Mortgagors Relief Act of 1931 (22 Geo v No. 6) (Qld)

13848 MORTGAGORS' RELIEF. Mortgagors Relief Act. - -- - -- ~ -- - ~- - - 22 GEO. V. No. 6, MORTGAGORS' RELIEF. 22:i;o6. V . An Act to Confer Jurisdiction to grant Reliet to THE MORTGAGORS RELIEF ACT OF 1931. certain Mortgagors in certain cases. [ASSENTED TO 2ND SEPTEMBER, 1931.] W· Preamble. HEREAS on account of the special economic conditions at present prevailing it is desirable to confer jurisdiction to postpone the exercise of powers of sale by certain mortgagees under certain existing mortgages securing fixed liabilities in certain cases and to grant certain further relief to certain mortgagors: Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- Short title. 1. (1.) This Act may be cited as "The Mortgagors Relief Act of 1931." Commence- (2.) This Act shall be deemed to have come into ~ en~ .and force on the first day of Augus.t, one thousand nine d. r; . ~ . ~ · 931, hundred and thirty-one, and shall continue in force No. 3. until a date to be appointed for the ceasing of the opera- tion thereof by Proclamation published in the Gazette, or until the thirty-first day of December, one thousand nine hundred and thirty-two, whichever date is the earlier. I'rovision (3.) On the date so appointed or fixed under the for repeal. last preceding subsection for the ceasing of the operation thereof this Act shall be deemed to have been repealed. Savings. (4.) Notwithstanding such repeal, all proceedings pending under this Act at the date of such repeal may be continued and completed as if this Act were still in force, and all orders under this Act theretofore made and then subsisting, or thereafter made in any such pending proceedings, shall enure as if this Act were still in force, and all proceedings may be taken and all jurisdiction exercised with respect to such orders accordingly : Provided that after such repeal no such order shall be extended under subsection two of section eight hereof.

l\lOR'rGAGORS' RELIEF. 13849 1931. 111orig,agors Belief L-1ef. (5.) The provisions of this Act shall not apply to Act not to the Crown. apply to Crown. 2. In this Act, unless inconsistent with the context- I~terpreta. . tlOn. "Mortgage" means any deed, memorandum of Mortgage. mortgage, instrument, or agreement whereby security for payment of money is granted over real or personal property or any interest therein, and includes an agreement for sale and purchase of real and personi:lJ property where payment of the unpaid purchase money and interest thereon is secllred on such property; but not including a mortgage payahle on demand: For the purposes of this Act an agreement for sale and purchase of land shall be deemed to be a mortgage of such land to secure payment of the unpaid purchase-money and interest thereon and fulfilment of the conditions set forth in the agreement; " Mortgagee" means the person entitled to receive Mortgagee. payment of any moneys payable under a mortgage. " Mortgagor" means a person liable to payment Mortgagor. of moneys secured by mortgage. 3. This Act shall apply to all mortgages as herein- Application before defined except mortgages exocuted after the of Act. commencement of this Act. 4. (1.) It shall not be lawful for a mortgagee under Lirr:itation a mortgage to which this Act applies or an v v other l)erson-- m of orrItgg' h1tgse o es f . (a) To exercise (except in respect of property which the mortgagor has abandoned) any power of sale, rescjssion, or entry into possession conferred by any such mortgage or by statute; or (b) To issue or to be concerned in the issue of any process 6f execution in pursuance of any judgment, decree, or order of any court in its civil jurisdiction obtained against the mortgagor in respect of any covenant, con- dition, or agreement expressed or implied Fl

