Assignment of mortgagor
102 Assignment of mortgagor
A mortgagor shall not, except as provided in this section, assign or dispose of property subject to a mortgage without the consent of the mortgagee.
- 10 penalty units.
The consent of the mortgagee to an assignment or disposal of property referred to in subsection (1) shall not be unreasonably withheld and, except as provided in subsection (3), no payment or consideration shall be required by the mortgagee for his consent.
As a condition of granting consent to an assignment or disposal of property subject to a mortgage, the mortgagee may require all breaches (if any) of the regulated contract or contracts to which the mortgage relates and of the mortgage to be remedied and may require the mortgagor and the assignee—
to execute and deliver to the mortgagee an agreement relating to the assignment or disposal in a form approved by the mortgagee under which, without prejudicing or affecting the liability of the mortgagor, the assignee agrees with the mortgagee—
to be personally liable to pay the amounts due or that become due under the mortgage; and
to perform and observe all other requirements and conditions of the mortgage; and
to pay the reasonable costs (if any) incurred by the mortgagee in respect of—
stamp duty; and
S. 102(3)(b)(ii) amended by No. 84/1997 s. 16(1).
fees payable to a duly qualified legal practitioner (not being the mortgagee or an employee of the mortgagee) authorized to prepare documents—
in respect of or relating to the assignment agreement.
S. 102(4) amended by No. 52/1998 s. 24(1).
Where, in the opinion of a debtor or mortgagor, a mortgagee has unreasonably withheld consent to an assignment or disposal or property subject to a mortgage, the debtor or mortgagor may refer the matter to the Director who, if he is of the same opinion and has sought but not obtained that consent, may apply to the Tribunal for a determination that the consent has been unreasonably withheld.
S. 102(5) amended by No. 52/1998 s. 24(1).
Where, on an application under subsection (4), the Tribunal determines that consent to an assignment or disposal has been unreasonably withheld, the assignment or disposal may be effected without that consent.
Where a mortgage relates to goods for the time being forming the whole or part of the trading stock of a business carried on by the mortgagor, this section does not apply to or in respect of an assignment or disposal of any such goods.
This section does not apply to or in respect of an assignment that occurs by operation of law.
An agreement to assign goods the subject of a mortgage does not operate to create a new mortgage relating to the goods.
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