34Restriction on rights of mortgagee

34 Restriction on rights of mortgagee

34 Restriction on rights of mortgagee

(1) Except as in this Part provided no action, suit or proceeding shall be commenced or continued by a mortgagee for the payment by a mortgagor of any moneys secured by a mortgage of land executed or given before the commencement of this Act, or interest thereon, unless the mortgagor, his attorney or agent, or some other person having power in that behalf has, after the commencement of this Act, by instrument under his hand, confirmed any covenant or agreement in the mortgage expressed or implied for such payment, and unless the knowledge and approval of the mortgagor, his attorney or agent, or other person, as the case may be, of the confirmation of such covenant or agreement, is evidenced by a certificate signed in accordance with subsection three of this section.

In the case of a memorandum of mortgage or encumbrance under the provisions of the Real Property Act 1900, such instrument and certificate shall be presented to the Registrar-General in duplicate for registration, and the Registrar-General may register the same.

In the case of a mortgage or charge under the provisions of the Companies (Registration of Securities) Act 1918, such instrument and certificate or verified copy thereof shall, within thirty days after the execution of such instrument, or, if such instrument be executed out of New South Wales, within thirty days after the date on which such instrument or copy would in due course of post, if despatched with due diligence, have been received in New South Wales, be delivered to the Registrar of Joint Stock Companies, and on receipt thereof the Registrar shall enter particulars thereof in the register of mortgages and charges of the mortgagor company kept by him in pursuance of the said Act.

(2) Except as in this Part provided no action, suit or proceeding shall be commenced by a mortgagee for the payment by a mortgagor of any principal moneys secured by a mortgage of land executed or given after the commencement of this Act, or interest thereon, unless such mortgage contains an express covenant or agreement for such payment and unless the knowledge and approval of the mortgagor, his attorney or agent, or some other person having power in that behalf, executing or giving the mortgage, of the insertion of such covenant or agreement, is evidenced by a certificate signed in accordance with subsection three of this section.

(3) Such certificate shall be written or endorsed on the instrument of confirmation or mortgage instrument, as the case may be, and shall be in or to the effect of such of the forms in the Schedule to this Act as may be appropriate, and shall be signed by one of the persons mentioned in section thirty-seven of this Act—