13850 ::'IIORTGAGOHS' RELIEF. Jiortgagors Relief Act. 22 GEO. V. No. 6> ._------- .in the mortgage, whether so obtained before or after the commencement of this Act, or to continue or to be concerned in the continuance of any such process of execution, whether commenced before or after the commencement of this Act, otherwise than subject to and in accordance with the· provisions of this Act. (2.) For the purposes of this Act the exercise of a power of sale shall be deemed to be completed when the vendor becomes bound by an agreement or contract of sale, and the onus of proving that any property has been abandoned by a mortgagor shall rest upon the mortgagee. Procedure to 5. (1.) A mortgagee before proceeding to do a,ny ~; adopted such act or exercise any such power as is defined in the mortgagee last preceding section shall give to the mortgagor notice bperofocreeeding in writing ~ : of his intention to do such act or exercise such to exerciso pO\Ver. certain powers. (2.) Such notice shall contain an address for service,. and shall be signed by the mortgagee or by some duly authorised attorney or agent of the mortgagee, and shall be deemed to be duly given if delivered to the mortgagor personally, or if posted by registered letter addressed to the mortgagor at his last known place of abode in Queensland. A notice so posted sh301l be deemed to have been given at the time when the registered letter would in the ordinary course be delivered. (3.) If the mortgagor does not within one calendar month after the giving of any such notice of intention to exercise any power or issue any process of execution in respect of land, or within fourteen days after the giving of any such notice of intention to exercise any power or issue any process of execution in respect of chattels, make an application to the Supreme Court for relief as hereinafter provided, and serve a copy of such application on the mortgagee, the mortgagee may on the expiration of the said calendar month or fourteen days, as the case may be, proceed to do such act or exercise such power as aforesaid. (4.) If the mortgagor makes such application and serves a copy thereof in accordance with the last preceding subsection, the mortgagee shall not do such act or exercise such power until such application has been

MORTGAGORS' RELIEF. 13851 1901. disposed of by the Supreme Court, or otherwise than subject to and in accordance with any order made· by the Supreme Court as hereinafter provided. 6. A mortgagor shall in making such application ApplicatioDl to the Supreme Court for relief state therein the date on !!rtgagor which such notice as aforesaid was given by the mortgagee to Supreme and shaH also set forth therein the specific grounds for ; e~ r: f~ for such relief. 7. In determining whether relief against the doing Matters tohfeanmyoratcgtagoer ethsehaelxl e , r b c e isgeroafntaendy tpoowtheer amsoartfgoaregsoari,d tb h ye b t o o y o hS' = : udp ~ remd e. Supreme Court may take into consideration~ - Ooulr.t o~ app lCatlOn (a) The effect of the . continuance of the mortgage m by ortgagor. upon the security thereby afforded to the mortgagee; (b) The inability of the mortgagor to redeem the property either from his own moneys or by borrowing at a reasonable rate of interest; (c) The conduct of the mortgagor in respect of any breaches by him of the covenants of the mortgage; (d) Any hardship that would be inflicted on the mortgagee by the continuance of the mortgage or upon the mortgagor by the enforcement thereof; (e) The extent to which any default by the mort- gagor has been caused by any economic or financial conditions affecting trade or industry in Queensland; (f) \Vhether any relief granted by the court pursuant to this Act would be reasonably likely to enable the mortgagor, having regard to his circumstances and the conditions mentioned in the last preceding paragraph, to meet his liabilities under the mortgage within such time as the court deems reason- able; (g)A.ny other relevant consideration. 8. (1.) If, having regard to the considerations Nature of mentioned in the last preceding section and to all other relief that re]evant considerations, the court is of opinion that :~ ~t~ ~ by relief should be granted to the mortgagor, it may, in its court.

13852 MORTGAGORS' RELIEF. Mortgagors Relief Act. 22 GEO. V. No. 6, absolute discretion, subject to such terms and conditions as it thinks fit to impose, order that the mortgagee shall not, before a date specified in such order (being not later than twelve months after the date of the mortgagor's application for relief), do any l:tct or exercise any po\ver mentioned in section four hereof, save by leave of the Supreme Court upon application by the mortgagee in that behalf, on account of a breach by the mortgagor of any such terms and conditions as aforesaid. (2.) At any time before the date specified as aforesaid the Supreme Court may, on. the application of the mortgagor, extend the order to a date not later than twelve months after such specified date. In granting any such extension, the court may impose such terms and conditions, and make such variations in the terms and conditions of the original order, as it thinks fit. Spec!a! 9. (1.) Where, with respect to any mortgage to tporOcVaIsSeIsons as W h· lCh t-h· IS ACt app1l·es, tlle exercI.se 0 f any power or tlle where doing of any act defined in paragraph (a) or in paragraph b~ : uers have (b) of section four hereof has been completed (whenever exercised commenced) after the commencement of this Act but cboemtwmeeenncteh. e before the passing thereof, the mortgagor may apply to ment and the Supreme Court for an order setting aside the exercise r~ fqs~ ~ t~ f of such power or the doing of such act, reinstating all parties as nearly as may be in their former positions, and granting relief to the mortgagor as provided in section eight hereof as if the exercise of such power or the doing of such act had not been completed. (2.) If the court, having regard to the considerations mentioned in section seven hereof and to all other relevant considerations, is of opinion that such relief should be granted to the mortgagor, it may, in its discretion, subject to such terms and conditions as it thinks fit to impose, and notwithstanding that rights may have been acquired by any person other than the mortgagee, make any such order as pcforesaid, or any particular order which may be required to enable such relief to be granted: Provided that no order shall be made under this section in any case where the property in respect of which such power has been exercised or such act has been done has been sold at the time of or after the exercise of such power or the doing of such act to a person other than the mortgagee and such sale has been completed by the payment of the purchase-money and the delivery of the property and the documents of title (if any) before the passing of this Act.

