Postponement of exercise of rights
116 Postponement of exercise of rights
Where a credit provider or mortgagee has given notice under section 107 to a debtor or mortgagor of his intention to institute proceedings in respect of, or to exercise a right under, a regulated contract or a regulated mortgage, the debtor or mortgagor may—
in the case of a right to take possession of goods—at any time before the expiration of the period specified under section 107(4); or
in any other case—at any time before institution of the proceedings or exercise of the right—
negotiate with the credit provider or mortgagee a postponement of institution of the proceedings or of action to exercise the right or, where a right to take possession of goods has been exercised, a postponement of the right to sell or otherwise dispose of or part with possession of the goods.
Where a postponement is negotiated under subsection (1) and a written statement of the conditions of the postponement is given to the debtor or mortgagor, the notice under section 107 shall, if the conditions of the postponement are complied with by the debtor or mortgagor, be deemed not to have been given.
Where a debtor or mortgagor is unable to negotiate a postponement under subsection (1), he may apply to the Director for negotiation of such a postponement.
S. 116(4) amended by No. 52/1998 s. 24(1).
Where an application is made under subsection (3), the Director shall seek the views of the credit provider or mortgagee and, after giving him a reasonable opportunity to be heard and making such other inquiries as the Director thinks fit, determine whether or not to seek to negotiate the postponement to which the application relates and, where he seeks, but is unable to obtain, such a postponement, the Director shall refer the application to the Tribunal.
Subsection (2) applies to and in respect of a postponement negotiated under subsection (4) in the same way as it applies to and in respect of a postponement negotiated under subsection (1).
S. 116(6) amended by No. 52/1998 s. 24(2).
The Tribunal may, where it receives an application referred to it under subsection (4), dismiss the application if it has determined similar issues under section 74 or may order or refuse to order the postponement to which the application relates and, where it orders a postponement, may make such other orders as it thinks fit.
S. 116(7) amended by No. 52/1998 s. 24(1).
Where an order under subsection (6) is in force, the credit provider or mortgagee under the contract or mortgage to which the application relates may apply to the Tribunal for a variation of the order.
S. 116(8) amended by No. 52/1998 s. 24(2).
The Tribunal may, where it receives an application under subsection (7), make such variation of the order to which the application relates as it thinks fit or may refuse to make such an order.
An order in force under this section, and such an order as varied from time to time, has effect according to its tenor.
Where a mortgagor commences negotiations under subsection (1) with a mortgagee after the mortgagee has taken possession of property subject to the mortgage, it is a condition of any postponement negotiated under that subsection or subsection (4) that the mortgagor pay the reasonable costs of the mortgagee incurred in taking possession of the property.
S. 116(11) amended by No. 52/1998 s. 24(1).
Where the Director is unable to obtain a postponement under subsection (4) in relation to a regulated contract or a regulated mortgage, the credit provider or mortgagee shall not institute proceedings, or exercise a right, under the contract or mortgage before the Tribunal has, under subsection (6), dismissed the application for postponement or has ordered, or refused to order, a postponement.
- 20 penalty units.
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