The Mysterious S 74(5)

Abstract

Section 74(5) of the Transfer of Land Act 1958 (Vic) was inserted into the Act in 2014. It provides that ‘[a] registered mortgage does not operate as a mortgage or charge on the land if for any reason the mortgage is, or is found to be, void or not enforceable at law or in equity and the mortgagee must discharge the mortgage as soon as practicable.’ This article identifies three possible purposes and effects of this enigmatic provision and critically discusses the implications of each one. It ultimately concludes that legislative reform is necessary to avoid the dangerous level of ambiguity inherent in the provision, but offers a view as to which interpretation should be preferred in the event that the courts are called upon to interpret the provision in the meantime.