South Australian Current Acts South Australian Current Acts23A—Deferred payment on sale of land
(1) A trustee for sale
may sell land on terms of deferred payment or otherwise.
(2) The terms of
deferred payment may provide either for the purchase money being paid by
instalments, or for the unpaid purchase money being secured by mortgage.
(3) If the purchase
money is to be paid by instalments, the terms upon which the land is sold
shall, in addition to such other provisions as the trustee deems proper,
include provisions for giving effect to the following:
(a) That
part of the purchase money shall be paid on the execution of the contract of
sale;
(b) That
the balance of the purchase money shall be payable in instalments, the first
not later than three years from the date of the contract of sale and the
others at intervals of not more than a year being from the date on which the
first instalment is payable, and shall bear interest payable half-yearly or
oftener on the amount from time to time unpaid;
(c) That
the whole of the purchase money and interest shall be payable within a period
not exceeding ten years from the date of the contract of sale;
(d) That
if any instalment or interest or part thereof is in arrear and unpaid for six
months or for such less period as may be specified, the whole of the purchase
money and interest thereon calculated up to the day of payment shall become
due and payable;
(e) That
the purchaser will maintain and protect the land and all buildings (if any)
thereon and keep all such buildings insured against loss or damage by fire to
the full insurable value thereof.
(4) If the unpaid
purchase money is to be secured by mortgage, the terms upon which the land is
sold shall, in addition to such other provisions as the trustee deems proper,
include provisions for giving effect to the following:
(a) That
part of the purchase money shall be paid on the execution of the contract of
sale;
(b) That
the unpaid purchase money shall be secured by a registered mortgage of the
land sold, with or without the security of any other property, and shall bear
interest payable half-yearly or oftener on the amount from time to time
unpaid;
(c) That
the mortgage shall contain covenants by the mortgagor to pay the principal
money secured and the interest thereon, to maintain and protect the property,
and to keep all buildings, if any, thereon insured against loss or damage by
fire to the full insurable value thereof.
(5) Whether the
purchase money is to be paid by instalments or the unpaid purchase money is to
be secured by mortgage the trustee shall not be deemed to be lending money
within the meaning of section 10 of this Act so as to be bound to act in
accordance with the provisions of that section, and shall not be liable for
any loss which may be incurred by reason only of the fact that the part of the
purchase money to be paid by instalments or secured by mortgage is
insufficiently secured.
(6) The part of the
purchase money to be paid on the execution of the contract of sale shall not
be less than the sum which a person acting with prudence would, if the land
were his own, have accepted in the circumstances in order to sell the land to
the best advantage.
(7) The trustee shall
not be bound to require payment of any greater part of the purchase money
before letting the purchaser into possession, or before conveying the land and
taking a mortgage back, than a person acting with prudence would, if the land
were his own, have considered sufficient: Provided that the trustee shall not
convey the land and take a mortgage back until at least one-tenth of the
purchase money has been paid.
(8) Notwithstanding
that the purchase money is to be paid by instalments, the trustee may at any
time after one-tenth of the purchase money has been paid convey the land and
take a mortgage back in any case where a person acting with prudence would, if
the land were his own, have been willing in the circumstances to do so; and in
any such case the mortgage shall be in accordance with paragraphs (b) and
(c) of subsection (4) of this section, and the provisions of
subsection (5) of this section shall apply to it.
(9) Any mortgage under
this section may be for any period not exceeding ten years from the date of
the contract of sale.
(10) The trustee may,
on such terms, if any, as he deems proper by writing waive or vary any right
arising from failure to comply with any term of the contract of sale or of any
mortgage under this section within the proper time, and may exercise in
relation to any such mortgage or agreement any of the powers conferred by
sections 13A, 13B, and 13C of this Act.
(11) Where the sum
payable under or secured by any such agreement or mortgage (being an agreement
or mortgage of or in respect of real property whether freehold or leasehold)
does not exceed two-thirds of the whole purchase price, or has been reduced by
payment to an amount not exceeding two-thirds of the whole purchase price,
that agreement or mortgage, as the case may be, may be held and dealt with by
the trustee as though it were an investment authorised by law.
(12) Where the sale is
made under the order of the Supreme Court, the provisions of this section
shall apply, unless the Supreme Court, or, on any reference to the Master, the
Master shall otherwise direct.
(13) This section
applies only if and as far as a contrary intention is not expressed in the
instrument, if any, creating the trust, and shall have effect subject to the
terms of that instrument and to the provisions therein contained.
(14) This section
applies to trusts created either before or after the commencement of the
Trustee Act Amendment Act 1941 .