New South Wales Consolidated Acts

MORATORIUM ACT 1932 - SECT 6

6 Mortgages to the Crown etc

(1) This section shall apply to:

(a) any mortgage to the Crown, a Minister, or a statutory body representing the Crown, held for advances made under the Returned Soldiers Settlement Act 1916 , as amended by subsequent Acts,

(b) any mortgage to the Commissioners of the Government Savings Bank of New South Wales, held in respect of the Rural Bank Department, Advances for Homes Department, or Government Housing Department.

(2) A mortgagee under any such mortgage shall not exercise any of the rights, powers, or remedies against the mortgagor or the mortgaged property for the recovery of the moneys secured by the mortgage or for the enforcement or realisation of the security expressly or impliedly given to him by the mortgage, other than rights, powers, or remedies which may be exercised in accordance with this Part by a mortgagee without the leave of the court, unless he first gives not less than one month’s notice of his intention so to do to the mortgagor.
Provided that where a mortgagor has by instrument inter vivos disposed of the whole of his estate or interest in any mortgaged property it shall not be necessary, nor shall it be deemed ever to have been necessary, to give any such notice to such mortgagor.
Provided further that in the case of a mortgage of land it shall not be necessary, nor shall it be deemed ever to have been necessary, to give notice to any person whose interest in the land was created by an instrument which is not registered either under the Registration of Deeds Act 1897 , or the Real Property Act 1900 , but this proviso 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.

(3) Any mortgagor who has been given any such notice may apply to the court for an order under this section.
The mortgagee on receiving notice of such application shall not exercise the right, power, or remedy the subject-matter of the notice given by him until such application has been heard and determined.

(4) On any such application the court may make such order as to the exercise by the mortgagee of his rights, powers, and remedies under the mortgage or as to the suspension thereof, and on such terms and conditions as under all the circumstances of the case it thinks fit.

(5) In dealing with an application under this section the court shall consider:

(a) whether by reason of the wasting nature of the security or of the absence of a sufficient margin between the amount of the debt and the value of the security the mortgagee is likely to be prejudiced by the granting of the application,

(b) whether the mortgagor is able to perform any or all of the covenants contained in or implied by the mortgage,

(c) whether the conduct of the mortgagor in respect of the breach by him of any covenant contained in the mortgage, or in respect of any dealing with the mortgagee has been such as to render him undeserving of the benefit of an order,

(d) whether the refusal of an order would inflict great hardship on the mortgagor,

(e) whether the default of the mortgagor has been caused or contributed to by economic or financial conditions affecting trade or industry in the State,

(f) whether the granting of the application would be reasonably likely to enable the mortgagor, having regard to his circumstances and the economic and financial conditions aforesaid, to meet his liabilities under the mortgage within a reasonable time.

(6) On any such application the court may by order declare that the provisions of this Part, or such of those provisions as may be specified in the order, shall apply to the mortgage in respect of which the application was made.
Unless the court makes an order under this subsection the provisions of this Part of this Act, other than this section, shall not apply to any of the mortgages specified in subsection one of this section.

(7) A mortgagor entitled to the benefit and protection of this section may consent to the exercise by the mortgagee of all or any of his rights, powers, and remedies, but such consent shall not take away the necessity of giving the notice required by subsection two of this section unless the consent is in writing and witnessed by one of the persons mentioned in section thirty-seven of this Act.

(8) 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.

(9) Any such mortgage as is referred to in subsection one of this section executed after the commencement of this Act shall not be subject to any provision of this Act.

(10) In this section "mortgage" includes an agreement for the sale and purchase of land.