118. (1) A security for an advance of money upon land may be in Form C in the Schedule.
(2) Form C may be used for a mortgage of any right, title, estate or interest to or in land, whether freehold or leasehold, and whether or not the land is under the operation of the Torrens Acts of the States.
Subject-matter of mortgage of land.
119. It shall not be necessary to specify in a mortgage in Form C the right, title, estate or interest of the mortgagor to or in the mortgaged land, and unless otherwise stated in the mortgage, the mortgage shall extend to and mortgage—
(a) the whole right, title, estate, and interest of the mortgagor at the date of the mortgage to and in the mortgaged land; and
(b) all buildings, erections, fixtures, fences, ways, waters, water-courses, liberties, privileges, easements, rights and advantages whatsoever appertaining or reputed to appertain to the mortgaged land or any part thereof, or at the date of the mortgage demised, occupied or enjoyed with or reputed or known as part or parcel of or appurtenant to the mortgaged land or any part thereof.
Obligations under a mortgage of land.
120. Unless it is otherwise specifically, provided in the mortgage, a mortgage in Form C imposes upon the mortgagor—
(a) an obligation to repay the full amount lent and each instalment thereof and to pay all interest thereon at the times and place and in the manner fixed by the mortgage;
(b) an obligation not to sell, dispose of or part with the possession of the mortgaged land or any part thereof without the consent in writing of the Minister;
(c) an obligation to duly and promptly pay and discharge and keep paid and discharged all rates, taxes and outgoings of whatsoever kind payable or chargeable upon or in respect of the mortgaged land and to produce and hand over receipts evidencing such payment whenever required so to do by the Minister;
(d) an obligation to repair and at all times during the continuance of the mortgage to keep in good and substantial repair and condition all buildings and improvements on the mortgaged land;
(e) an obligation to permit any officer of the Department to enter upon the mortgaged land at all reasonable times and to inspect the same and every part thereof and all buildings and improvements thereon;
(f) where the mortgaged land is a lease or leasehold or other than a full unencumbered fee-simple estate, an obligation to duly and promptly pay all amounts and observe and perform all covenants, conditions and agreements to be paid, observed and performed by the mortgagor or the persons from whom he derives title in order to keep the title of the mortgagor to the mortgaged land in full force and virtue; and
Division Div 4 - Australian Soldiers' Repatriation Regulations 1919 - Mortgage of Land. | Zoe
(g) an obligation to produce and hand over to, and leave in the custody of, the Minister, during the continuance of the mortgage, all title deeds and documents whatsoever in the possession, or under the control, of the mortgagor evidencing the right, title, estate or interest of the mortgagor to or in the mortgaged land.
Obligations to insure buildings against fire.
121. (1) When a mortgage in Form C provides that the mortgagor shall insure buildings against fire, the mortgage imposes upon the mortgagor—
(a) an obligation to insure and keep insured against fire, in the name of the Minister and in an office approved by him for that purpose, all buildings on the mortgaged land to the full amount specified in the mortgage for that purpose or if no amount is specified then to the full insurable value of the buildings; and
(b) an obligation to pay and whenever required so to do by the Minister to produce and hand over to the Minister receipts evidencing payment of all premiums necessary to keep such insurance in full force and virtue.
(2) If the obligation to insure and keep insured is not complied with, the Minister may insure and keep insured the buildings, and the cost of such insurance shall be added to the amount due under the mortgage and for all purposes of the mortgage and these Regulations shall be deemed to be included in the term “amount lent.”
Charge on land for benefit of Minister.
122. A mortgage in Form C charges, for the benefit of the Minister, the mortgaged land with the full amount lent and all interest payable under the mortgage.
Charge of Minister not to be lessened.
123. The charge of the Minister under a mortgage in Form C—
(a) shall not be lessened, weakened, defeated, avoided, postponed or discharged—
(i) by any subsequent sale, disposition, mortgage or parting with the possession by the mortgagor of the mortgaged land (whether with or without the consent of the Minister); or
(ii) by any person other than the mortgagor subsequently acquiring a legal or equitable right, title, estate or interest to or in the mortgaged land;
(b) shall be subject only to the rights of any person other than the mortgagor entitled to—
(i) any prior existing legal estate or interest in the land; or
(ii) any prior existing equitable right, title, estate or interest to or in the land, of which notice in writing has been given to the Minister on or before the date of the mortgage; and
(c) shall not affect the right of the Minister to recover from the mortgagor the full amount lent and all interest payable under the mortgage in the event of the mortgaged land being sold or disposed of with the consent of the Minister.
Effect of non-compliance with mortgage of land.
124. If any obligation imposed upon a mortgagor by a mortgage in Form C or by these Regulations is not complied with, the Minister may—
(a) recover from the mortgagor in any Court of competent jurisdiction the full amount lent and all interest payable under the mortgage; or
(b) apply to a Justice of the High Court or of the Supreme Court of the State in which the land is situated for an order for sale of the mortgaged land.
Application for order for sale.
125. An application for an order for sale may be made by summons or motion in accordance with the rules of procedure of the Court and on the hearing thereof the Justice may—
(a) order the mortgagor to repay to the Minister within a time specified in the order the full amount lent together with all interest payable under the mortgage;
(b) order that in default of payment within the time specified the Minister may sell in the manner directed by the order all the right, title, estate and interest of the mortgagor to and in the mortgaged land at the date of the mortgage; and
(c) order the mortgagor to pay the costs of and incidental to the order.
Application of proceeds of sale.
126 (1) The proceeds of the sale of any land pursuant to an order of the Court under these Regulations shall be applied as follows:—
Firstly—in reimbursement of the costs of and incidental to the order and the expenses incurred in selling and conveying the land to the purchaser;
Secondly—in payment of any interest payable under the mortgage;
Thirdly—in repayment of the amount lent and due under the mortgage; and
Fourthly—in discharge of any subsequent mortgage of or charge upon the land (of which the Minister has been notified in writing) in the order of priority in which the Minister has been notified thereof,
and the balance (if any) then remaining shall be payable to the mortgagor.
(2) In the event of the proceeds of the sale of the land not being sufficient to fully pay the said costs, expenses, interest and amount lent and due under the mortgage, the amount of the deficiency shall be recoverable from the mortgagor by the Minister in any Court of competent jurisdiction.
Conveyance of land by Minister to vest title in purchaser.
127. A conveyance or transfer signed by the Minister conveying or transferring to the purchaser any land sold pursuant to an order of a Justice under these Regulations shall vest in the purchaser all the right, title, estate and interest of the mortgagor to and in the land at the date of the mortgage, freed and discharged from all estates, interests, mortgages and charges of whatsoever nature created or granted by the mortgagor after that date.
Mortgage not required to be registered.
128. Registration of a mortgage in Form C in a registry established under the laws of a State shall not be necessary to protect the rights conferred upon the Minister by the mortgage or by the regulations, but the Minister may if he think fit register the mortgage in any such registry or take any action he deems advisable to have notice of the mortgage inserted in any such registry.