Queensland Consolidated Acts

PROPERTY LAW ACT 1974 - SECT 80

80 Inspection and production of instruments

(1) A mortgagor, as long as the mortgagor’s right to redeem subsists, shall because of this Act be entitled from time to time at reasonable times on the mortgagor’s request and at the mortgagor’s own cost and on payment or tender of the mortgagee’s proper costs and expenses in that behalf, by the mortgagor or the mortgagor’s solicitor or conveyancer, to inspect and to make or be supplied with copies or abstracts of, or extracts from, the documents of title or other documents relating to the mortgaged property in the possession, custody or power of the mortgagee.

(2) Subject to any other Act, where in the case of a mortgage of land the mortgagor executes any instrument or other document subsequent to that mortgage in relation to—

(a) any authorised dealing with the land; or

(b) a second or subsequent mortgage;

the mortgagee or other person holding the relevant certificate of title, instrument of lease or other documents of title shall—

(c) upon being requested in writing so to do by the mortgagor or a person entitled to the benefit of the subsequent instrument or document; and

(d) at the cost of the person making that request; and

(e) upon payment or tender to that mortgagee or other person of the person’s proper costs and expenses in that behalf;

produce the document or documents of title for lodgment in the land registry so that the subsequent instrument or document may be registered.

(2A) If the mortgagee or other person refuses or neglects to comply with a request made under subsection (2) , the mortgagor or person entitled to the benefit of the subsequent instrument or document concerned may make application to a judge of the Supreme Court in chambers for an order directed to that mortgagee or other person to show cause why the document or documents of title should not be produced under subsection (2) .

(2B) If the mortgagee or other person neglects or refuses to attend before the judge of the Supreme Court in chambers at the time appointed in the order, the judge may issue a warrant authorising and directing some person to be named in the warrant to apprehend and arrest the person so ordered to show cause and bring the person before a judge of the Supreme Court in chambers for examination.

(2C) Upon the appearance before the judge of any person under subsection (2A) or (2B) and after examining that person upon oath the judge may—

(a) order that person to deliver up the document or documents of title; or

(b) order the registrar or warden to dispense with production of the document or documents of title to enable the subsequent instrument or document to be registered.

(3) A certificate of title, instrument of lease, or other document of title lodged in terms of subsection (2) —

(a) shall, when the dealing or mortgage referred to in that subsection has been registered, be redelivered to the mortgagee or other person authorised by the mortgagee to take delivery of the dealing or mortgage; and

(b) shall not whilst so lodged, be used or available for the purpose of registering any instrument, dealing, or mortgage other than those referred to in subsection (2) .

(3A) Subsection (3) (a) does not apply to a certificate of title or other document of title if, under the Land Title Act 1994 , it must be cancelled and not be redelivered to the mortgagee.

(4) The execution or attempted execution of a second or subsequent mortgage shall not—

(a) constitute a breach of any term, covenant, condition or proviso for re-entry contained in the mortgage; or

(b) occasion any forfeiture or penalty; or

(c) render payable or accelerate the time for payment of any sum or sums which, if such mortgage had not been executed or if the attempt to execute such mortgage had not been made, would not have been payable or would not have been payable at that time.

(5) A mortgagee, whose mortgage is surrendered, discharged or otherwise extinguished, shall not be liable on account of delivering documents of title in the mortgagee’s possession to the person not having the best right to the mortgage, unless the mortgagee has notice of the right or claim of a person having a better right, whether because of a right to require a surrender, discharge or reconveyance or otherwise.

(6) This section shall apply to mortgages made after but not before the commencement of this Act and shall have effect despite any stipulation to the contrary in any mortgage.