New South Wales Consolidated Acts

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REAL PROPERTY ACT 1900 - SECT 61

Application for foreclosure order

61 Application for foreclosure order

(1) When default has been made in the payment of the interest or principal sum secured by a mortgage or covenant charge for six months, a registered mortgagee or covenant chargee, as the case may be, or his or her solicitor, attorney, or agent may make application in the approved form to the Registrar-General for an order for foreclosure.
(1A) Prior to making an application under subsection (1), and subject to subsection (2A), a notice in writing of the intention of the mortgagee or covenant chargee to make the application must be served in accordance with the provisions of section 170 (1) of the Conveyancing Act 1919 on:
(a) the mortgagor or covenant charger, and
(b) all registered mortgagees, chargees or covenant chargees under registered mortgages, charges or covenant charges which have less priority than that of the applicant, and
(c) 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
(d) each person (if any) who has lodged a priority notice and claims as an unregistered mortgagee or chargee to be entitled to an estate or interest in the land mortgaged or charged.
(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 (unless dispensed with under section 58A) 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 in accordance with this section.
(2A)
(a) The notice of intention to make the application may be given personally or by post to the NSW Trustee and Guardian where, at the time such notice is so given:
(i) the mortgagee or covenant chargee has knowledge of the fact that the mortgagor or covenant charger is dead, and
(ii) there is no personal representative of the mortgagor or covenant charger in New South Wales.
Every notice given to the NSW Trustee and Guardian under this subsection shall be accompanied by a statement containing such particulars as may be prescribed.
(b) Any notice given in accordance with the provisions of paragraph (a) shall be as valid and effectual as if given to the personal representative of the mortgagor or covenant charger unless probate of the will or letters of administration of the estate of the mortgagor or covenant charger is granted to some person other than the NSW Trustee and Guardian within one month after such notice has been so given.
(c) The provision made by this subsection for the giving of notice of intention to make application for an order for foreclosure shall be in addition to and not in derogation from the provision made by section 46B of the Moratorium Act 1932 for the giving of notices.
(3) Such application shall be accompanied by a certificate of the auctioneer by whom such land was put up for sale, and such other proof of the matters stated by the applicant as the Registrar-General may require.
(4) The statements made in such application shall be verified by the statutory declaration of the applicant or other person applying on the applicant's behalf.



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