Conveyancing Act 1919 No 6
Historical version for 8 January 2010 to 28 February 2010 (accessed 19 December 2014 at 02:25) Current version
Part 7Division 1

Division 1 General provisions

90   Application of Division 1 to land subject to Real Property Act 1900

The provisions of this Division apply to and in respect of mortgages of and charges on land under the Real Property Act 1900 only to the extent specified in those provisions.

91   Indorsements on mortgages

(1)  In the case of every mortgage (whether made before or after the commencement of this Act):
(a)  the mortgage debt may be discharged, and
(b)  the rate of interest may be increased or reduced, and
(c)  the amount secured by the mortgage may be increased or reduced, and
(d)  the term or currency of the mortgage may be shortened, extended, or renewed, and
(d1)  the provisions of a mortgage may be otherwise varied, omitted or added to, and
(e)  the mortgage may be transferred:
by a memorandum indorsed on or annexed to the mortgage, and signed by the persons to be bound thereby and attested by one witness.
(2)  Such memorandum may be in such one of the forms of the Fifth Schedule as applicable, or to the effect thereof, and shall in cases (b), (c), (d), (d1) and (e) operate as a deed.
(3) 
(a)  Every such memorandum of discharge, upon registration, but as from the date of such memorandum, shall, unless a contrary intention appears in the memorandum, vacate the mortgage debt, and shall operate as a deed of conveyance of the estate and interest of the mortgagee of and in the mortgaged property to the person for the time being entitled to the equity of redemption to the uses and for the estates and interests, and subject to the powers and trusts to, for, and subject to which, the equity of redemption at the date of such memorandum stood limited or subject discharged from all moneys secured by the mortgage: Provided that in case there is any subsequent subsisting mortgage on the property at the date of such memorandum, the legal estate in the property under the discharged mortgage shall vest in the person in whom the subsequent mortgage is vested, or in the event of there being more than one such mortgage then in the person who has the prior right to call for a conveyance of such legal estate.
(b)  Where the mortgage consists of a mortgage and a further charge or of more than one instrument it shall be sufficient for the purposes of this section if the memorandum refers to all the instruments whereby the mortgage money is secured or to the aggregate amount of the mortgage money thereby secured, and is indorsed on or annexed to one of the mortgage instruments.
(4)  Every such memorandum of transfer shall operate as a deed of assignment of the mortgage debt, and as a deed of conveyance of the estate and interest of the mortgagee of and in the mortgaged property, and shall vest the debt and estate and interest in the assignee, together with all the rights, powers, and remedies of the mortgagee expressed or implied in the mortgage.
(5)  The mortgagor may require the mortgagee to execute a proper instrument of reconveyance of the mortgaged property instead of executing a memorandum of discharge.
(5A)  A memorandum of variation of mortgage may not operate so as to vary the land to which the mortgage relates.
(6)  Subject to the memorandum referred to in subsection (1) being in or to the effect of an approved form within the meaning of the Real Property Act 1900, paragraphs (b), (c), (d) and (d1) of that subsection apply to mortgages under that Act and, upon lodgment of such a memorandum for registration, the Registrar-General shall make such recordings in the Register kept under that Act as may be necessary to give effect to the memorandum.

92   Mortgagee accepting interest on overdue mortgage not to call up without notice

(1)  Where the mortgagor has made default in payment of the principal sum at the expiry of the term of the mortgage, or of any period for which it has been renewed or extended, and the mortgagee has accepted interest on the said sum for any period (not being less than three months) after default has been so made, then, so long as the mortgagor performs and observes all covenants expressed or implied in the mortgage, other than the covenant for payment of the principal sum, the mortgagee shall not be entitled to take proceedings to compel payment of the said sum, or for foreclosure, or to enter into possession, or to exercise any power of sale, without giving to the mortgagor three months’ notice of his or her intention so to do.
(2)  No purchaser from the mortgagee exercising his or her power of sale shall be concerned to inquire whether the mortgagee has accepted interest as aforesaid after such default.
(3)  This section applies to mortgages under the Real Property Act 1900.
(4)  This section shall have effect notwithstanding any stipulation to the contrary.

