Queensland Consolidated Acts
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PROPERTY LAW ACT 1974 - SECT 85
Duty of mortgagee or receiver as to sale price
85 Duty of mortgagee or receiver as to sale price
(1) It is the duty of a mortgagee, including as attorney for the mortgagor, or
a receiver acting under a power delegated to the receiver by a mortgagee, in
the exercise of a power of sale conferred by the instrument of mortgage or by
this or any other Act, to take reasonable care to ensure that the property is
sold at the market value.
(1A) Also, if the mortgage is a
prescribed mortgage, the duty imposed by subsection (1) includes that a
mortgagee or receiver must, unless the mortgagee or receiver has a reasonable
(a) adequately advertise the sale; and
(b) obtain reliable evidence
of the property’s value; and
(c) maintain the property, including by
undertaking any reasonable repairs; and
(d) sell the property by auction,
unless it is appropriate to sell it in another way; and
(e) do anything else
prescribed under a regulation.
(a) if the
contravention of duty relates only to paragraph (e) —20 penalty units; or
(b) otherwise—200 penalty units.
(2) Within 28 days from completion of
the sale, the mortgagee shall give to the mortgagor notice in the approved
(3) The title of the purchaser is not impeachable on the ground that
the mortgagee or receiver has committed a breach of any duty imposed by this
section, but a person damnified by the breach of duty has a remedy in damages
against the mortgagee exercising the power of sale.
(4) A mortgagee who,
without reasonable excuse, fails to comply with subsection (2) commits an
Maximum penalty—2 penalty units.
agreement or stipulation is void to the extent that it purports to relieve, or
might have the effect of relieving, a mortgagee or receiver from the duty
imposed by this section.
(6) Nothing in this section affects the operation of
any rule of law relating to the duty of the mortgagee to account to the
(7) Nothing in sections 83 (1) (a) , 89 (3) and 92 (2) affects the
duty imposed by this section.
(8) Nothing in this section affects the
operation of a law of the Commonwealth, including, for example, the
Corporations Act, section 420A .
(9) This section applies to mortgages
whether made before or after the commencement of this Act but only in relation
to the exercise of a power of sale if—
(a) the exercise of the power arises
upon or in consequence of a default, mentioned in section 84 (1) , that
happens after the commencement of this Act; or
(b) the power is being
exercised under section 84A (4) .
(10) In this section—
"prescribed mortgage" means a mortgage of a kind prescribed under a
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