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Mortgagee cannot bypass statutory notice requirements to salvage defective power‑of‑sale process.
A second mortgagee brought an application under s. 39(1) of the Mortgages Act seeking leave to sell property under power of sale without complying with the statutory notice requirements under s. 31.
The applicant had already entered into an agreement of purchase and sale before issuing the required notice of sale and sought to abridge the mortgagor’s 35‑day redemption period.
The court held that the mortgagee must strictly comply with the statutory notice requirements and that s. 39 should not be used to cure the mortgagee’s own failure to comply with the Act.
The evidence filed was also unreliable and raised questions about the alleged lack of equity in the property.
The application was dismissed.
