Where, in the case of a person, being a female, who is -

(a)a person described in paragraph (g) of the definition of " Australian Soldier" in subsection 4(1); or

(b)a regular serviceman,

the whole or any part of the service by reason of which she is such a member or such a regular serviceman, as the case may be, was service as a member of a nursing service, she shall, for the purposes of paragraph 18(1)(f), be deemed to be a person included in paragraph (b) of the definition of "Australian Soldier" in subsection (1) of section 4.

Section 4 (4)  Where -

(a) an applicant is the lessee of land under a lease for a term of years from the Commonwealth, the Administration of a Territory or a State, being a lease under which he is entitled, on the fulfilment of the terms, conditions and covenants of the lease, to a grant in fee simple of the land; and

(b)the applicant satisfies the Secretary that the applicant has a reasonable prospect of carrying out the terms, conditions and covenants of the lease,

the land shall be deemed to be a holding for the purposes of this Act in relation to the applicant.

Section 4 (5)  Where -

(a) an applicant is purchasing land from a State on terms that entitle him, on compliance with specified conditions, to a grant in fee simple of the land; and

(b) the applicant satisfies the Secretary that the applicant has a reasonable prospect of complying with those conditions,

the land shall be deemed to be a holding for the purposes of this Act in relation to the applicant.

Section 4 (6)  For the purposes of this Act a person is taken, subject to subsection (7), to have a right of residence in a retirement village if the person has a right of permanent residence in the retirement village, subject to any contractual conditions governing the person's residence.

Section 4 (7)  For the purposes of this Act a person is not taken to have a right of residence in a retirement village if the person's right of residence is derived from the person's interest in a holding of the person.

Section 4 (8)  In this Act, a reference to a person's retirement village accommodation means that part of a retirement village in which the person has, or the person and the person's spouse or de facto partner have, obtained a right of residence.

Section 4 (9) A reference in this Act to an advance that a person may seek from the Bank, includes a reference to such an advance that a person may seek from the Bank on behalf of an assignee, or a proposed assignee, of the person;

Section 4 (10) A reference in this Act to an assignee of a person is a reference to another person in relation to whom the first-mentioned person is an assignor

Section 4 (11) For the purposes of the definitions of further advance and initial advance in subsection 4(1), if the subsidised advance in question is an assigned advance in respect of an assignor:

(a)a reference in those definitions to the person to whom the advance in question is made is a reference to the assignee; and

(b)the assignee is not taken to have previously been a purchaser or borrower merely because the assignee previously became a purchaser or borrower, either as an eligible person in his or her own right or as an assignee in relation to another assignor.

Section 4 (12) For the purposes of paragraph (b) of the definition of further advance in subsection 4(1), a person is not taken to have been a purchaser or borrower immediately before an assigned advance is made, merely because the person is a purchaser or borrower, as an assignee, in relation to an assignor other than the one in question;

Section 4 (13) For the purposes of the definitions of further advance and initial advance in subsection 4(1), a person who has been an assignor is taken to have been a borrower unless the person:

(a) was an assignor merely because the person is or was the personal representative of a deceased assignor; or

(b) was an assignor merely because the person is or was an assignor together with the person's spouse or de facto partner, and became such an assignor on the basis that the person's spouse or de facto partner was an eligible person.

"initial advance" means a subsidised advance for a purpose referred to in subsection 18 (2) to a person referred to in subsection 18 (1) who is not, and has not previously been, a purchaser or borrower as defined in this section  (as in force before, on or after the commencing day) otherwise than:

(a) merely because the person is or was the personal representative of a deceased purchaser or borrower as so defined; or

(b) merely because the person is or was a joint purchaser or borrower as so defined with the person's spouse or de facto partner and became such a purchaser or borrower on the basis that the person's spouse or de facto partner was an eligible person;

"Limit" has the same meaning as in the agreement (see later this chapter);

"Owner" in relation to land includes every person who has purchased land on credit or deferred payment, and has obtained possession of the land, and, in relation to a dwelling-house, includes any person who has purchased or contracted to purchase a dwelling-house together with the land on which it is erected;

"purchaser" means a person who is liable to pay the outstanding balance of the purchase money in respect of the purchase of land and a dwelling-house under a contract of sale in respect of which subsidy is payable;

"subsidised advance" has the same meaning as in the agreement (see later this chapter);

"subsidy" means a subsidy payable under Part IV by the Commonwealth to the Bank, being an amount calculated and payable in the manner provided in the agreement;

"the Bank" means Westpac Banking Corporation and, as the context requires and subject to the agreement, any body to which it assigns all or any of its rights or obligations under the agreement, the portfolio assets or subsidised advances or any security for those advances, as provided by the agreement ;......