77Power of sale under a mortgage or charge

77 Power of sale under a mortgage or charge (1) If within one month after the service of such notice or demand or such other period as is fixed in such mortgage or charge the mortgagor grantor or other persons do not comply with the notice or demand the mortgagee or annuitant may, in good faith and having regard to the interests of the mortgagor grantor or other persons, sell or concur with any other person in selling the mortgaged or charged land or any part thereof, together or in lots, by public auction or by private contract, at one or several times, and for a sum payable in one amount or by instalments, subject to such terms and conditions as the mortgagee or annuitant thinks fit, with power to vary any contract for sale and to buy in at any auction or to rescind any contract for sale and to resell without being answerable for any loss occasioned thereby and with power to make such roads streets and passages and grant and reserve such easements as the circumstances of the case require and the mortgagee or annuitant thinks fit, and may make and sign such transfers and do such acts and things as are necessary for effectuating any such sale. S. 77(2) amended by No. 9976 s. 11. (2) An instrument of transfer by a mortgagee or annuitant expressed to be in exercise of the power of sale and in an appropriate approved form may be accepted by the Registrar as sufficient evidence that the power has been duly exercised. (3) The purchase money received arising from the sale shall be applied— (a) firstly in payment of all costs charges and expenses properly incurred incidental to the sale and consequent on such default; (b) secondly in payment of the moneys which are due or owing on the mortgage or charge; S. 77(3)(c) amended by No. 7332 s. 2(Sch. 1 item 113). (c) thirdly in payment of moneys owing under or in respect of subsequent mortgages and charges in the order of their respective priorities; S. 77(3)(d) amended by Nos 11/2001 s. 3(Sch. item 78.1), 30/2004 s. 11. (d) fourthly in payment of the residue (if any) to the mortgagor or into the Supreme Court under the provisions so far as they are applicable of section sixty-nine of the **Trustee Act 1958** and the rules referred to therein, or if the sale is made by a mortgagee and the land is charged with a subsequent annuity or if the sale is made by an annuitant, in payment of the said residue into an account on deposit at interest in an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth in the joint names of the annuitant and the Registrar to satisfy the accruing payments of the charge and subject thereto for the benefit of the parties who are or become entitled to the residue of the deposited money. S. 77(4) amended by Nos 9324 s. 7(2), 18/1989 s. 12(Sch. 1 item 110), 70/2014 s. 15(a). (4) Upon the registration of any transfer under this section all the estate and interest of the mortgagor or grantor of the annuity as registered proprietor of the land mortgaged or charged shall vest in the purchaser as proprietor by transfer, freed and discharged from all liability on account of such mortgage or charge and (except where such a mortgagor or grantor is the purchaser) of any mortgage charge or encumbrance recorded in the Register subsequent thereto and the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale or that due notice was not given or that the power was otherwise improperly or irregularly exercised but any person thereby damnified shall have his remedy in damages against the person exercising the power, and for the purposes of Part III the purchaser shall be deemed to have dealt with the registered proprietor of the land. S. 77(4)(a)(b) repealed by No. 70/2014 s. 15(b). No. 5842 s. 78.