New South Wales Consolidated Acts

MORATORIUM ACT 1932 - SECT 14

14 Consent by mortgagor to exercise of rights, powers, and remedies by mortgagee

(cf Act No 48, 1930, s 10)

(1) Where a mortgagor is entitled to the benefit or protection of this Part of this Act, he may consent to the exercise by the mortgagee of all or any of his rights, powers, or remedies, but such consent shall not take away the necessity of the leave of the court, unless the consent is in writing and witnessed by one of the persons mentioned in section thirty-seven of this Act.

(2) Any such consent may be given to a particular exercise of any right, power, or remedy or generally and whether or not any default has been made under the mortgage.

(3) If consent is so given and witnessed, the leave of the court shall, so far as the consent extends, be unnecessary.

(4)

(a) any consent given prior to the commencement of this Act by a mortgagor to the exercise by a mortgagee of all or or any of his rights, powers or remedies if duly given in accordance with the provisions then in force of the Moratorium Act 1930 , or any Act amending the same,

(b) any order made by any court under the provisions of the said Act or Act amending the same granting leave to a mortgagee to exercise all or any of his rights, powers or remedies,

shall be as valid and effective as if such consent had been given or such order made in accordance with the provisions of this Act.

(5) Where a mortgagor has, by instrument inter vivos, disposed of the whole of his estate or interest in any mortgaged property, the consent of such mortgagor shall not be necessary and shall be deemed never to have been necessary under this Act or under any Act repealed by this Act to enable the mortgagee to exercise, without the leave of the court, any of his rights, powers or remedies against that mortgaged property.

(6)

(a) In the case of a mortgage of land the consent of any person whose interest in the land was created by an instrument which is not at the time the right, power or remedy is exercised registered under either the Registration of Deeds Act 1897 , or the Real Property Act 1900 , shall not be necessary and shall be deemed never to have been necessary under this Act or under any Act repealed by this Act, to enable the mortgagee to exercise without the leave of the court all or any of his rights, powers or remedies against the land.

(b) Paragraph (a) of this subsection shall not apply where the person whose interest is so unregistered is the original mortgagor or his personal representative or where such person is in possession of the land or where the mortgagee has express notice of the interest of such person.

(7) Where a mortgagee exercises, without the leave of the court, any power of sale or foreclosure of the mortgaged property or of the land subject to the mortgage, as the case may be, the exercise of such power shall operate to discharge the liability under any covenant expressed or implied in the mortgage of any person whose consent would, but for subsection five or subsection six of this section, have been necessary to the exercise of such right, power or remedy and who has not in fact consented thereto.