New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 109

109 Powers of mortgagees and certain chargees

(1) A mortgagee and a chargee shall by virtue of this Act have the following powers to the like extent as if they had been in terms conferred by the instrument creating the mortgage or the covenant under which the charge arose but not further, namely:

(a) A power to sell or to concur with any other person in selling the mortgaged or charged property, or any part thereof, either subject to prior charges or not, and either together or in lots, in subdivision or otherwise, by public auction or by private contract, subject to such conditions respecting title or evidence of title or other matter as the mortgagee or chargee thinks fit, with power to vary any contract for sale, and to buy in at an auction or to rescind any contract for sale, and to resell without being answerable for any loss occasioned thereby.

(b) A power at any time after the date of the instrument to insure and keep insured against loss or damage by fire any building or any effects or property of an insurable nature whether affixed to the freehold or not being or forming part of the mortgaged or charged property, and the premiums paid for any such insurance shall be a charge on the mortgaged or charged property in addition to the money secured by the mortgage or charge, and with the same priority and with interest at the same rate as that money.

(c) A power to appoint a receiver of the income of the mortgaged or charged property or of any part thereof.

(d) A power, while the mortgagee or chargee is in possession, to cut and sell timber except trees planted or left standing for shelter or ornament, or to contract for any such cutting and sale, to be completed within any time not exceeding twelve months from the making of the contract.

(e) A power to sever and sell fixtures apart from the balance of the mortgaged or charged property.

(f) A power to sell any easement, profit à prendre, right, or privilege of any kind over or in relation to the mortgaged or charged property.

(2) The provisions of this Act (except section 111 (5) and the provisions of section 111 relating to notice or lapse of time where default is made in the payment, in accordance with the terms of the instrument creating the mortgage or the covenant under which the charge arose, of any principal, interest or other money) relating to the foregoing powers comprised either in this section or in any subsequent section regulating the exercise of those powers may be varied or extended by the instrument, and as so varied or extended shall, as far as may be, operate in the like manner and with all the like incidents, effects, and consequences as if such variations or extensions were contained in this Act.

(3) Subsection (1) applies only if and as far as a contrary intention is not expressed in the instrument, and shall have effect subject to the terms of the instrument and to the provisions therein contained.

(4) This section applies to mortgages executed before, and to mortgages executed after, the commencement of Schedule 3 to the Conveyancing (Amendment) Act 1976 .

(5) This section applies to mortgages and charges under the Real Property Act 1900 .