93   Right to redeem before time fixed for redemption

(1)  A mortgagor is entitled to redeem the mortgaged property although the time appointed for redemption has not arrived; but in such case the mortgagor shall pay to the mortgagee, in addition to any other moneys then owing under the mortgage, interest on the principal sum secured thereby for the unexpired portion of the term of the mortgage: Provided that redemption under this subsection shall not prejudice the right of the mortgagee to any collateral benefit, or to enforce any burden or restriction to the extent to which the mortgagee would be entitled under the mortgage or otherwise if the mortgage were paid off at the due date.
(2)  For the purposes of this section moneys owing under a mortgage includes all costs, charges, and expenses reasonably and properly incurred by the mortgagee:
(a)  for the protection and preservation of the mortgaged land or the title thereto, or otherwise in accordance with the provisions of the mortgage, and
(b)  with a view to the realisation of the mortgagee’s security,
and in either case includes interest on the sums so expended after the rate expressed in the mortgage.
(3)  This section applies to mortgages made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.
(4)  This section applies to mortgages under the Real Property Act 1900.

94   Obligation on mortgagee to transfer instead of discharging

(1)  Where a mortgagor is entitled to redeem the mortgagor shall by virtue of this Act have power to require the mortgagee instead of discharging, and on the terms on which the mortgagee would be bound to discharge, to transfer the mortgage to any third person as the mortgagor directs; and the mortgagee shall by virtue of this Act be bound to transfer accordingly.
(2)  This section does not apply in the case of a mortgagee being or having been in possession.
(3)  This section applies to mortgages made either before or after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.
(4)  This section applies to mortgages under the Real Property Act 1900.

95   Person entitled to require transfer

The right of the mortgagor under the last preceding section shall belong to and be capable of being enforced by each incumbrancee or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancee shall prevail over a requisition of the mortgagor, and as between incumbrancees a requisition of a prior incumbrancee shall prevail over a requisition of a subsequent incumbrancee.

96   Power for mortgagor to inspect title deeds

(1)  A mortgagor, as long as the mortgagor’s right to redeem subsists, shall by virtue of this Act be entitled from time to time at reasonable times on the mortgagor’s request, and at the mortgagor’s own cost and on payment of the mortgagee’s costs and expenses in this behalf by the mortgagee, the mortgagee’s solicitor or licensed conveyancer, to inspect and to be supplied with copies or abstracts of, or extracts from, the documents of title or other documents relating to the mortgaged property in the custody or power of the mortgagee.
(2)  This section applies to mortgages under the Real Property Act 1900, and in such case the mortgagor shall be entitled to have the relevant certificate of title, or other document of title, lodged at the office of the Registrar-General, to allow of the registration of any authorised dealing by the mortgagor with the land, upon payment of the mortgagee’s proper costs and expenses.
(3)  This section applies only to mortgages made after the commencement of this Act, and shall have effect notwithstanding any stipulation to the contrary.

96A   Notice of trusts affecting mortgage debts

(1)  A person dealing in good faith with a mortgagee, or with the mortgagor if the mortgage has been discharged or released as to the whole or any part of the mortgaged property, shall not be concerned with any trust at any time affecting the mortgage money or the income thereof, whether or not the person has notice of the trust, and may assume, unless the contrary is expressly stated in the instruments relating to the mortgage:
(a)  that the mortgagees (if more than one) are or were entitled to the mortgage money on a joint account, and
(b)  that the mortgagee has or had power to give valid receipts for the purchase money or mortgage money and the income thereof (including any arrears of interest) and to release or postpone the priority of the mortgage debt or any part thereof, or to deal with the same or the mortgaged property or any part thereof,
without investigating the equitable title to the mortgage debt or the appointment or discharge of trustees in reference thereto.
(1A)  For the purposes of this section the expression mortgagee includes a mortgagee who, pursuant to any power conferred by a trust instrument or by law has purchased or otherwise acquired the equity of the redemption in the mortgaged property.
(2)  This section applies to mortgages made before or after the commencement of the Conveyancing (Amendment) Act 1930, but only as respects dealings effected after such commencement.
(3)  This section does not affect the liability of any person in whom the mortgage debt is vested for the purposes of any trust to give effect to that trust.
(4)  This section applies and shall be deemed to have applied from the commencement of the Conveyancing (Amendment) Act 1930 to mortgages under the Real Property Act 1900.

