Queensland Consolidated Acts

PROPERTY LAW ACT 1974 - SECT 94

94 Obligation to transfer instead of discharging mortgage

(1) Where a mortgagor is entitled to redeem the mortgagor shall because of this Act, have power to require the mortgagee, instead of discharging, and on the terms on which the mortgagee would be bound to discharge, to transfer the mortgage to any third person as the mortgagor directs, and the mortgagee shall because of this Act be bound to transfer accordingly.

(2) The right of the mortgagor conferred by this section shall belong to and be capable of being enforced by each encumbrancee, or by the mortgagor, despite any intermediate encumbrance, but a requisition of an encumbrancee shall prevail over a requisition of the mortgagor, and as between encumbrancees a requisition of a prior encumbrancee shall prevail over a requisition of a subsequent encumbrancee.

(3) This section shall not apply—

(a) in the case of a mortgagee being or having been in possession; or

(b) in the case of a mortgage which contains a valid and enforceable covenant or condition in favour of the mortgagee in restraint of the trade or business of the mortgagor or any other collateral benefit or advantage in favour of the mortgagee.

(4) This section applies to mortgages whether made before or after the commencement of this Act, and shall have effect despite any stipulation to the contrary.