1\IOR'l'GAGORS' RELIEF. ---- ~ ~ . - - - - - ~ ~ ~ - 19~ n. 13853 (3.) The provisions of subsection two of section eight hereof shall apply with respect to any order made under this section in so far as such order grants relief as provided in the said section eight. (4.) No application to the Supreme Court under this section shall be heard by the court unless the application is made within one month after the passing of this Act. (5.) Subject to the provisions of any order that may be made under this section, the exercise of any such power or the doing of any such act as aforesaid which has been completed before the passing of this Act shall not by reason of anything in this Act be deemed to have been unlawfully so completed. 10. (1.) Any application to the Supreme CourtProeedure.. under this Act may be made by IllOtion, supported by afndf1vit, with notice to such persons as the court considers entitled thereto. Every such application shall be made and heard in the Supreme Court office nearest to the plaee where the land or other property to whieh the application relates is situated: Provided that during the absence of Et judge, or during the inability of a judge to act from any cause whatever, the registrar of the court shaH have authority and jurisdiction to order that any snch application be heard at some other place. (2.) The mortgagor making Hie application shall use due diligence in effecting the required services, and if he fails so to do the mortgagee l1"lay move to dismiss the application, and the court mt1Y on thi1t ground dismiss' the ttpplication accordingly. (3.) Any application under this Act may be made to and disposed of by a Judge in Chambers. (4.) There shall be no appeal from any order under this Act. 11. (1.) The Governor in Council may from time Powerio to time,. by Or~ e~ in Cou~ l~ il pUblish:d in the Gazette, :' ;1~ ~p' ~sct apply the provlslOns of thlS Act, with the necessary containing Ill, modifications, to les"ses of land containing an optionalPlurehasing or compu 1 sory purc 1 lasm · g c 1 anse grante '-d b e f ore t h e e aU8C. coml!lencement of this Act, or to any such lease or leases or to any class or classes thereof. (2.) For the purposes of this Act, every such lease to which this Act applies shall be dealt with in all respects

13854 MORTGAGORS' RELIEF. Mortgagors Relief Act. 22 GEO. V. Xo. 6, - - ~ ~ - - - - - - - - - - - - - - --- --- --- -~ as if the lessee had already notified his exercise of an option to purchase under an optional purchasing clause, and as if the lessor were mortgagee and the lessee were mortgagor of the land, and as if the rent reserved by the lease were interest and the agreed purchase-money were principal moneys secured. The term of the lease shall, if necessary, be extended for the purpose of giving effect to this provision. Jurisdiction 12. In order that full effect may be given to the intent ,< C >f oSurutpwreimthe 0 f ~ t h I ' S A et, t h e S upreme C ourt s h a 11 , in every matter respect to arising in respect of a mortgage, or of a lease containing , maraistitnegrsunder a purclla'smg c1ause, to wh l ' C h th' IS Act appll'es, have this Act. full power and jurisdiction to deal with and determine such matter in such manner, and to make such order, not inconsistent with the provisions of this Act, as it deems just and equitable under the circumstances of the case, notwithstanding that express provision in respect of such matter is not contained therein. E'm:ther relief 13. (1.) For the purpose of affording a further provi"ions. measure of relief to a mortgagor to whom this Act : C N f o . . 1 3 9 3 30 (Q . .). applies detrimentally affected on account of the special economic conditions at present prevailing, it is hereby further declared as follows :- Application by mortgagor. (a) Any mortgagor may by notice in writing under his hand in the prescribed form or to the like effect apply to the court that he desires the terms and conditions of his mort- gage to be considered by the court under this Act with a view of being afforded a measure of relief by the court in respect of his mortgage as defined by this Act; Considera- tion by the ,court, (b) In determining whether relief shall be granted to the mortgagor the court may take into considera.tinn- (i.) The extent to which (,11e mortgagor has been or is being detnmentally affected on account of the special economic conditions at present prevailing; (ii.) The amount of arrears, if any, in respect of instalments; , (iii.) The terms and conditions of repayment of the mortgage;

