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](/view/html/inforce/current/act-1900-025), 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](/view/pdf/asmade/act-1918-37), 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— > > > > Provided that in any case in which a series of debentures contain a charge over any land of a corporation and there is no trust deed, or other instrument mortgaging or charging such land to secure such debentures, the certificate referred to in subsection two of this section shall be endorsed on one of the debentures of the series or a verified copy thereof, and— > > > > > (a) if the corporation be a company formed or registered under the provisions of Part 1 of the [Companies Act 1899](/view/pdf/asmade/act-1899-40), shall be delivered to the Registrar of Joint Stock Companies with the documents required to be filed with or delivered to the said Registrar for registration of the debentures under the provisions of the [Companies (Registration of Securities) Act 1918](/view/pdf/asmade/act-1918-37), and the said Registrar shall include particulars of such certificate in the particulars of the charge entered by him in the appropriate register kept by him in pursuance of the said Act, > > > > > (b) in any other case shall be registered under the provisions of the [Registration of Deeds Act 1897](/view/pdf/asmade/act-1897-22). > > > (4) Any covenant or agreement so confirmed and evidenced as in subsection three of this section provided shall be as valid and effectual as if subsection seven of section twenty-five of the Moratorium Act had not been enacted. > > > (5) Nothing in this section contained shall in any way affect— > > > > > (a) any of the rights, powers, or remedies of the mortgagee to, over, or against the mortgaged property, > > > > > (b) any of the rights, powers, or remedies of a mortgagee upon any security for the payment of money other than a mortgage of land and whether collateral thereto or not, and whether such security gives a charge over property or not. > > > (6) Nothing in this section or in section twenty-five of the Moratorium Act contained shall in any way affect— > > > > > (a) the remedy given to a mortgagee by section ten of this Act, > > > > > (b) any of the rights or remedies of a holder in due course of any bill of exchange, promissory note, cheque, or other negotiable instrument against any person liable thereunder, > > > > > (c) any of the rights of action or other remedies of a mortgagee against a mortgagor to recover advances made or the amount of credits provided or given after the commencement of this Act in the case of a mortgage executed before the commencement of this Act whereby further advances or further credits are secured. > > > (7) Nothing in this section or in section twenty-five of the Moratorium Act contained shall be construed so as to affect any right, power, or remedy of the mortgagee for the recovery of any moneys secured by a mortgage of land and interest thereon in the event of— > > > > > (a) a sequestration order being made against the mortgagor whether such order be made before or after the commencement of this Act, or > > > > > (b) the mortgagor executing a deed of assignment or of arrangement under the provisions of any bankruptcy law for the time being in force whether such deed be executed before or after the commencement of this Act, or > > > > > (c) an order being made or resolution passed for the winding-up of the mortgagor being a company whether such order or resolution be made or passed before or after the commencement of this Act, or > > > > > (d) the estate of a deceased mortgagor being insolvent and being administered by or under the direction of any court whether the decree or order for such administration be made before or after the commencement of this Act. > > > (8) A creditor whose proof of debt has, before the commencement of the [Moratorium (Amendment) Act 1936](/view/pdf/asmade/act-1936-58), been rejected on the ground that the provisions of subsection seven of this section did not extend to the winding-up of a company or the administration of the estate of a deceased mortgagor pursuant to an order or decree made or resolution passed before the commencement of this Act, or to the administration of the estate of a mortgagor against whom a sequestration order has, before such commencement, been made, or who has, before such commencement, executed a deed of assignment or of arrangement, and whose proof of debt is after the commencement of the [Moratorium (Amendment) Act 1936](/view/pdf/asmade/act-1936-58), admitted, shall be entitled to be paid, out of any money available for dividend, any dividends he has failed to receive, before that money is applied to the payment of any future dividend; but he shall not be entitled to disturb the distribution of any dividend declared before his debt is proved after the commencement of the [Moratorium (Amendment) Act 1936](/view/pdf/asmade/act-1936-58), by reason that he has not participated therein. > > **s 34:** Am 1936 No 58, sec 2 (i).