Victorian Consolidated Legislation

Sale of Land Act 1962 - SECT 29S

Contravention of mortgage requirements

29S. Contravention of mortgage requirements



(1) If land is mortgaged in contravention of section 29P, 29Q or 29R-

   (a)  the terms contract is voidable by the purchaser at any time before the
        completion of the contract; and

   (b)  the vendor is guilty of an offence and liable to a penalty of not more
        than 60 penalty units, in the case of a natural person or 300 penalty
        units, in the case of a body corporate; and

   (c)  if the mortgagee had actual or constructive notice of the interest of
        the purchaser under the terms contract-

   (i)  the mortgagee is not entitled to exercise the mortgagee's remedies
        under the mortgage; and

   (ii) the mortgagee must execute a proper discharge of the mortgage in
        respect of the land sold and obtain registration of that discharge;
        and

   (iii) any amount paid by the mortgagee to the vendor may be recovered by
        the mortgagee from the vendor.

(2) If land under the operation of the Transfer of Land Act 1958 is mortgaged
in contravention of section 29P, 29Q or 29R-

   (a)  on the registration of a transfer in accordance with the section 77 of
        the Transfer of Land Act 1958-

   (i)  the title of the purchaser from the mortgagee is not impeachable on
        the ground that the power of sale was exercised in contravention of
        this section; and

   (ii) for the purposes of Part III of the Transfer of Land Act 1958, the
        purchaser from the mortgagee is deemed to have dealt with the
        registered proprietor of the land; and

   (b)  the purchaser under the terms contract has a remedy in damages against
        the mortgagee for exercising the power of sale if the mortgagee had
        actual or constructive notice of the interest of the purchaser; and

   (c)  Division 9 of Part IV of the Transfer of Land Act 1958 applies, except
        so far as it is inconsistent with the express provisions of this
        section.