Credit Act 1984

A mortgagee exercises a power of sale in accordance with this subsection if he exercises it—

as soon after he became entitled to exercise it as is reasonable and practicable in the circumstances; and

so as to receive the best price reasonably obtainable.

Where a mortgage relates to one or more regulated contracts and the mortgagee sells goods subject to the mortgage otherwise than by offering the goods for sale as provided by section 112(2), the mortgagee is liable to the mortgagor—

where the goods are sold pursuant to section 106(4) or by the mortgagee exercising a power of sale in accordance with subsection (1)—for the amount received pursuant to the sale; or

where the goods are not sold as referred to in paragraph (a)—for the amount that, in the opinion of the court, would have been received if the goods had been sold by the mortgagee exercising a power of sale in accordance with subsection (1)—

Where a mortgagee offers goods for sale as provided by section 112(2), the mortgagee is liable to the mortgagor—

where the offer is accepted—for the amount for which the goods are sold;

where the offer is not accepted and the goods are sold by the mortgagee exercising a power of sale in accordance with subsection (1)—

for the amount for which the goods would have been sold if the offer had been accepted; or

for the amount received from the sale—

where the offer is not accepted and the goods are sold by the mortgagee exercising a power of sale otherwise than in accordance with subsection (1)—

for the amount for which the goods should have been sold if the offer had been accepted; or

for the amount for which, in the opinion of the court, the goods would have been sold if the power of sale had been exercised in accordance with subsection (1)—

For the purposes of subsections (2) and (3), the amounts referred to in this subsection are—

where the goods sold were subject to a prior mortgage—the amount payable in discharge of the prior mortgage;

where the mortgage secures the payment of a debt or other pecuniary obligation arising otherwise than under a regulated contract to which the mortgage relates—the amount payable in respect of that debt or obligation;

an amount equal to—

where the power of sale was exercised in accordance with subsection (1)—the net balance, or the sum of the net balances, within the meaning of section 103 due to the credit provider in respect of the regulated contract or contracts to which the mortgage related at the time of receipt of the proceeds of the sale; or

where the power of sale was not exercised in accordance with subsection (1)—the net balance, or the sum of the net balances within the meaning of section 103 as was or were due at the time the mortgagee would reasonably have expected to receive the proceeds of sale if the power had been exercised in accordance with subsection (1);

the reasonable expenses of the mortgagee incurred in selling the goods; and

the amounts payable in successive discharge of any subsequent mortgages to which the goods were subject and of which the vendor mortgagee had notice.

The onus of proving that a power of sale was exercised in accordance with subsection (1) is on the mortgagee who exercised it.

Proceedings for the recovery of an amount due to a person in respect of the exercise of a power of sale by a mortgagee by reason of the operation of this section shall not be instituted after the expiration of three years after the exercise of the power.

Where the mortgagee exercises a power of sale over goods subject to a mortgage, a court may, on the application of—

the mortgagor;

the mortgagee under any prior mortgage to which the goods are subject; or

the mortgagee under any subsequent mortgage to which the goods are subject and of which the vendor mortgagee has notice—