97   Consolidation of mortgages abolished

(1)  A mortgagor seeking to redeem any one mortgage made after the commencement of this Act shall by virtue of this Act be entitled to do so without paying any money due under any separate mortgage made whether before or after the commencement of this Act by the mortgagor or by any person through whom the mortgagor claims on property other than that comprised in the mortgage which the mortgagor seeks to redeem.
(2)  This section applies notwithstanding any stipulation to the contrary.
(3)  This section applies to mortgages under the Real Property Act 1900.

98   Facilitation of redemption in case of absent or unknown mortgagees

(1)  Where land is subject to a mortgage and the person empowered to reconvey the land or, where the land is under the provisions of the Real Property Act 1900, to execute in respect thereof a discharge referred to in section 65 of that Act, is out of the jurisdiction, cannot be found or is unknown, or if it is uncertain who that person is, the court may, upon the application of the person for the time being entitled to redeem the mortgaged land, determine in such manner as the court thinks fit whether or not all amounts due under the mortgage have been paid and, if not, the amount thereof outstanding.
(1A)  Where the court has made a determination under subsection (1) in relation to a mortgage, the mortgagee is, to the extent provided by this section, liable to pay the costs of the applicant incurred in obtaining the determination, any rule of law or stipulation to the contrary notwithstanding.
(1B)  The amount of costs that a mortgagee is liable under subsection (1A) to pay in respect of a determination under subsection (1) is the amount by which:
(a)  the amount certified by the court when making the determination as reasonable costs of the applicant incurred in obtaining the determination,
exceeds:
(b)  the reasonable costs that would have been incurred by the mortgagee in discharging the mortgage, whether or not they would have been payable by the mortgagee.
(1C)  The amount of costs that a mortgagee is liable, under subsection (1A), to pay to an applicant shall, except to the extent that it is extinguished or reduced by the operation of this section, be deemed to be a specialty debt recoverable by the applicant and incurred at the time of the making of the determination to which the costs relate.
(1D)  Where the court determines under subsection (1) that the amount due under a mortgage has not been repaid and the amount thereof determined by the court to be outstanding exceeds the amount of costs calculated under subsection (1B) in respect of the determination, the applicant for the determination may pay into court the difference between the amount so determined and the amount so calculated and, upon the amount of that difference being so paid:
(a)  the amount due under the mortgage at the time of the payment into court shall be deemed to have been reduced by the amount so calculated and by the amount paid into court, and
(b)  the debt owing under subsection (1C) by the mortgagee to the applicant shall be deemed to have been extinguished.
(1E)  Where the court determines under subsection (1) that the amount due under a mortgage has not been repaid and the amount thereof determined by the court to be outstanding is equal to or less than the amount of costs calculated under subsection (1B) in respect of the determination:
(a)  the amount due under the mortgage at the time of the determination shall be deemed to have been reduced by the amount so determined,
(b)  the debt owing under subsection (1C) by the mortgagee to the applicant for the determination shall be deemed to have been reduced by the amount so determined, and
(c)  for the purposes of subsection (1F), the court shall be deemed to have determined that the amount due under the mortgage has been repaid.
(1F)  Where:
(a)  the court determines under this section that the amount due under a mortgage has been repaid, whether by the operation of paragraph (c) of subsection (1E) or otherwise, or
(b)  payment into court is made under subsection (1D),
an officer of the court prescribed by rules of court may give a certificate to the effect that this section has been complied with in relation to the mortgage in respect of which the determination was made or the money paid into court.
(2)  In favour of a purchaser of land comprised in a mortgage referred to in a certificate given under subsection (1F), the certificate operates as a discharge of the land from the amount due under the mortgage, and as a deed of conveyance, in the same manner as a memorandum of discharge operates under subsection (3) of section 91.
(3)  The Court shall order an amount paid into court under subsection (1D) to be paid to the person entitled, upon the application of such person, and on proof that the deed or instrument of mortgage, and all the title deeds which were delivered by the mortgagor to the mortgagee on executing the same, or in connection therewith, have been delivered up to the person by whom the amount was so paid into court, or the person’s executors, administrators, or assigns, or have been otherwise satisfactorily accounted for.
(3A)  A determination by the court under this section with respect to a mortgage is not, as between persons referred to in subsection (1), conclusive as to:
(a)  whether or not an amount is due under the mortgage at the time of the determination, or
(b)  whether the amount determined by the court to be due under the mortgage is the amount so due at the time of the determination, and except to the extent of the operation of paragraph (a) of subsections (1D) and (1E), and of subsection (2), that determination does not prejudice any right conferred by the mortgage for the recovery of an amount due thereunder.
(4)  This section, subsection (2) excepted, applies to and in respect of mortgages under the Real Property Act 1900.
(4A)  Upon:
(a)  application to the Registrar-General in the form approved under the Real Property Act 1900,
(b)  production to the Registrar-General of a certificate under subsection (1F) that relates to a mortgage registered under that Act, and
(c)  payment of the fee prescribed under that Act,
the Registrar-General:
(d)  shall, in the Register kept under that Act, make such recordings as the Registrar-General considers appropriate to give effect to the discharge of the mortgage, and
(e)  may, if the relevant grant, certificate of title or duplicate registered dealing upon which the mortgage is recorded, or the duplicate registered mortgage, is produced to the Registrar-General for the purpose, record thereon the discharge of the mortgage.
(5)  (Repealed)