MORTGAGORS' RELIKB', --------- ------------- 1931. ~ lJ1ortgagors Relief Act, 13855 (iv.) All or any of the matters for consideration as prescribed in section seven aforesaid; (v.) Any other factors and circumstances as may be deemed fit and proper. (2.) If, having regard to the considerations mentioned in the last preceding subsection and to all other relevant (3onsiderations, the court is of opinion that relief pursuant to this section should be granted to the mortgagor, the court may in its absolute discretion, after considering all the circumstances of the case and the position of the parties, by its order grant such measure of relief as shall be indicated in such order of the court and as the court thinks just and equitable. (3.) Such relief pursuant to this section which may Extent of be granted by the court may be in respect of all or any rellCf. .of the following matters or things : - (i.) An extension of the period of repayment of principal due under the mortgage, indicating in such order the particulars of such extension with the concomitant variation in the amount of instalments; (ii.) In respect of an agreement for the sale and purchase of land an extension of the period for payment of purchase money, indicating in such order the particulars of such extension with the concomitant variation in the amount of instalments; (iii.) The making of interest only payable, and the period within which interest only shall be payable; (iv.) The funding of any arrears of instalments; (v.) Any relief and, if so, the extent thereof to be made in respect of painting, repairs, and other conditions of the mortgage concerned. (4.) If, however, on the hearing of any such applica- Hefusall~ o t I · On as ' a f oresal' d t Ile cour t ,after conSI'_ der· mg t.he grounds grant re.lef. upon which the applica,tion is made, and the grounds (if any) on which any such application is opposed and all ()ther circumstances of the case, is of opinion that such application should be refused, the court may make an order refusing such application for relief under this section accordingly.

13856 MORTGAGORS' RELIEF. Mortgagors Relief Act. 22 Goo. V. No. G. Notice to be (5.) Unless the mortgagee is actually present by given. himself or his solicitor or agent at the time of the giving or making of the order of the court under this section, any application to the court by a mortgagor shall not be entertained by the court unless the mortgagor has served on the mortgagee, in accordance with the practice of the court as to services of summons, a notice of his. intention to make the application. The practice of the court in question as to the time and place and method of service and otherwise shall apply to the service of a notice under this section. Jurisdiction 14, (I.) vVhere the principal moneys remaining due Auncdter this and unpaid under the provisions of any mortgage do conf~ rred on not exceed two thousand five hunch·ed pounds, the minargeIssptreactteosf M agl . s t ra t es C our t cons t· lu t U -' te d purs . uan t t 0 *"TI ne .1 1 , J ag~ . s- mortgages tmtes Co'urts Act of 1921," and constituted by a police wprhinerceiptahle Inagl . s t I . a . l j- ie SI ·tt , · lng a, I one, s 1 la ~ ll I l " d;v ~ e ~ In I , espec ~ t 01 ~ Sl ' lC h ~ moneys do mortgage, and the doing of any act oJ' the exercise of £ n2o,t50e0x.ceed any power 1 1 : y t h ..e mortgagee, an . d t h e ma J n . ng 0 f , or t h e C T f.1931, refusing to make, an order for relief pursuant to the No. 1 (Q.). provisions of section thirteen of this Act, the same jurisdiction, powers, and discretions as are by this Act, conferred upon the Supreme Court. (2.) In the case of any such mortgage, unless: inconsistent with the context, all the provisions of this Act shall apply and be read and interpreted as if the words "a Magistrates Court" ,vere substituted for the words "the Supreme Court," and the words "the Magistrates Court" for the words " the court." (3.) Any order of the Magistrates Court made or purporting to have been made under the provisions of this Act shall be final and conclusive and without appeal, and no writ of prohibition or certiorari shall lie in respect thereof. Orders. 15. An order mucie by the court pursuant to this Act shall have authority and effect as an order of the court,. and shall be obeyed by all persons concerned: Provided that in any case where a mortgagor' to whom an order of relief has been granted by the court neglects or contravenes or fails to comply with the * 12 Geo. v. No. 22, supra, page 9713.

