Page 2063 - Week 07 - Tuesday, 28 May 1991
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Section 62AG basically says that, where the provisions of subsections 62AF(1) and (3) have not been complied with - that is, where you have not lodged a condition report; I will not go through the complexity - the landlord can give evidence only as to the state of repair of the premises on the day on which the lessee obtained possession of the premises. I think that is a roundabout way of trying to say the same thing. It is a roundabout way of saying that if you do not lodge a condition report you cannot make a claim about the tenant damaging the property, because it says that you can give evidence only as to the state of the property at the date on which the lessee obtained it, so there is no evidence of the prior state of the property.
I would say that that provision could be clarified. It may be possible to clarify it by amendment or it may simply be possible for the Attorney to give a clear statement in his final remarks that, yes, that is the intention; the ultimate sanction if you do not tender your condition report is that you basically cannot bring an action against the tenant on the basis that they have damaged the property because there is no possibility of getting in any evidence about the prior condition of the property.
As I say, the equivalent provision that we were proposing, which was modelled on the New South Wales provision, said that rather simply. It said that if you have not lodged the condition report the board will not accept any application from the landlord in relation to damage to the premises. Subsection 62AG(3) says that where you have not lodged a condition report you can give evidence only as to the state of the premises when you obtain the premises from the landlord, and I think that is meant to mean the same thing.
I said that it is ironic because we have been looking at the explanatory memorandum, and this is a classic case of where the explanatory memorandum says exactly what the clause says. So, if I am trying to understand what the clause says, I find no assistance from the explanatory memorandum. I am pretty sure what the intention is; it is to put an evidentiary bar to encourage people to lodge these condition reports, but I would appreciate the Attorney indicating that that is indeed the case.
So, our basic problem is, firstly: Why have we decided not to make the lodging of the condition report a criminal offence? We would have in mind an amendment to provide that you can be prosecuted for failure to lodge those reports with the director, perhaps at a lower penalty level than the penalty level under section 62AE; we would suggest perhaps $500. We think we understand what the evidentiary provision means, but it perhaps is less clearly expressed than it could be.
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