sec.189ALimit on amounts recoverable by mortgagee

### sec.189A Limit on amounts recoverable by mortgagee This section applies if— a person (the mortgagee ) is recorded in the freehold land register as a mortgagee of a lot, or an interest in a lot, under an instrument of mortgage; and the execution of the instrument of mortgage involved, or was associated with, fraud against a person (the defrauded person ) who is or was a registered proprietor of the lot; and A person engages in fraud by executing the instrument of mortgage, pretending to be the registered proprietor. A person executes the instrument of mortgage as registered proprietor, having first engaged in fraud by executing an instrument of transfer, pretending to be the registered proprietor. the mortgagee is entitled to— if the lot or interest is sold—any proceeds of the sale; or payment of an amount under the mortgage, if the mortgage is otherwise discharged; and if the position of the defrauded person in relation to the lot or interest is not otherwise rectified, the defrauded person will be entitled to compensation under section 188 for deprivation of the lot or interest. Subsections (3) and (4) — apply to limit the interest and costs components of the proceeds of sale or an amount that the mortgagee is entitled to under the mortgage; and apply despite anything to the contrary in the instrument of mortgage (including any associated document). The rate of interest to be applied for calculating the interest component for any particular day for which the instrument of mortgage was in effect must not exceed— if the rate of interest provided for under the instrument of mortgage for the day is less than or equal to the official cash rate for the day plus 2%—the rate of interest provided for under the instrument; or if the rate of interest provided for under the instrument of mortgage for the day is greater than the official cash rate for the day plus 2%—the total of the following— the official cash rate for the day; 2%. The costs component must be limited to the costs incurred by the mortgagee in directly protecting the mortgagee’s interest as mortgagee of the lot or the interest in a lot, to the extent the costs were reasonably incurred. insurance premiums, rates, land taxes costs of entry into possession, costs of exercising power of sale In this section— costs component means costs incurred by the mortgagee in relation to the mortgage. official cash rate , for a day, means the Reserve Bank of Australia’s official cash rate for the day. s 189A ins 2005 No. 68 s 108 amd 2007 No. 19 s 209 ; 2010 No. 12 s 198 (sec.189A-ssec.1) This section applies if— a person (the mortgagee ) is recorded in the freehold land register as a mortgagee of a lot, or an interest in a lot, under an instrument of mortgage; and the execution of the instrument of mortgage involved, or was associated with, fraud against a person (the defrauded person ) who is or was a registered proprietor of the lot; and A person engages in fraud by executing the instrument of mortgage, pretending to be the registered proprietor. A person executes the instrument of mortgage as registered proprietor, having first engaged in fraud by executing an instrument of transfer, pretending to be the registered proprietor. the mortgagee is entitled to— if the lot or interest is sold—any proceeds of the sale; or payment of an amount under the mortgage, if the mortgage is otherwise discharged; and if the position of the defrauded person in relation to the lot or interest is not otherwise rectified, the defrauded person will be entitled to compensation under section 188 for deprivation of the lot or interest. (sec.189A-ssec.2) Subsections (3) and (4) — apply to limit the interest and costs components of the proceeds of sale or an amount that the mortgagee is entitled to under the mortgage; and apply despite anything to the contrary in the instrument of mortgage (including any associated document). (sec.189A-ssec.3) The rate of interest to be applied for calculating the interest component for any particular day for which the instrument of mortgage was in effect must not exceed— if the rate of interest provided for under the instrument of mortgage for the day is less than or equal to the official cash rate for the day plus 2%—the rate of interest provided for under the instrument; or if the rate of interest provided for under the instrument of mortgage for the day is greater than the official cash rate for the day plus 2%—the total of the following— the official cash rate for the day; 2%. (sec.189A-ssec.4) The costs component must be limited to the costs incurred by the mortgagee in directly protecting the mortgagee’s interest as mortgagee of the lot or the interest in a lot, to the extent the costs were reasonably incurred. insurance premiums, rates, land taxes costs of entry into possession, costs of exercising power of sale (sec.189A-ssec.5) In this section— costs component means costs incurred by the mortgagee in relation to the mortgage. official cash rate , for a day, means the Reserve Bank of Australia’s official cash rate for the day. - (a) a person (the mortgagee ) is recorded in the freehold land register as a mortgagee of a lot, or an interest in a lot, under an instrument of mortgage; and - (b) the execution of the instrument of mortgage involved, or was associated with, fraud against a person (the defrauded person ) who is or was a registered proprietor of the lot; and Examples— 1 A person engages in fraud by executing the instrument of mortgage, pretending to be the registered proprietor. 2 A person executes the instrument of mortgage as registered proprietor, having first engaged in fraud by executing an instrument of transfer, pretending to be the registered proprietor. - 1 A person engages in fraud by executing the instrument of mortgage, pretending to be the registered proprietor. - 2 A person executes the instrument of mortgage as registered proprietor, having first engaged in fraud by executing an instrument of transfer, pretending to be the registered proprietor. - (c) the mortgagee is entitled to— (i) if the lot or interest is sold—any proceeds of the sale; or (ii) payment of an amount under the mortgage, if the mortgage is otherwise discharged; and - (i) if the lot or interest is sold—any proceeds of the sale; or - (ii) payment of an amount under the mortgage, if the mortgage is otherwise discharged; and - (d) if the position of the defrauded person in relation to the lot or interest is not otherwise rectified, the defrauded person will be entitled to compensation under section 188 for deprivation of the lot or interest. - 1 A person engages in fraud by executing the instrument of mortgage, pretending to be the registered proprietor. - 2 A person executes the instrument of mortgage as registered proprietor, having first engaged in fraud by executing an instrument of transfer, pretending to be the registered proprietor. - (i) if the lot or interest is sold—any proceeds of the sale; or - (ii) payment of an amount under the mortgage, if the mortgage is otherwise discharged; and - (a) apply to limit the interest and costs components of the proceeds of sale or an amount that the mortgagee is entitled to under the mortgage; and - (b) apply despite anything to the contrary in the instrument of mortgage (including any associated document). - (a) if the rate of interest provided for under the instrument of mortgage for the day is less than or equal to the official cash rate for the day plus 2%—the rate of interest provided for under the instrument; or - (b) if the rate of interest provided for under the instrument of mortgage for the day is greater than the official cash rate for the day plus 2%—the total of the following— (i) the official cash rate for the day; (ii) 2%. - (i) the official cash rate for the day; - (ii) 2%. - (i) the official cash rate for the day; - (ii) 2%.