Victorian Consolidated Legislation

Transfer of Land Act 1958 - SECT 77

Power of sale under a mortgage or charge

77. Power of sale under a mortgage or charge



(1) If within one month after the service of such notice or demand or such
other period as is fixed in such mortgage or charge the mortgagor grantor or
other persons do not comply with the notice or demand the mortgagee or
annuitant may, in good faith and having regard to the interests of the
mortgagor grantor or other persons, sell or concur with any other person in
selling the mortgaged or charged land or any part thereof, together or in
lots, by public auction or by private contract, at one or several times, and
for a sum payable in one amount or by instalments, subject to such terms and
conditions as the mortgagee or annuitant thinks fit, with power to vary any
contract for sale and to buy in at any auction or to rescind any contract for
sale and to resell without being answerable for any loss occasioned thereby
and with power to make such roads streets and passages and grant and reserve
such easements as the circumstances of the case require and the mortgagee or
annuitant thinks fit, and may make and sign such transfers and do such acts
and things as are necessary for effectuating any such sale.

(2) An instrument of transfer by a mortgagee or annuitant expressed to be in
exercise of the power of sale and in an appropriate approved form may be
accepted by the Registrar as sufficient evidence that the power has been duly
exercised.

(3) The purchase money received arising from the sale shall be applied-

   (a)  firstly in payment of all costs charges and expenses properly incurred
        incidental to the sale and consequent on such default;

   (b)  secondly in payment of the moneys which are due or owing on the
        mortgage or charge;

   (c)  thirdly in payment of moneys owing under or in respect of subsequent
        mortgages and charges in the order of their respective priorities;

   (d)  fourthly in payment of the residue (if any) to the mortgagor or into
        the Supreme Court under the provisions so far as they are applicable
        of section sixty-nine of the Trustee Act 1958 and the rules referred
        to therein, or if the sale is made by a mortgagee and the land is
        charged with a subsequent annuity or if the sale is made by an
        annuitant, in payment of the said residue into an account on deposit
        at interest in an authorised deposit-taking institution within the
        meaning of the Banking Act 1959 of the Commonwealth in the joint names
        of the annuitant and the Registrar to satisfy the accruing payments of
        the charge and subject thereto for the benefit of the parties who are
        or become entitled to the residue of the deposited money.

(4) Upon the registration of any transfer under this section all the estate
and interest of the mortgagor or grantor of the annuity as registered
proprietor of the land mortgaged or charged shall vest in the purchaser as
proprietor by transfer, freed and discharged from all liability on account of
such mortgage or charge and (except where such a mortgagor or grantor is the
purchaser) of any mortgage charge or encumbrance recorded in the Register
subsequent thereto except-

   (a)  a lease easement or restrictive covenant to which the mortgagee or
        annuitant has consented in writing or to which he is a party; or

   (b)  a mortgage charge easement or other right that is for any reason
        binding upon the mortgagee or annuitant-

and the title of the purchaser shall not be impeachable on the ground that no
case had arisen to authorize the sale or that due notice was not given or that
the power was otherwise improperly or irregularly exercised but any person
thereby damnified shall have his remedy in damages against the person
exercising the power, and for the purposes of Part III the purchaser shall be
deemed to have dealt with the registered proprietor of the land.