New South Wales Consolidated Acts

MORATORIUM ACT 1932 - SECT 10

10 Remedy of mortgagee etc

(1) Where any mortgagor or puisne mortgagee has at any time since the nineteenth day of December, one thousand nine hundred and thirty, been or shall at any time after the commencement of this Act be in occupation of the mortgaged property or in receipt of the rents, profits or income thereof, and default has or shall have been made in the payment of interest under the mortgage, the court may on the application of the mortgagee order such mortgagor or puisne mortgagee to pay to the mortgagee the whole or such part as it thinks fit of the amount of interest due and unpaid.
Where the terms of a mortgage provide for the capitalisation of interest, the date at which by such terms a rest may be taken shall, for the purposes of this section, be regarded as the date upon which the interest is payable, and default shall be deemed to be made or to have been made in the payment thereof if such interest be not paid at such date notwithstanding any capitalisation thereof.

(2) On any application under this section against a mortgagor or puisne mortgagee who has been in occupation of the mortgaged property, the court in determining whether it shall order the payment of any and if so what sum shall take into consideration the value to the mortgagor or puisne mortgagee of the occupation of the mortgaged property, the conduct of the mortgagor or puisne mortgagee in respect of any covenants, agreements, or conditions in the mortgage expressed or implied, and generally any other circumstances which the court deems relevant.

(3) On any application under this section against a mortgagor or puisne mortgagee who has been in receipt of the rents, profits, or income of the mortgaged property, the court shall have regard to the sums, if any, paid by such mortgagor or puisne mortgagee for rates, taxes, insurance premiums and other charges and outgoings on or in relation to the mortgaged property during or in respect of the period for which he was or has been in receipt of the rents, profits, or income of the mortgaged property to the intent that such mortgagor or puisne mortgagee shall not, on such application, be ordered to pay a sum which with the sums already paid by him in respect of the matters aforesaid will be in excess of the rents, profits and income received, or which, but for his wilful neglect and default might have been received by him during the period for which such interest was payable.

(4) In the application of this section to contracts for the sale of land the court may order the payment of moneys on account of interest whether such interest be made payable expressly by the contract or by the operation of any rule of law or equity.

(4A) On any application under this section the court may order the mortgagor, puisne mortgagee or purchaser, as the case may be, to file accounts, verified by affidavit, showing, for or in respect of the period specified in the order, the amounts of rents, profits or income received by him from the mortgaged or purchased property, and the sums paid by him for rates, taxes, insurance premiums and other charges and outgoings on or in relation to such property, and may order the person making such affidavit to attend before the court for cross-examination thereon.

(5) Section twenty-six of the Moratorium Act 1930-1931 , as amended by the Moratorium and Interest Reduction (Amendment) Act 1931 , shall be construed as if the words “damages for breach of the agreement or for any damages or expenses whatsoever incurred by the vendor in or about the agreement” did not include payments which the court may direct in pursuance of this section.

(6) Such remedy shall be in addition to and not in substitution for any other remedy of the mortgagee for the recovery of interest.