New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 111

111 Regulation of exercise of power of sale

(1) In case of a mortgage or charge registered under the Real Property Act 1900 , the mortgagee or chargee shall only exercise the power of sale conferred by this Act in the events and subject to the conditions contained in sections 57, 58 and 58A of that Act, and the provisions of section 59 of that Act shall apply to any transfer executed for the purpose of such sale.

(2) Except in the case of a mortgage or charge referred to in subsection (1), a mortgagee or chargee shall not exercise a power to sell land the subject of the mortgage or charge, whether conferred by this Act or otherwise, unless:

(a) in the case of a mortgage, default has been made in:

(i) the observance of a covenant, agreement or condition expressed or implied in the mortgage,

(ii) the payment, in accordance with the terms of the mortgage, of the principal, interest or other money the payment of which is secured by the mortgage, or

(iii) the payment, in accordance with the terms of the mortgage, of any part of that principal, interest or other money,

(a1) in the case of a charge, default has been made in:

(i) the payment, in accordance with the terms of the judgment to which the charge relates, of the principal, interest or other money the payment of which is secured by the charge, or

(ii) the payment, in accordance with the terms of that judgment, of any part of that principal, interest or other money,

(b) where:

(i) the default relates to that payment, or

(ii) in the case of a mortgage, the default does not relate to that payment and notice or lapse of time pursuant to this section has not been dispensed with by agreement expressed in the mortgage,

a written notice that complies with subsection (3) has been served on the mortgagor or person whose land is subject to the charge in the manner authorised by section 170,

(b1) where a notice is required to be served under paragraph (b), a copy of that notice has been served (in the manner authorised by section 170) on each mortgagee or chargee (if any) under a mortgage or charge to which the land is subject registered in the General Register of Deeds (other than the mortgagee or chargee intending to exercise the power of sale), and

(c) where such a notice is so served, the requirements of the notice are not complied with within the time notified pursuant to subsection (3) (d).

(3) A notice referred to in subsection (2) complies with this subsection if:

(a) it specifies that it is a notice pursuant to section 111 (2) (b) of the Conveyancing Act 1919 ,

(b) it requires the mortgagor or person whose land is subject to the charge on whom it is served:

(i) in the case of a mortgage, to observe, except in relation to any time expressed in the covenant, agreement or condition for its observance, the covenant, agreement or condition in respect of the observance of which the mortgagor or person made default, or

(ii) as the case may be, to pay the principal, interest or other money in respect of the payment of which the mortgagor or person made default,

(c) if the costs and expenses of preparing and serving the notice are to be demanded, it requires payment of a reasonable amount for those costs and expenses and specifies the amount, and

(d) it notifies the mortgagor or person whose land is subject to the charge that, unless the requirements of the notice are complied with within one month after service of the notice (or, where some other period exceeding one month is limited by the mortgage or judgment for remedying the default referred to in the notice, within that other period after service of the notice) it is proposed to exercise a power of sale in respect of the land the subject of the mortgage or charge.

(4) Where a notice is served under subsection (2) (b) and the requirements of the notice are complied with within the time applicable to the notice under subsection (3) (d), the default to which the notice relates shall be deemed not to have occurred.

(5) Without prejudice to any other manner in which it may be deprived of force or effect, a covenant, agreement or condition whereby upon a default referred to in subsection (2) (a):

(a) the whole of the principal or other money of which the payment is secured by a mortgage becomes payable, or

(b) a part of that principal or other money (not being a part to which that default relates) becomes payable,

has no force or effect until the power of the mortgagee to sell the land the subject of the mortgage becomes exercisable by reason of that default.