This Act may be cited as the Mortgagors Relief Act, 1931.

This Act shall be deemed to have come into force on the eighteenth day of March, nineteen hundred and thirty-one, and shall continue in force until a date to be appointed for the ceasing of the operation thereof by Proclamation, or until the thirty-first day of December, nineteen hundred and thirty-two, whichever date is the earlier.

On the date so appointed or fixed under the last preceding subsection for the ceasing of the operation thereof this Act shall be deemed to have been repealed.

Notwithstanding such repeal, all proceedings pending under this Act at the date of such repeal may be continued and completed as if this Act were still in force, and all orders under this Act theretofore made and then subsisting, or thereafter made in any such pending proceedings, shall enure as if this Act were still in force, and all proceedings may be taken and all jurisdiction exercised with respect to such orders accordingly:

Provided that after such repeal no such order shall be extended under subsection two of section eight hereof.

In this Act, unless inconsistent with the context,—

This Act shall apply to all mortgages except—

It shall not be lawful for a mortgagee under a mortgage to which this Act applies or any other person—

otherwise than subject to and in accordance with the provisions of this Act.

For the purposes of this Act the exercise of a power of sale shall be deemed to be completed when the vendor becomes bound by an agreement or contract of sale, and the onus of proving that any property has been abandoned by a mortgagor shall rest upon the mortgagee.

A mortgagee before proceeding to do any such act or exercise any such power as is defined in the last preceding section shall give to the mortgagor notice in writing of his intention to do such act or exercise such power.

Such notice shall contain an address for service, and shall be signed by the mortgagee or by some duly authorized attorney or agent of the mortgagee, and shall be deemed to be duly given if delivered to the mortgagor personally, or if posted by registered letter addressed to the mortgagor at his last known place of abode in New Zealand. A notice so posted shall be deemed to have been given at the time when the registered letter would in the ordinary course be delivered.

If the mortgagor does not within one calendar month after the giving of any such notice of intention to exercise any power or issue any process of execution in respect of land, or to file a bankruptcy petition, or within seven days after the giving of any such notice of intention to exercise any power or issue any process of execution in respect of chattels, make an application to the Supreme Court for relief as hereinafter provided, and serve a copy of such application on the mortgagee, the mortgagee may on the expiration of the said calendar month or seven days, as the case may be, proceed to do such act or exercise such power as aforesaid.

If the mortgagor makes such application and serves a copy thereof in accordance with the last preceding subsection, the mortgagee shall not do such act or exercise such power until such application has been disposed of by the Supreme Court, or otherwise than subject to and in accordance with any order made by the Supreme Court as hereinafter provided.

A mortgagor shall in making such application to the Supreme Court for relief state therein the date on which such notice as aforesaid was given by the mortgagee, and shall also set forth therein the specific grounds for such relief.

In determining whether relief against the doing of any act or the exercise of any power as aforesaid by the mortgagee shall be granted to the mortgagor, the Supreme Court may take into consideration—

If, having regard to the considerations mentioned in the last preceding section and to all other relevant considerations, the Court is of opinion that relief should be granted to the mortgagor, it may, in its discretion, subject to such terms and conditions as it thinks fit to impose, order that the mortgagee shall not, before a date specified in such order (being not later than twelve months after the date of the mortgagor’s application for relief), do any act or exercise any power mentioned in section four hereof, save by leave of the Supreme Court upon application by the mortgagee in that behalf, on account of a breach by the mortgagor of any such terms and conditions as aforesaid.

At any time before the date specified as aforesaid the Supreme Court may, on the application of the mortgagor, extend the order to a date not later than twelve months after such specified date. In granting any such extension, the Court may impose such terms and conditions, and make such variations in the terms and conditions of the original order, as it thinks fit.

