Western Australian Current Acts Western Australian Current Acts (1) A mortgagee, where
the mortgage is made by deed, has, by virtue of this Part, the following
powers, to the like extent as if they had been in terms conferred by the
mortgage deed, but not further, namely —
(a) a
power, when the mortgage money has become due, to sell, or to concur with any
other person in selling, the mortgaged property, or any part thereof, either
subject to prior charges or not, and either together or in lots, by public
auction or by private contract, and for a sum payable either in one amount or
by instalments, subject to such conditions respecting title, or evidence of
title, or other matter, as he, the mortgagee, thinks fit, with power to vary
any contract for sale, and to buy in at an auction, or to rescind any contract
for sale, and to re-sell, without being answerable for any loss occasioned
thereby, with power to make such roads, streets and passages and grant such
easements of right of way or drainage over the mortgaged property as the
circumstances may require and he thinks fit; and
(b) a
power, at any time after the date of the mortgage deed, to insure and keep
insured against loss or damage by fire, storm, tempest and earthquake any
building, or any effects or property of an insurable nature, whether affixed
to the freehold or not, being or forming part of the property which or an
estate or interest wherein is mortgaged, and the premiums paid for any such
insurance is a charge on the mortgaged property or estate or interest, in
addition to the mortgage money, and with the same priority, and with interest
at the same rate, as the mortgage money; and
(c)
where the mortgage is executed after the coming into operation of this Act a
power, when the mortgage money has become due, to appoint a receiver of the
income of the mortgaged property, or any part thereof; or, if the mortgaged
property consists of an interest in income, or of a rentcharge or an annual or
other periodical sum, a receiver of that property or any part thereof.
(2) Where the mortgage
is executed after the coming into operation of this Act, the power of sale
referred to in subsection (1), includes the following powers as incident
thereto, namely —
(a) a
power to impose or reserve or make binding, as far as the law permits, by
covenant, condition or otherwise, on the unsold part of the mortgaged property
or any part thereof, or on the purchaser and any property sold, any
restriction or reservation with respect to building on or other user of land,
or with respect to mines and minerals, or for the purpose of the more
beneficial working thereof, or with respect to any other thing;
(b) a
power to sell the mortgaged property, or any part thereof, or all or any mines
and minerals apart from the surface —
(i)
with or without a grant or reservation of rights of way,
rights of water, easements, rights and privileges for or connected with
building or other purposes in relation to the property remaining in mortgage
or any part thereof or to any property sold; and
(ii)
with or without an exception or reservation of all or any
of the mines and minerals in or under the mortgaged property, and with or
without a grant or reservation of powers of working, wayleaves, or rights of
way, rights of water and drainage and other powers, easements, rights and
privileges for or connected with mining purposes in relation to the property
remaining unsold or any part thereof, or to any property sold; and
(iii)
with or without covenants by the purchaser to expend
money on the land sold.
(3) The provisions of
this Part relating to the foregoing powers, comprised either in this section,
or in any other section regulating the exercise of those powers, may be varied
or extended by the mortgage deed, and, as so varied or extended, shall, as far
as may be, operate in the like manner and with all the like incidents, effects
and consequences as if such variations or extensions were contained in this
Part.
(4) This section
applies only if and as far as a contrary intention is not expressed in the
mortgage deed, and has effect subject to the terms of the mortgage deed and to
the provisions thereof.