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.
|Journal||Australian Property Law Journal|
|Publication status||Published - 2008|