A mortgagor's remedies against a mortgagee for the improper exercise of the power of sale: You can't always get what you want

Research output: Contribution to journalArticle

Abstract

The power of sale is arguably the most effective and significant remedy available to a mortgagee against a defaulting mortgagor. While the exercise of the power of sale usually has enormous financial and personal ramifications for a defaulting mortgagor, in Australia the precise nature and extent of a selling mortgagee’s obligations in disposing of the mortgaged property is unclear. In addition, the rights and remedies of a mortgagor in consequence of an improper mortgagee’s sale and, in particular, the right of a mortgagor to have the improper sale set aside are similarly unclear. This article examines and attempts to clarify the nature and extent of a mortgagee’s duty in selling a mortgaged property as well as the remedies available to a mortgagor in the event of an improper sale. Specifically, the author considers the circumstances in which a mortgagor might successfully seek to have an improper mortgagee’s sale set aside both in equity and under Torrens legislation.
Original languageEnglish
Pages (from-to)130-153
JournalAustralian Property Law Journal
Volume15
Issue number2
Publication statusPublished - 2008

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