Queensland Consolidated Acts

PROPERTY LAW ACT 1974 - SECT 95

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—

(a) performs the covenant or obligation in respect of which the default has taken place; and

(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—

(a) 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 section—

"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) .