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Mortgages

QLD

This publication guides practitioners in Queensland through the preparation of loan agreements, mortgages, and guarantees.

2 Matter Plans

Overview

The commentary covers the drafting and execution of mortgages, amendments, variations, and assignment deeds, as well as completion, registration, discharge, and default, whether acting for the mortgagor or the mortgagee.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents. The comprehensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter.

Also included is 1001 Conveyancing Answers (QLD), which is a useful reference guide.

Precedents in this publication include:

  • Library of loan documents, including:
    • Mortgage-linked loan agreement;
    • Standard terms document – Registered memorandum;
    • No-security loan agreement;
    • Acknowledgements of debt;
    • Assignment, variation and priority;
    • guarantee;
    • minutes and declaration for a company mortgagor;
  • Letters and notices for default of the mortgagor.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Mortgages (QLD)
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Looking to the Future
    • Item icon Electronic Signing and Witnessing
    • Item icon 1001 Conveyancing Answers (QLD)
    • Item icon 101 Costs Answers
    • Item icon A Brief Explanation of the Transition to E-Conveyancing
    • Folder icon Papers and articles - Conveyancing and property
      • Item icon Plain language – A paper by the Hon. Michael Kirby AC CMG
      • Item icon Adjustment for cladding agreements
      • Item icon Adjustment of rates
      • Item icon Adjustment of rent
      • Item icon Adjustments
      • Item icon Adjustments and land tax in 2024
      • Item icon Agreement to lease
      • Item icon Avoiding off the plan - Quality defects
      • Item icon Avoiding off the plan - Statutory rights
      • Item icon Avoiding off the plan contracts - A sequel
      • Item icon Bits and pieces
      • Item icon Breach of contract - Penalty interest
      • Item icon Breach of contract – Reasonably foreseeable loss
      • Item icon Breach of section 32
      • Item icon Caveats (Vic)
      • Item icon Caveats - Forcible removal 1
      • Item icon Caveats - Forcible removal 2
      • Item icon Caveats - Insufficient proceeds from settlement
      • Item icon Caveats - Tenant’s caveats and the sale or mortgaging of freehold property
      • Item icon Caveats - Use them!
      • Item icon Costs and caveats
      • Item icon Certificates of title in electronic conveyancing
      • Item icon Clayton's settlement
      • Item icon Compensation for loss
      • Item icon Contamination
      • Item icon Contract – Australian Consumer Law – Impact on residential conveyancing
      • Item icon Contract - Avoiding off the plan contracts 1
      • Item icon Contract - Avoiding off the plan contracts 2
      • Item icon Contract - Changing the contract by special condition
      • Item icon Contract - Electronic conveyancing special condition
      • Item icon Contract - Electronic signatures
      • Item icon Contract - Entire contract
      • Item icon Contract - Guarantee
      • Item icon Contract - Is there a contract?
      • Item icon Contract - Misleading contracts
      • Item icon Contract - New contract
      • Item icon Contract - New contract - Contract of sale tweaked
      • Item icon Contract - New contract - Happy anniversary
      • Item icon Contract - New special conditions for contract of sale
      • Item icon Contract - Nomination
      • Item icon Contract - Terms contracts 1
      • Item icon Contract - Terms contracts 2
      • Item icon Contract - Terms contracts 3
      • Item icon Contract - Trust transactions
      • Item icon Cooling off
      • Item icon Co-owners - Joint tenancy or tenancy in common
      • Item icon Co-owners and easements – Two topics
      • Item icon Covenant - Removal of covenants 1
      • Item icon Covenant - Removal of covenants 2
      • Item icon Defects - Essential safety measures - Part 1
      • Item icon Defects - Essential safety measures - Part 2
      • Item icon Defects - Occupancy and insurance certificates
      • Item icon Deposit - Deposit release - 2010
      • Item icon Deposit - Deposit release - 2017
      • Item icon Deposit - Deposit release - A solution?
      • Item icon Deposit - Deposit release - Tough decisions?
      • Item icon Deposit - Deposit release - Why take the risk?
      • Item icon Deposit - Forfeiture of deposit
      • Item icon De-regulated Contract of Sale of Land
      • Item icon Deterioration - A matter of degree
      • Item icon Deterioration - General condition 24 has teeth
      • Item icon Deterioration - State of the premises
      • Item icon Disclosure of death
      • Item icon Estate agent - Agent beware
      • Item icon Estate agent’s commission – Money for nothing
      • Item icon Foreign residents capital gains tax withholding
      • Item icon GST - GST and mistake
      • Item icon GST - Margin scheme
      • Item icon GST withholding
      • Item icon Inadvertent disclosure
      • Item icon Inspection - Right to inspect
      • Item icon Land tax - Part 1
      • Item icon Land tax - Part 2
      • Item icon Land transfer duty benefits
      • Item icon Lease - Abandoned goods
      • Item icon Lease - Landlords beware
      • Item icon Lease - Retail lease
      • Item icon Lease - Retail lease - Predominant use
      • Item icon Lease - Retail lease cost
      • Item icon Lost trust deeds
      • Item icon Material facts
      • Item icon Measurements
      • Item icon Mortgage stress
      • Item icon Nomination
      • Item icon Nomination and the Australian Consumer Law
      • Item icon Nomination disputes
      • Item icon Notice of action
      • Item icon Notices - Liability for notices
      • Item icon Off the plan duty concessions
      • Item icon Owner-builder insurance
      • Item icon Owner-builders
      • Item icon Owners corporations
      • Item icon Personal Property Securities Act
      • Item icon Planning certificates - Accuracy
      • Item icon Power of attorney
      • Item icon Priority notice
      • Item icon Property - Rules and undertakings
      • Item icon Rescission - Consequences of rescission 1
      • Item icon Rescission - Consequences of rescission 2
      • Item icon Rescission - Costs on rescission
      • Item icon Retail lease outgoings
      • Item icon Retail premises
      • Item icon Retail repairs
      • Item icon Retail repairs revisited
      • Item icon Sale of land amendments
      • Item icon Scary short-stays
      • Item icon Self managed superannuation funds
      • Item icon Septic situation
      • Item icon Sheriff - Enforcement procedure
      • Item icon Sheriff's sale - Part 1
      • Item icon Sheriff's sale - Part 2
      • Item icon Solicitor - Lawyers selling real estate
      • Item icon Solicitor – Executor’s commission 1 – Horns of a dilemma
      • Item icon Solicitor - Executor's commission 2 - A fiduciary duty
      • Item icon Solicitor – Liability for commercial advice
      • Item icon Stamp duty concessions
      • Item icon Subdivision - Off the plan sales
      • Item icon Subdivision - Off the plan sales - