63Covenants to produce implied by schedule of documents

#### 63 Covenants to produce implied by schedule of documents 63 Covenants to produce implied by schedule of documents > > (1) In a deed to which there is a schedule of documents expressed to be covenanted to be produced by any party indicated as the covenantor to any party indicated as the covenantee, there shall be deemed to be included and there shall by virtue of this Act be implied a covenant by such covenantor with such covenantee that the covenantor, the covenantor’s executors, administrators, or assigns, or other the person for the time being in whose possession the documents mentioned in such schedule ought to be, at the request and cost of the covenantee, the covenantee’s executors, administrators, or assigns, will unless prevented by fire or other accident, produce within New South Wales as often as required to the covenantee or them or as the covenantee or they shall direct all documents mentioned in such schedule, and that the covenantor, the covenantor’s executors, administrators, or assigns, or such other person as aforesaid, will, unless prevented as aforesaid, keep the said documents safe, whole, and uncancelled, save so far as they shall be cancelled on the bringing under the provisions of the [Real Property Act 1900](/view/html/inforce/current/act-1900-025) of any of the land to which they relate. > > > (2) Such covenant shall bind the person in whose possession the documents the subject thereof should for the time being be: Provided, however, that if any person not being entitled to the possession of any document shall impliedly covenant to produce it, the liability under the covenant shall not extend beyond the covenantor, the covenantor’s executors, administrators, and assigns, but the covenantor and they shall be and remain subject to such liability. > > > (3) Any person claiming to be entitled to the benefit of a covenant implied as aforesaid may apply to the Court for an order directing the production of the documents to which it relates, or any of them, or the delivery of copies of or extracts from those documents, or any of them, to the person or some person on his or her behalf, and the Court may, if it thinks fit, order production, or production and delivery accordingly, and may give directions respecting the time, place, terms, and mode of production or delivery, and may make such order as it thinks fit respecting the costs of the application or any other matter connected with the application. > > > (4) Any person claiming to be entitled to the benefit of such covenant may apply to the Court to assess damages for any loss, destruction of, or injury to the documents, or any of them, and the Court may, if it thinks fit, assess damages accordingly and order payment thereof by the person liable. > > > (5) This section only applies to deeds made after the commencement of this Act. > > **s 63:** Am 1970 No 52, Second Sch (am 1972 No 41, Second Sch).