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 – as well as assignment, insurance and discharge.
It focuses exclusively on real estate mortgages 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.
In its detailed consideration of the rights and obligations of mortgagors and mortgagees, it covers 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.
Key changes in this edition concern:
the effects of the Personal Property Securities Act 2009 (Cth) on priorities between mortgagees and security interest holders with respect to fixtures;
the impact of the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code, and the new ASIC Act provisions relating to unfair contracts;
the numerous recent decisions on forged mortgages;
statutory changes in New South Wales and Queensland with respect to the execution of mortgages and mortgagees’ obligations when exercising power of sale;
additional material on “all monies” clauses.