An equitable chargee seeking to enforce a charge need not serve a notice of exercise of power of sale under s 84 of the Property Law Act 1974 when proceeding by way of judicial sale under s 99(2), as the two procedures are distinct. Where a charging clause is ancillary to the main purpose of a deed (such as a deed of guarantee and indemnity), it may not constitute an 'instrument of mortgage' for the purposes of s 83(1), making judicial sale under s 99(2) the appropriate remedy. The court will appoint an independent person to conduct the sale where the proposed appointee has an existing relationship with the applicant.
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