94Power to sell

94 Power to sell (1) If the default in payment or in observance of covenants continues for the further period of 1 month after the service of the notice, or for such other period as is in the instrument for that purpose limited, the mortgagee or encumbrancee may sell all the interest of the mortgagor or encumbrancer in the land so mortgaged or encumbered, or any part thereof, and either altogether or in lots by public auction or by private contract, or both those modes of sale, and subject to such conditions as he or she thinks fit, and may buy in and resell the interest without being liable for any loss occasioned thereby, and may make and execute all such instruments and documents as are necessary for effecting the sale thereof. (2) All sales, contracts, matters and things made, done or executed in pursuance of subsection (1) shall be as valid and effectual as if the mortgagor or encumbrancer had made, done or executed them, and the receipt or receipts in writing of the mortgagee or encumbrancee shall be a sufficient discharge to the purchaser of the land or interest, or of any portion thereof, for so much of his or her purchase money as is thereby expressed to be received. (3) No such purchaser shall be answerable for the loss, misapplication or non-application, or be obliged to see to the application, of the purchase money paid by him or her, nor shall he or she be concerned to inquire as to the fact of any default or notice having been made or given as provided in section 93. (4) The purchase money to arise from any sale under this section shall be applied, first, in payment of the expenses occasioned by the sale; second, in payment of the moneys which are owing to the mortgagee or encumbrancee; third, in payment of subsequent mortgages or encumbrances (if any) in the order of their priority; and the surplus (if any) shall be paid to the mortgagor or encumbrancer, as the case may be. (5) Where a transfer is made in professed exercise of the power of sale conferred by this Act, the title of the transferee shall not be impeachable on the ground that no case has arisen to authorise the sale or that due notice was not given or that the power was otherwise improperly or irregularly exercised, but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his or her remedy in damages against the person exercising the power. (6) A memorandum of transfer executed by a mortgagee or encumbrancee in exercise of the power of sale conferred by this Act shall be accepted by the registrar-general as sufficient evidence that the power has been duly exercised, and he or she shall not be bound or required to call for proof thereof. (7) Where— (a) after the registration under this Act of a mortgage or encumbrance on a parcel of land, there is registered under this Act a notice of a determination made under the Rates and Land Rent (Relief) Act 1970, section 3 in which the parcel of land referred to is the parcel of land subject to the mortgage or encumbrance; and (b) the mortgagee under the mortgage or the encumbrancee under the encumbrance exercises the rights conferred by this section in relation to the land; the notice of the determination shall, for this section, be deemed to be a mortgage of the land referred to in the notice to the Territory having priority according to the date of its registration under this Act and securing the payment to the Territory of an amount equal to the amount for the time being secured by section 108B.