Queensland Consolidated Acts
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PROPERTY LAW ACT 1974 - SECT 95
Relief against provision for acceleration of payment
95 Relief against provision for acceleration of payment
(1) Where default has taken place—
(a) in payment of any instalment due of
principal or interest under a mortgage; or
(b) in the observance of any
covenant or obligation in a mortgage; and under the terms of the mortgage an
accelerated sum may or has, because of such default or of the exercise upon
such default of any option or election conferred by the mortgage, become due
and payable, the mortgagor shall be entitled to relief under this section.
(2) A mortgagor who, at any time before sale by the mortgagee or before the
commencement of proceedings to enforce the rights of the mortgagee—
performs the covenant or obligation in respect of which the default has taken
(b) tenders to the mortgagee, who accepts payment of, the amount
of the instalment in respect of which the default has taken place and any
reasonable expenses incurred by the mortgagee; is relieved from the
consequences of such default.
(3) The mortgagor, in any proceedings brought
to enforce the rights of the mortgagee or brought by the mortgagor, may—
upon undertaking to the court to perform any such covenant or obligation; and
(b) upon tender or payment into court of such instalment; apply to the court
for relief from the consequences of such default, and the court may grant or
refuse relief (whether by staying proceedings brought by the mortgagee or
otherwise) as the court, having regard to the conduct of the parties and to
all other circumstances, thinks fit, and in the case of relief may grant it on
such terms (if any) as to payment of any reasonable expenses of the mortgagee
and as to the costs or otherwise as the court in the circumstances thinks fit.
(4) Where in granting relief under subsection (3) the court stays proceedings
for the enforcement of the rights of the mortgagee, the court may on
application remove the stay if default takes place in carrying out the
undertaking referred to in subsection (3) .
(5) This section applies to
mortgages of any property whether made before or after the commencement of
this Act, but only to a default occurring after the commencement of this Act,
and shall have effect despite any stipulation to the contrary.
(6) In this
"accelerated sum" means the whole or part of principal or interest secured by
the mortgage other than the instalment referred to in subsection (1) (a) .
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