A changing landscape : The mortgagee's power of sale in Queensland

In Australia, the extent of a mortgagee’s duty when exercising power of sale has long been the subject of conjecture. With the advent of the global financial crisis in the latter part of 2008, there has been some concern to ensure that the interests of mortgagors are adequately protected. In Queensland, concern of this type resulted in the enactment of the Property Law (Mortgagor Protection) Amendment Act 2008 (Qld). This amending legislation operates to both extend and strengthen the operation of s 85 of the Property Law Act 1974 (Qld) which regulates the mortgagee’s power of sale in Queensland. This article examines the impact of this amending legislation which was hastily introduced and passed by the Queensland Parliament without consultation and which introduces a level of prescription in relation to a sale under a prescribed mortgage which is without precedent elsewhere in Australia.

Legislative impact on the mortgagee’s exercise of power of sale : the need for rationalisation

Throughout Australia, regulation of the power of sale is highly inconsistent. In response to the uncertain nature of the mortgagee’s duty at common law, many legislatures have intervened. As a result, there has been a proliferation of statutory formula conferring varying degrees of protection on mortgagors. The differences in approach indicate a lack of consensus as to the best method of regulation. This article exposes the extent of the inconsistency and provides a comparative assessment of the various provisions with reference to the policy concerns that underpin legislative intervention. The article identifies a number of deficiencies associated with existing provisions and concludes that mortgagees and mortgagors alike would benefit from improved clarity and consistency. To that end, the article proposes a model provision that seeks to address the deficiencies identified.

Mortgagee sale obligations tightened

The enactment of the Property Law (Mortgagor Protection) Amendment Act 2008 (Qld), means that the obligations of a mortgagee exercising power of sale or a receiver selling have been substantially tightened in Queensland. Background As explained in the explanatory notes accompanying the legislation, with current global economic and financial circumstances, there were concerns about the position of mortgagors when mortgagees exercised their powers of sale. The objective of the amending legislation was to protect the interests of mortgagors by strengthening the statutory provisions relating to the duty of the mortgagee exercising power of sale to take reasonable care to ensure the property is sold at market value. The amending legislation was urgently passed without any consultation process.

Sale of property gifted under a will by an attorney acting under an enduring power of attorney : does the gift adeem and what is the attorney's duty?

The authors examine Moylan v Rickard and how the case illustrates the effectiveness of the Powers of Attorney Act 1998 (Qld) to provide remedies and other possible avenues of redress

Caveating a mortgagee sale - The need for a uniform approach

The ability of a mortgagor to lodge a caveat, where an allegation is raised of serious impropriety by a mortgagee in exercising power of sale, may be a critical protective tool for a mortgagor. The mortgagor’s capacity, as caveator, to lodge a caveat over the mortgagor’s own title and the nature of the interest necessary to support the caveat are contentious issues. This article examines the different judicial approaches that have been adopted to date and states a case for a uniform approach to this issue across Australia in the future.

The Law of Real Property Mortgages

This book examines the principles and practice of real estate mortgages in an easily accessible text referenced to all the Australian States. It specifically deals with the major theoretical and practical aspects of the land mortgage including vitiating factors in formation, mortgagees powers and duties and mortgagors’ rights both statutory and other, assignment, insurance and discharge. As a successor to Mortgages Law in Australia, this book adopts an exclusive focus on real estate mortgages in Australia and provides a thorough account of the law through analysis of the plethora of court decisions and statutory provisions in this area. Duncan and Dixon analyse the substance of the mortgage transaction from creation through to rights of enforcement. This analysis includes detailed consideration of the rights and obligations of both mortgagors and mortgagees covering topics such as priorities and tacking, insurance, variation and assignment, rights of discharge, entry into possession, foreclosure and power of sale. In addition, the book contains a separate chapter on factors that may affect the validity and enforcement of a mortgage together with separate consideration of a mortgagee’s right to enforce a guarantee provided on behalf of a mortgagor and the rights and liabilities associated with a receivership regime initiated by a mortgagee. Written for the national market, the book is one of the few substantial works on this subject for practitioners throughout Australia. It is a very accessible text which enables readers to decide whether or not they have a problem and provides primary guidance to its solution. The book has been deliberately, heavily referenced to incorporate statutory references from across Australia and contains extensive case analysis in order to satisfy both these objectives.

BPA in promoting energy conservation and renewables : hearing before the Subcommittee on Water and Power of the Committee on Energy and Natural Resources, United States Senate, One Hundred Seventh Congress, first session to receive testimony on the role of the Bonneville Power Administration in promoting energy conservation and renewables, August 13, 2001, Seattle, WA.

"Printed for the use of the Committee on Energy and Natural Resources."

Minot, North Dakota; Oroville-Tonasket, Washington; and San Luis Valley Project, Colorado--water resource legislation : hearing before the Subcommittee on Water and Power of the Committee on Energy and Natural Resources, United States Senate, One Hundredth Congress, first session, on S. 641 ... S. 649 ... S. 1549 ... August 5, 1987.

Shipping list no.: 88-43-P.

Grandmother's scrap-book : or, The way to do good ; designed to encourage the highest religious attainments within the power of man.

Mode of access: Internet.

Central Valley Project Improvement Act : hearings before the Subcommittee on Water and Power of the Committee on Energy and Natural Resources, United States Senate, One Hundred Second Congress, first session, on S. 484 ... Los Angeles, CA, March 18, 1991; Washington, DC, May 6, 1991; Sacramento, CA, May 30, 1991.

"San Francisco, CA, September 4, 1991"--Pt. 2.

Newlands Project, Nevada : hearing before the Subcommittee on Water and Power of the Committee on Energy and Natural Resources, United States Senate, One Hundred Third Congress, first session, on the contemporary needs and management of federal reclamation projects which are operated or overseen by the Secretary of the Interior through the U.S. Bureau of Reclamation.

"April 12, 1994"--Pt. 2.