New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 115A

115A Appointment of receivers

(1) In this section, "default", in respect of a mortgage or charge, means default in:

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

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

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

(2) Notwithstanding anything contained in any other section of this Act or in any other instrument:

(a) a mortgagee under a mortgage, whether executed before or after the commencement of this section, or a chargee is not entitled to appoint, whether under the power conferred by this Act or otherwise, a receiver in respect of the mortgaged or charged property unless default has been made in respect of the mortgage or the judgment to which the charge relates,

(b) subject to paragraph (a), a mortgagee under a mortgage executed before the commencement of this section is entitled to exercise the power to appoint a receiver conferred on the mortgagee by this Act or otherwise as if section 111 (2) (b) and (c), (3) and (4) of this Act, or, as the case may be, section 57 (2) (b) and (c), (3) and (4) of the Real Property Act 1900 , had not been enacted, and

(c) a person purporting to have been appointed as a receiver in respect of mortgaged or charged property, whether or not by the instrument creating the mortgage or the covenant under which the charge arose, shall not be entitled to exercise, as a receiver, any powers in respect of the mortgaged or charged property unless:

(i) default has been made in respect of the mortgage or charge, and

(ii) that appointment was made by an instrument in writing which has been registered.

(3) A receiver, however appointed, shall not exercise a power to sell any land the subject of the mortgage or charge unless the mortgagee or chargee is entitled to exercise a power to sell the land.

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

(5) This section extends to a registered security interest within the meaning of the Water Management Act 2000 as if:

(a) a reference in this section to a mortgage were a reference to a registered security interest, and

(b) a reference to mortgaged property were a reference to the access licence over which a registered security interest is held.

(6) Subsection (5) does not give a receiver any power with respect to a registered security interest that could not be exercised by the holder of the registered security interest.