Mortgagees and Receivers Exercising Powers of Sale - An English and Australian Comparative Analysis

摘要

For many years, the English and Australian courts have been at odds in their respective treatment of the obligations imposed on mortgagees and receivers when exercising powers of sale. Indeed, a Full Court of the Federal Court of Australia has recently confirmed that the more onerous test under English law, as enunciated in Cuckmere Brick, does not reflect the current general law in Australia.2 This paper examines the current state of the law in England and Australia and argues that the widely held belief that mortgagees and receivers in Australia are under a lesser duty than their English counterparts is largely misconceived.