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MTS07

Mortgagee sales update

NZ $55.00
incl GST
Struan McOmish Justin Toebes
Struan McOmish
Partner
Duncan Cotterill
Auckland
Justin Toebes
Partner
Buddle Findlay
Wellington

Published: 7 November, 2007
Pages: 136

Introduction

Low points in the economic cycle result in the largest volumes of New Zealand Law Reports; and an increase in the number of cases concerning the rights and remedies of mortgagees and of mortgagors.

We have already started to see signs of increased level of creditor recovery activity; including mortgagee sales activity, especially in what was promoted as the Auckland investment apartment market.

The original Mortgagee Sales Seminar was conducted in 1981 by Steven Dukeson and Bruce Stewart QC and there was an update by Bruce Stewart QC and Denis Sheard in 2002. The previous mortgagee sale seminar booklets remain valuable sources of information and continue to be relevant in many respects. The present seminar is by way of an update where there have been developments; but in the main reflects the changes made in the Property Law Act 2007 (“PLA”) which is to come into force on 1 January 2008.

With regard to mortgages, PLA:

  • Makes it clear that a “mortgage” is a charge on either or both land and goods, and makes equal provision for the rights and restrictions of enforcement of security rights over both land on the one hand and goods on the other;
  • There is an express upgrade to the rights of the holder of an equitable mortgage over both land and goods with an express right to apply to the court for directions to sale and execution of the transfer and exercise of power of sale;
  • Does not attempt to write a new code on the law of mortgages, but restates the default notice provisions and the implied terms and conditions in the mortgage in plain language; and brings into the statute detailed provisions in respect of the rights and obligations of the mortgagee in possession.

The PLA expressly sets out what has been the position under the Property Law Act 1952 – that a “mortgage” (and thus a mortgagee sale) is not simply a mortgage (or mortgagee sale) of land, but also of property of all kinds – including goods. Despite this, this seminar booklet concentrates on mortgagee sales of land and we hope that in respect of the mortgagee sale of goods, there will still be useful material, because the provisions relating to land on the one hand, and goods on the other are, in many cases, similar. We do not, however, deal (unless by way of a side reference) to secured parties’ enforcement rights under the Personal Property and Securities Act.

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