99   Effect of advance on joint account etc

(1)  Where, in a mortgage, or an obligation for payment of money, or a transfer of a mortgage or of such an obligation, the sum, or any part of the sum, advanced or owing is expressed to be advanced by or owing to more persons than one out of money or as money belonging to them on a joint account, or where a mortgage, or such an obligation, or such a transfer, is made to more persons than one, and not in shares, the mortgage-money or other money or money’s worth for the time being due to those persons on the mortgage or obligation shall, as between them and the mortgagor or obligor, be deemed to be and remain money or money’s worth belonging to them on a joint account; and the receipt in writing of the survivors or last survivor of them, or of the executors or administrators of the last survivor, or the assigns of the last survivors or survivor, shall be a complete discharge for all money or money’s worth for the time being due, notwithstanding any notice to the payer of the severance of the joint account.
(2)  Such survivors or survivor, or the executors or administrators of such last survivor, or the assigns of the last survivors or survivor, may exercise all powers conferred by the mortgage or obligation as fully and effectually as the mortgagees, if living, could have done; subject as to lands under the provisions of the Real Property Act 1900 to compliance with the provisions of that Act.
(3)  This section applies only to a mortgage, or obligation, or transfer made after the commencement of this Act, and then only in so far as a contrary intention is not expressed in the mortgage, obligation, or transfer, and shall have effect subject to the terms and provisions thereof.

99A   Foreclosure order for certain charged land

(1)  Where:
(a)  default has been made for 6 months in the payment of the principal and interest secured by a charge,
(b)  the land charged has been offered for sale at a public auction by a licensed auctioneer after notice has been given in accordance with section 111,
(c)  the amount of the highest bid at that sale was not sufficient to satisfy the money secured by the charge, together with the expenses of the sale, and
(d)  notice in writing of the intention to make the application has been served on the person whose land is subject to the charge in the manner prescribed by section 170,
the chargee or the solicitor, attorney or agent of the chargee may make application to the Court for an order for foreclosure.
(2)  The application shall be made in accordance with rules of Court.
(3)  The notice of intention to make the application may be given personally or by post to the NSW Trustee and Guardian where, at the time the notice is so given:
(a)  the chargee knows the person whose land is subject to the charge is dead, and
(b)  there is no personal representative of the deceased in New South Wales,
and any such notice shall be accompanied by a statement containing such particulars as may be prescribed.
(4)  A notice given in accordance with subsection (3) shall be deemed to have been served on the person whose land is subject to the charge unless probate of the will or letters of administration of the estate of the person is or are granted to some person other than the NSW Trustee and Guardian within one month after the notice has been so given.
(5)  Where an application has been made in accordance with this section and such further notice of its intention to make the order as the Court considers appropriate has been given, the Court may make an order for foreclosure in favour of the applicant, unless in the interval a sufficient amount has been realised by the sale of the land to satisfy the principal and interest due and all expenses occasioned by the sale and proceedings for foreclosure.
(6)  An order for foreclosure made under this section shall have the effect of vesting in the chargee all the estate and interest in that land of the person whose land was subject to the charge.
(7)  Except as provided by section 101, this section applies only to charges imposed under section 88F on land which is not under the provisions of the Real Property Act 1900.

