In this Appendix we reproduce the principal legislative provisions relating to registers of mortgages, securities and investments in Victoria.
Mortgage Register and Nominee Company Rules 1977
1. These rules do not apply to any Mortgage of which the Solicitor is the beneficial owner or to any Mortgage held by any Solicitor or a Corporation in his or its capacity as the trustee of any Will or settlement or to any Mortgage which when executed or transferred will be so held.
2. For the purposes of these Rules:-
“Contributor” means any person who lends or proposes to lend moneys on the security of a Contributory Mortgage arranged by a Solicitor.
"Contributory Mortgage" means a Mortgage to secure moneys lent by two or more persons. Two or more persons lending on joint account shall for the purpose of these Rules be regarded as a single person.
“Mortgage” means a mortgage, charge, security, bill of sale, loan contract or any document purporting to secure or regulate the repayment of moneys.
“Lender” and “Borrower” mean as the context requires the person to whom and the person by whom any moneys are payable or repayable pursuant to any Mortgage.
“Mortgage Register” means a register maintained for the purpose of these Rules containing the particulars specified in Schedule 2.
"Nominee" means a Solicitor or a Solicitor’s Nominee Company in whose name a Mortgage or Contributory Mortgage is held.
"Person" includes a corporation.
“Solicitor” has the same meaning as in Rule 2 of the Solicitors(Audit and Practising Certificates) Rules.
“Solicitor’s Nominee Company” means a corporation each of the members and each of the directors of which is a solicitor or other person first approved by the Council of the Law Institute.
3. Where a Solicitor’s Nominee Company holds any property as a nominee or trustee for another person a Solicitor who is a member or director of that Company shall not:-
4. (1) Every Solicitor who:-
(a) prepares a Mortgage, the principal or interest of which is to be collected by that Solicitor; or
(b) is authorised to collect the principal or interest under any Mortgage, except on any discharge or partial discharge of the Mortgage; or
(c) takes a transfer of Mortgage to himself or prepares a transfer thereof to a Solicitor’s Nominee Company of which he is a member or director;
shall keep a Mortgage Register and shall enter in that Mortgage Register the particulars specified in Schedule 2 within one month after:-
whichever date last occurs.
(2) For every other Mortgage held in the name of a Nominee the same particulars as are required to be entered in such Register by sub-rule (1) of this Rule shall be entered in the Mortgage Register of:-
(a) the solicitor who is such Nominee; or
(b) the solicitor who is the director or one of the directors of the Solicitor’s Nominee Company which is such Nominee,
as the case requires.
(3) Every Solicitor who prepares a variation of any Mortgage to which sub-rule (1) or sub-rule (2) of this Rule applies shall, within one month thereafter, enter in the Mortgage Register such of the particulars specified in Schedule 2 as may in the circumstances be necessary, in consequence of such variation to maintain the accuracy of the Mortgage Register.
10. (1) In respect of every Mortgage to which Rule 4 applies the Solicitor shall within one month after the date of
(a) the first advance under the Mortgage; or
(b) the transfer of the Mortgage; or
(c) being authorised to collect the principal and interest except on any discharge or partial discharge of the Mortgage; or
(d) any variation of such Mortgage
prepare and execute a Summary of Mortgage containing the particulars specified in Schedule 2 and in the case of a Nominee Mortgage shall prepare and execute a Declaration of Trust. The original Summary of Mortgage and Declaration of Trust shall be retained by the Solicitor and within the said period of one month copies shall be forwarded to the Lender and in the case of a Contributory Mortgage to each Contributor.
(2) Where there is any change of Contributors the Solicitor shall within one month after that change prepare, execute and supply to any new Contributors a Summary of Mortgage containing the particulars specified in Schedule 2 and in the case of a Nominee Mortgage prepare and execute a Declaration of Trust The original Summary of Mortgage and Declaration of Trust required by this sub- rule shall be retained by the Solicitor and within the said period of one month copies shall be forwarded to each new Contributor.
Solicitors (Audit and Practising Certificates) Rules 1965
28. Every solicitor shall keep a register, to be known as the register of securities, in which he shall cause to be entered in respect of -
(a) all securities for money, the title to which is transferable by delivery, held by the solicitor for or on behalf of or in trust for other persons (excluding such negotiable securities as are received for immediate collection and conversion into money and are the subject of a trust account receipt and are entered on receipt thereof in a trust account cash book); and
(b) all securities and documents of title held by the solicitor in his own name or in the joint names of the solicitor and some other solicitor or solicitors for or on behalf of or in trust for any other person or persons
the following particulars -
(a) the date of receipt of the security by the solicitor;
(b) the description of the security, including the principal sum purporting to be secured thereby;
(c) the name of the person for whom or on whose behalf or in trust for whom the security is held;
(d) the name of the person, if any, in whose favour the security, if negotiable, is expressed to be made;
(e) the date on which the security is delivered out of the solicitor's possession and control; and
(f) a short narration of the disposal of the security on leaving the solicitor s possession and control.
29. The entries referred to in paragraphs (a) to (d) of the last preceding rule shall be made forthwith upon the receipt by the solicitor of the security and the entries referred to in paragraphs (e) and (o of the said rule shall be made forthwith upon the delivery of the security out of the solicitors possession and control
29A. The register of securities, register of investments and mortgage register shall form part of the solicitor's trust accounts within the meaning of Rule 16 hereof and shall be subject to audit accordingly.
30. Every solicitor shall retain every volume of his register of securities, register of investments and mortgage register for at least two years after the date of the last disposal entry made therein.
30A. (1) Every solicitor shall keep a register to be known as the register of investments, in which he shall record, or in which he shall cause to be recorded, details of every investment of trust monies for or on behalf of any person for which there is no security held by the solicitor which is required pursuant to Rule 28 to be entered in the register of securities;
(2) The details to be entered in the register of investments shall include in relation to each investment:-
(a) the name of the person for whom the investment is made;
(b) the amount invested;
(c) the date upon which the investment is made;
(d) description of the investment;
(e) details (including the cheque number or other means of identification) of the payments whereby the investment is made sufficient to identify the payment in the trust books of account;
(f) a statement as to whether any certificate or other document evidencing the investment or security therefor is held by the solicitor, and
(g) when the investment matures or is realised and the proceeds are received by the solicitor for or on behalf of any person a reference to the cash receipt record in the trust books of account.
