New South Wales Consolidated Acts

MORATORIUM ACT 1932 - SECT 7

7 Fluctuating advances

(1) The Supreme Court may on the application of the mortgagee under a mortgage to secure a fluctuating advance with a limit exceeding six thousand dollars, whether such mortgage shall have been executed before or after the commencement of the Moratorium Act 1930 , or of this Act, order that some or all of the provisions of this Part of this Act shall not apply to such mortgage.

(2) On any such application the court shall consider:

(a) whether by reason of the wasting nature of the security the mortgagee is likely to be prejudiced by a refusal of the application,

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

(c) whether the conduct of the mortgagor whether in regard to the mortgagee or the mortgaged property or otherwise has been such as to render him undeserving of relief,

(d) whether the granting of such an order would inflict great hardship on the mortgagor or would seriously affect his ability to carry on his business,

(e) whether the refusal of the application would be reasonably likely to enable the mortgagor having regard to his circumstances and the economic conditions affecting trade or industry in the State to meet his liabilities under the mortgage within a reasonable time,

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

(3) This section shall not extend to any mortgage which is by section eight of this Act excluded from the operation of this Part of this Act.