100   Foreclosure extinguishes right of action for debt, and equity of redemption

(1)  On an order absolute for foreclosure the mortgagee or chargee shall be deemed to have taken the property mentioned in such order, in full satisfaction of the mortgage debt or amount secured by the charge, and the mortgagee or chargee’s right or equity to bring any action or to take other proceedings for the recovery of the mortgage money or amount secured by the charge from the debtor, surety, or other person, shall be extinguished, and all collateral securities for the debt or amount secured by the charge which have not previously been enforced shall be released, and the right or equity of the mortgagor to redeem the said property shall also be extinguished.
(2)  In the case of mortgages of or charges on land under the Real Property Act 1900, order absolute includes an order for foreclosure under the hand of the Registrar-General when recorded in the Register kept under that Act.
(3)  This section applies only to:
(a)  foreclosures obtained after the commencement of this Act, and
(b)  charges imposed under section 88F.
(4)  This section shall have effect notwithstanding any stipulation to the contrary.

101   Foreclosure, sale or redemption of land partly under the Real Property Act 1900

(1)  Where mortgage money or an amount secured by a charge is secured partly by a mortgage or charge registered under the Real Property Act 1900 and partly by other securities:
(a)  an order for foreclosure or sale, in respect of land the subject of the mortgage or charge, or
(b)  an order for redemption, in respect of land the subject of the mortgage,
may, notwithstanding anything contained in that Act, be made by the Court as if the land was not under the provisions of that Act.
(2)  In cases where an order absolute for foreclosure is made by the Court under this section, the Registrar-General shall, on lodgment of an application in the form approved under that Act, register as proprietor the person in whose favour the order is made.
(3)  This section applies only to charges imposed under section 88F.

102   On judgment for mortgage debt the interest of the mortgagor not seizable

(1)  On a judgment of any court for a debt secured by mortgage of any property (including land under the provisions of the Real Property Act 1900), the interest of the mortgagor in that property shall not be taken in execution under the judgment.
(2)  Nothing in this section shall affect the construction of the section for which this section is substituted.

103   Sale of mortgaged or charged property in proceedings for foreclosure etc

(1)  Any person entitled to redeem mortgaged property may have an order for sale instead of for redemption in any proceedings instituted by the person either for redemption alone or for sale alone, or for sale or redemption, in the alternative.
(2)  In any proceedings, whether for foreclosure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money or an amount secured by a charge, the Court, on the request of the mortgagee or person whose land is subject to the charge, or of any person interested either in the mortgage money or amount so secured or in the right of redemption, and notwithstanding the dissent of any other person, and notwithstanding that the mortgagee or person whose land is subject to the charge or any person so interested does not appear in the proceedings, and without allowing any time for redemption or for payment of any mortgage money or amount so secured, may direct a sale of the mortgaged or charged property on such terms as to the Court may seem just, including, if the Court thinks fit, the deposit in court of a reasonable sum fixed by the Court to meet the expenses of sale and to secure performance of the terms.
(3)  In any proceedings instituted by a person interested in the right of redemption or by a person whose land is subject to a charge and seeking a sale, the Court may, on the application of any defendant, direct the plaintiff to give such security for costs as the Court thinks fit, and may give the conduct of the sale to any party or other person, and may give such directions as to the Court may seem just respecting the costs of the defendants or any of them.
(4)  In any case within this section the Court may direct a sale without previously determining the priorities of incumbrancees or mortgagees, and may direct a sale out of Court.
(5)  (Repealed)
(6)  This section applies to proceedings instituted either before or after the commencement of this Act.
(7)  Except as provided by section 101, this section applies only to charges imposed under section 88F on land which is not under the provisions of the Real Property Act 1900.

104   Mortgaged property may be sold or leased together at one price or rent

(1)  In the exercise by the mortgagee of a power of sale or lease contained or implied in any mortgage:
(a)  the mortgaged premises or any part thereof, may be sold or leased, together with any other land or property of whatsoever nature or tenure which is the subject of the mortgage or of any collateral security from the mortgagor to the mortgagee by one sale or lease at one price or rent; and in such case:
(b)  the mortgagee shall fairly and equitably apportion all costs, expenses, purchase moneys, and rents between the properties sold or leased.
(2)  A failure by the mortgagee to make such apportionment shall not affect the purchaser or lessee, nor the title to the property in the purchaser or lessee’s hands.
(3)  This section extends to any case in which the whole or any part of any land the subject of the sale or lease is under the provisions of the Real Property Act 1900.
(4)  This section applies to sales and leases made after the commencement of this Act under mortgages, whether made before or after the commencement of this Act.
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