Where, with respect to any mortgage to which this Act applies, the exercise of any power or the doing of any act defined in paragraph (a) or in paragraph (b) of section four hereof has been completed (whenever commenced) after the commencement of this Act but before the passing thereof, the mortgagor may apply to the Supreme Court for an order setting aside the exercise of such power or the doing of such act, reinstating all parties as nearly as may be in their former positions, and granting relief to the mortgagor as provided in section eight hereof as if the exercise of such power or the doing of such act had not been completed.

If the Court, having regard to the considerations mentioned in section seven hereof and to all other relevant considerations, is of opinion that such relief should be granted to the mortgagor, it may, in its discretion, subject to such terms and conditions as it thinks fit to impose, and notwithstanding that rights may have been acquired by any person other than the mortgagee, make any such order as aforesaid, or any particular order which may be required to enable such relief to be granted:

Provided that no order shall be made under this section in any case where the property in respect of which such power has been exercised or such act has been done has been sold at the time of or after the exercise of such power or the doing of such act to a person other than the mortgagee and such sale has been completed by the payment of the purchase-money and the delivery of the property and the documents of title (if any) before the passing of this Act.

The provisions of subsection two of section eight hereof shall apply with respect to any order made under this section in so far as such order grants relief as provided in the said section eight.

No application to the Supreme Court under this section shall be heard by the Court unless the application is made within one month after the passing of this Act.

Subject to the provisions of any order that may be made under this section, the exercise of any such power or the doing of any such act as aforesaid which has been completed before the passing of this Act shall not by reason of anything in this Act be deemed to have been unlawfully so completed.

Any application to the Supreme Court under this Act may be made by motion, supported by affidavit, with notice to such persons as the Court considers entitled thereto. Every such application shall be made and heard in the Supreme Court office nearest to the place where the land or other property to which the application relates is situated:

Provided that during the absence of a Judge, or during the inability of a Judge to act from any cause whatever, the Registrar of the Court shall have authority and jurisdiction to order that any such application be heard at some other place.

The mortgagor making the application shall use due diligence in effecting the required services, and if he fails so to do the mortgagee may move to dismiss the application, and the Court may on that ground dismiss the application accordingly.

Any application under this Act may be made to and disposed of by a Judge in Chambers.

There shall be no appeal from any order under this Act.

The Governor-General may from time to time, by Order in Council gazetted, apply the provisions of this Act, with the necessary modifications, to leases of land containing an optional or compulsory purchasing clause granted before the commencement of this Act, or to any such lease or leases or to any class or classes thereof.

For the purposes of this Act, every such lease to which this Act applies shall be dealt with in all respects as if the lessee had already notified his exercise of an option to purchase under an optional purchasing clause, and as if the lessor were mortgagee and the lessee were mortgagor of the land, and as if the rent reserved by the lease were interest and the agreed purchase-money were principal moneys secured. The term of the lease shall, if necessary, be extended for the purpose of giving effect to this provision.

In order that full effect may be given to the intent of this Act, the Supreme Court shall, in every matter arising in respect of a mortgage, or of a lease containing a purchasing clause, to which this Act applies, have full power and jurisdiction to deal with and determine such matter in such manner, and to make such order, not inconsistent with the provisions of this Act, as it deems just and equitable under the circumstances of the case, notwithstanding that express provision in respect of such matter is not contained herein.

All the provisions of this Act shall apply to the Crown.

Where the principal moneys remaining due and unpaid under the provisions of any mortgage do not exceed two thousand pounds, a Magistrate shall have in respect of such mortgage, and the doing of any act or the exercise of any power by the mortgagee, the same jurisdiction, powers, and discretions as are by this Act conferred upon the Supreme Court.

In the case of any such mortgage, unless inconsistent with the context, all the provisions of this Act shall apply and be read and interpreted as if the words “a Magistrate” were substituted for the words “the Supreme Court”, and the words “the Magistrate” for the words “the Court”.

No appeal shall he to the Supreme Court from an order of a Magistrate under this Act.

The Governor-General may from time to time, by Order in Council, make regulations for giving full effect to the provisions of this Act and for the due administration thereof.