Real Property (Further Amendment) Act 1987 (NSW)

REAL PROPERTY (FURTHER AMENDMENT) ACT 1987

No. 280

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title
2. Commencement
3. Principal Act

4.     Amendment of Act No. 25, 1900

5.     Amendment of Act No. 6, 1919

6. Savings

SCHEDULE 1—AMENDMENTS

REAL PROPERTY (FURTHER AMENDMENT) ACT 1987 No. 280

NEW SOUTH WALES

Act No. 280, 1987

An Act to amend the Real Property Act 1900 with respect to the production of duplicate dealings, the postponement of mortgages, the exercise of powers of sale and the issue of orders for foreclosure; and for other purposes. [Assented to 16 December 1987]

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Real Property (Further Amendment) 1987

The Legislature of New South Wales enacts:

Short title

1. This Act may be cited as the Real Property (Further Amendment) Act 1987.

Commencement

2. (1) Except as provided by subsections (2) and (3), this Act shall commence on the date of assent to this Act.

(2) Section 5 and Schedule 1 (6)-(8), and section 4 in its application to those provisions, shall commence on a day or days to be appointed by proclamation.

(3) Schedule 1 (9), and section 4 in its application to that provision, shall commence or be deemed to have commenced on the day appointed and notified under section 2 (2) of the Real Property (Caveats) Amendment Act 1986.

Principal Act

3. The Real Property Act 1900 is referred to in this Act as the Principal

Act.

Amendment of Act No. 25, 1900

4.     The Principal Act is amended as set out in Schedule 1.

Amendment of Act No. 6, 1919

5. The Conveyancing Act 1919 is amended—

(a) by omitting from section 111 (2) (b) the word "and" where lastly

occurring;

(b) by inserting after section 111 (2) (b) the following paragraph:

(bl) where a notice is required to be served under paragraph (b), a copy of that notice has been served (in the manner authorised by section 170) on each mortgagee or chargee (if any) under a mortgage or charge to which the land is subject registered in the General Register of Deeds (other than the mortgagee or chargee intending to exercise the power of sale); and

Savings

6. (1) A folio issued, or a requirement made, under section 32 (3) of the Principal Act before the date of assent to this Act shall be deemed to have been issued or made under that provision of that Act, as amended by this Act.

Real Property (Further Amendment) 1987

(2) A request made under section 38 (1) of the Principal Act before the date of assent to this Act shall be deemed to have been made under that provision of that Act, as amended by this Act.

(3) A mortgage postponed under section 56A (1) of the Principal Act before the date of assent to this Act shall be deemed to have been postponed under that provision of that Act, as amended by this Act.

(4) An order for foreclosure issued under section 62 (1) of the Principal Act before the commencement of Schedule 1 (8) shall be deemed to have been issued under that provision of that Act, as amended by this Act.

SCHEDULE 1—AMENDMENTS

(Sec. 4)

(1) Section 32 (Folios of the Register)—

(a) Section 32 (3)—
Omit the subsection, insert instead:

(3) Where a person is registered as proprietor of a lease registered under this Act, the Registrar-General may—

(a)	if the Registrar-General thinks fit so to do, create a folio or folios of the Register for the estate or interest of that person in some or all of the land leased; and
(b)	for that purpose, require the deposit in the office of the Registrar-General of a plan of the land (together with copies) which shall, if the Registrar-General so requires, be a plan of survey within the meaning of the Survey Practice Regulations 1933.

(b) Section 32 (5)—

Omit "or duplicate registered dealing".

(2) Section 33 (Issue of certificates of title)—

Section 33 (1)—

Omit "or duplicate registered dealing".

(3) Section 36 (Registration of dealings)—

Section 36 (6) (b) (ii)—

Omit "or duplicate registered dealing".

(4) Section 38 (Recording dealings on certificates of title etc.)—

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SCHEDULE 1—AMENDMENTS—continued

(a)	requests its production for the purpose of registration of a dealing that relates to the land; and
(b)	the request or a requirement under subsection (2) is not complied with,

the Registrar-General may refuse to register the dealing or to

accept it for registration.

(b)	Section 38 (2), (3)— Omit "or duplicate registered dealing" wherever occurring.
(c)	Section 38 (2)— Omit ", as the case may be,".

(5) Section 56A (Postponement of mortgages)—

Section 56A (1), (1A), (1B)—
Omit section 56A (1), insert instead:

(1) If two or more mortgages registered under this Act affect the same land, the mortgage which for the time being has priority over the other or others may, by a memorandum in the approved form registered under this Act, be postponed to the other or others in so far as the whole or a disposable part of that same land is concerned.

(1A) The reference in subsection (1) to a disposable part of land is a reference to a lot or portion that may be disposed of without contravening section 327AA of the Local Government Act 1919.

(1B) Subsection (1) applies whether or not any one or more of the mortgages which affect the same land affects or affect other

land.

(6) Section 57 (Procedure on default)—

(a)	Section 57 (2) (b)— Omit "and" where lastly occurring.
(b)	Section 57 (2) (bl)— After section 57 (2) (b), insert:

(bl) where a notice is required to be served under paragraph (b), a copy of that notice has been served (in the manner authorised by section 170 of the Conveyancing Act 1919) on—

Real Property (Further Amendment) 1987

SCHEDULE 1— AMENDMENTS—continued

(ii)  each caveator (if any) who claims as an unregistered mortgagee or chargee to be entitled to an estate or interest in the land mortgaged or charged; and

(7) Section 61 (Application for foreclosure order)—

Section 61 (2)—

Omit the subsection, insert instead:

(2) An application under this section shall state—

(a)	that default has been made for 6 months in the payment of the principal sum or interest secured by the mortgage or covenant charge;
(b)	that the land, estate or interest mortgaged or charged has been offered for sale at a public auction by a licensed auctioneer, after notice was given in accordance with section 57 to the mortgagor or covenant charger and all other persons (if any) required to be given notice under that section;
(c)	that the amount of the highest bid at the sale was not sufficient to satisfy the money secured by the mortgage or covenant charge, together with expenses occasioned by the sale; and
(d)	that notice in writing of the intention of the mortgagee or covenant chargee to make the application has been served on—
(i) the mortgagor or covenant charger;

(ii)  all registered mortgagees, chargees or covenant chargees under registered mortgages, charges or covenant charges which have less priority than that of the applicant; and

(iii)  each caveator (if any) who claims as an unregistered mortgagee or chargee to be entitled to an estate or interest in the land mortgaged or charged.

(8) Section 62—

Omit the section, insert instead:

Order for, and effect of, foreclosure

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Real Property (Further Amendment) 1987

SCHEDULE	1— AMENDMENTS—continued
(b)	require the applicant to offer the land mortgaged or charged for sale and to do so in accordance with the directions of the Registrar-General.

(2) If the applicant is required to offer the land for sale and it is not sold or an insufficient amount is realised by the sale to satisfy the principal sum and interest due, and all expenses occasioned by the sale, the Registrar-General may issue to the applicant an order for foreclosure.

(3) Every order for foreclosure issued by the Registrar-General and recorded in the Register has the effect of vesting in the mortgagee or covenant chargee who applied for it all the estate and interest of the mortgagor or covenant charger in the land mentioned in the order—

(a)	in every case, free from any right of a mortgagee, chargee or covenant chargee under a registered mortgage, charge or covenant charge which has less priority than that of the applicant; and
(b)	in the case of mortgaged land, free from any right and equity of redemption of the mortgagor or any person claiming through or under the mortgagor.

(9) Section 74H (Effect of caveat lodged under section 7 4 F ) —

Section 74n (5) (m)— the use of land or positive covenants".