South Australian Current Acts

REAL PROPERTY ACT 1886 - SECT 146

146—Discharge of mortgage by Minister in certain cases

        (1)         Where all moneys secured by a mortgage have been paid by the mortgagor and the mortgagee—

            (a)         is dead; or

            (b)         cannot be found; or

            (c)         is incapable of executing a discharge of the mortgage; or

            (d)         has, in the opinion of the Minister, refused to execute a discharge of the mortgage without sufficient reason,

the Minister may execute a discharge of the mortgage.

        (1a)         The Minister must not execute a discharge of mortgage pursuant to subsection (1)(d) unless—

            (a)         the Registrar-General has sent by registered post to the mortgagee at their last known address a notice stating that the Minister proposes to discharge the mortgage pursuant to subsection (1)(d) at the expiration of the prescribed period unless the mortgagee establishes to the satisfaction of the Minister that the mortgagee is justified in refusing to execute a discharge of the mortgage; and

            (b)         the prescribed period has elapsed since the notice was sent.

        (1b)         The prescribed period is—

            (a)         in a case where the notice is addressed to the mortgagee within Australia—one month;

            (b)         in any other case—two months.

        (2)         The Minister may receive moneys on behalf of a mortgagee, or the estate of a mortgagee, who—

            (a)         is dead; or

            (b)         cannot be found; or

            (c)         is incapable of executing a discharge of the mortgage; or

            (d)         has, in the opinion of the Minister, refused to accept payment under the mortgage without sufficient reason,

and any moneys so received shall, for the purposes of this section, and the mortgage, be deemed to have been paid to the mortgagee.

        (3)         Any moneys received by the Minister under subsection (2) of this section shall be held by him upon trust for the mortgagee or other person entitled thereto.

        (4)         Subject to subsection (5) of this section, a discharge of mortgage executed under this section shall have the same effect as a discharge executed by the mortgagee.

        (5)         A discharge of mortgage executed under this section shall not operate as a discharge of the personal covenants of the mortgage.