Land And Conveyancing Law Reform Act 2009

Application of proceeds of sale.

107.— (1) Money received by the mortgagee which arises from the sale of mortgaged property shall be applied in the following order—

[CA 1881, s. 21(3)]

(a) in discharge of prior incumbrances, if any, to which the sale was not made subject or payment into court of a sum to meet any such prior incumbrances,

(b) in payment of all charges, costs and expenses properly incurred by the mortgagee as incident to the sale or any attempted sale or otherwise,

(c) in discharge of the mortgage debt, interest and costs, and other money, if any, due under the mortgage.

(2) Any residue of the money so received shall be held on trust by the mortgagee to be paid to the person who would, but for the sale, be the mortgagee secured on the property sold next in priority after the mortgagee selling, or is otherwise authorised to give receipts for the money so received, or, if there is no such person, the mortgagor.

(3) Where, in accordance with subsection (2), the mortgagee gives effect to the trust of the residue by paying it to a subsequent mortgagee, the latter shall apply it in accordance with subsections (1)(c) and (2) and similar obligations attach to each subsequent mortgagee who receives any of the residue.

(4) Any mortgagee who so gives effect to the trust is discharged from any further obligation with respect to the residue.

(5) For the purposes of the application of subsection (1)(b) to money received under section 106 (3), charges, costs and expenses payable include those properly incurred in recovering and receiving the money or securities, and in conversion of securities into money, instead of those incident to the sale.