1931. MORTGAGORS' RELIEF. ~ lJ1ortgagor8 Relief Act. provisions thereof, it shall be competent for the mortgagee to apply to the court for a cancellation thereof, and the court on such application may make such order as it shall deem fit and proper. The provisions of this section shall also apply and extend in the case of any order made pursuant to * "The Purchasers of Homes Relief Act of 1930." 16. The costs of any application under this Act Costs. shall be in the absolute discretion of the court. 17. The Registrar of Titles may, upon the submission ;rra:sfer of to him for registration of a transf~ r of property on sale s~ fes ~ ~ by the mortgagee thereof, require such evidence as he mortga~ ees. deems necessary that the sale sought to be given effect to by the transfer does not contravene any order of the court nlacie under this Act; and he l'llay refuse to register the transfer until such evidence is submitted to him. 18. Any stipulation, covenant, or condition in ~ fZ~ : !oi~um any mortgage to which this Act applies vvhich declares mortgage or n i urports to declare tha . t any ' mo " ratorium or the like n pr o e t v t e o n t matter shall not apply m respect ot tbe mortgage application. concerned shall not pI'eYcnt the court from making any order under this Act. 19. The Governor in Council mav from time to time Regulationi!. make regulations prescribing the form' ~ to bo used and the procedure to be fonowed under this Act, and all such other matters and things as may be necessary or con- venient for giving fun effect to the provisions of this Act and for the due administration thereof. Such regulations sl:iRll be pul)lished in the Gazette, and forthwith upon such publication shall be read and construed as one with thib Act, and shall be judicially noticed, and shall not be questioned in any proceedings whatsoever. All such regulations shall be laid before the Legislative Assembly within fourteen days after such publication if the Legislative Assernbly is in session; or if not, then within fourteen days after the commencement of the next session thereof. * 21 Oco.,V. No. 33, 8upm, pagc 130[)4.

13858 }\IORTGAGORS' RELIEF. ---- --- -~- --- --- - Mortgagors Relief Act. 22 GEO. V. No. 6,1931. o A; v t pIapgliisctartaitoens ~ j} fag 2 i8 0 tr . ate S 8 ub C j o e u c r t t8 to A t c h t is of Ac1t9, 2t1h" e apnrodviRsiuolness ooff * C " o T u h r e t COUl ts Act,. made thereunder shall, so far as the same are applicable, apply and extend in respect of any matter or thing under this Act \vhere such Magistrates Court has jurisdiction under this Act, and the power and <1uthority to make Rules of Court under such Act shall apply and extend for the purposes of this Act. * 12 Gea. Y. No. 22, 8111'1'0, pn~ : c U713. - - -~ - - - - - - - MORTGAGORS' RELIEF IN RESPECT OF INTEREST See COMMONWEALTH AND STATES-FINANCIAL EMERGENCY ACT, PART VI. MORVEN BRANCH BUSH NURSING ASSOCIATION See PART n., FUNDS. PAINT. See HEALTH. PARLIAMENT, REDUCTION OF MEMBERS AND REDISTRIBUTION OF SEATS. See ELECTIONS. PEARL AND TROCHUS SHELL AND BECHE-DE- MER. See FISHERIES. PENSIONS OF EX-JUDGES, AND GENERALLY. See COMMONWEALTH AND STATES-FINANCIAL EMERGENCY ACT. POLICE PENSIONS. See COMMONWEALTH AND STATES-FINANCIAL EMERGENCY ACT.