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The Law of Real Property Mortgages: 2nd edition
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The Law of Real Property Mortgages: 2nd edition

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Overview
Published 4 Oct 2013 (Federation Press)
ISBN: 9781862879393. Hard Cover, 528 pages.
Description

By W D Duncan and W M Dixon

This book examines the principles and practice of real estate mortgages in an easily accessible text referenced to all the Australian States. It specifically deals with the major theoretical and practical aspects of the land mortgage, including vitiating factors in formation, mortgagees’ powers and duties and mortgagors’ rights – both statutory and other – as well as assignment, insurance and discharge.

It focuses exclusively on real estate mortgages and provides a thorough account of the law through analysis of the plethora of court decisions and statutory provisions in this area. Duncan and Dixon analyse the substance of the mortgage transaction from creation through to rights of enforcement.

In its detailed consideration of the rights and obligations of mortgagors and mortgagees, it covers topics such as priorities and tacking, insurance, variation and assignment, rights of discharge, entry into possession, foreclosure and power of sale. In addition, the book contains a separate chapter on factors that may affect the validity and enforcement of a mortgage, together with separate consideration of a mortgagee’s right to enforce a guarantee provided on behalf of a mortgagor, and the rights and liabilities associated with a receivership regime initiated by a mortgagee.

Key changes in this edition concern:

  • the effects of the Personal Property Securities Act 2009 (Cth) on priorities between mortgagees and security interest holders with respect to fixtures;
  • the impact of the National Consumer Credit Protection Act 2009 (Cth) and the National Credit Code, and the new ASIC Act provisions relating to unfair contracts;
  • the numerous recent decisions on forged mortgages;
  • statutory changes in New South Wales and Queensland with respect to the execution of mortgages and mortgagees’ obligations when exercising power of sale;
  • additional material on “all monies” clauses.

CONTENTS

Part I - Introduction

The Torrens System Mortgage

Part II - Formation of a Torrens Mortgage

Execution of a Mortgage
Factors Vitiating Validity or Enforcement of Mortgage

Part III - Rights and Obligations of Mortgagor and Mortgagee

Rights of Mortgagor 
Priorities and Tacking 
Insurance 
Variation and Assignment of Mortgages
Discharge of Mortgage

Part IV - Mortgagee’s Remedies on Mortgagor’s Default

Entry into Possession and Foreclosure 
Exercise of Power of Sale 
Receivership

Part V - Concurrent Remedy on Mortgagor’s Default

Guarantees

Table of Cases/ Table of Statutes/ Index


REVIEWS

Reviews of previous editions:

...there is a good deal of useful material in this work for those who have to deal with Torrens system mortgages from day-to-day.

The Hon Justice P W Young AO, (2008) 82 ALJ 417

The authors of The Law of Real Property Mortgages are to be commended for producing this comprehensive guide to mortgages under the Torrens System in Australia. The work is scholarly, accessible and practical - traits not all law books manage to attain. It is sure to be of great use to lenders and borrowers, lawyers, conveyancers and all those involved in finance and real estate transactions in Australia.

Australian Business Law REview, (2008) 36 ABLR 159

This is one of the few works available on the Australian market which deals exclusively with real estate mortgages given over Torrens title land in Australia.
The work represents a welcome addition to the body of Australian law on the topic.

Anthony Lo Surdo, Barrister, Australian Banking and Finance Law Bulletin, Vol 24 No 4, September 2008

Duncan and Dixon’s The Law of Real Property Mortgages is timely, and highlights the pivotal legal elements of mortgages
The publication employs a sensible and practical approach to the law of real property relative to mortgages, and acknowledges the interests of all members of the legal profession. For practitioners, it clearly and succinctly states the law as it currently is or appears to be. For law historians and legal academics, the facts and laws are accompanied by a discussion of how and why the law has developed to this point, with references to important cases from various common law jurisdictions which provided highlights to or were turning points in the development of the law.
The book is extremely user-friendly. … The authors’ analysis demonstrates the complexity of the law of mortgages, yet they successfully manage to explain the law, minus the complexities via their use of simple and understandable English and a minimum of legal jargon.
The publication goes beyond the basics; the authors recognise legislative and common law defects and gaps, discussing difficulties caused by varying judicial interpretations and then providing solid practical advice or suggestions to overcome such problems, as well as insight into the nature and possibilities of future legal developments, based on current trends.
… a welcome addition to the circle of great legal academic works.

The Queensland Lawyer, Vol 28 No 5, April 2008

This book provides value in offering a presentation of the law relating to real property mortgages in Australia, organised in a systematic and accessible manner. Relationships between legal principles are clearly stated. There is a logical progression in the discussion through topics. Practitioners will appreciate the succinct statements of the law, together with supporting references.

Proctor (Qld Law Society), February 2008

This book is excellent for both undergraduate and postgraduate property courses that deal with the law of mortgages. It is approachable and readable - unlike some of its competitors, which are too dense for student use.

Professor Peter Butt, University of Sydney, Australia, July 2007

[The authors] have done an excellent job producing a book that will be readily understandable by both students and lawyers. …The Law of Real Property Mortgages will no doubt be appreciated as a standard text in this area…

Australian Law Librarian, Vol 15 No 4, 2007

[A] welcome contribution to this area of law

Law Institute Journal (Victoria), October 2007

 
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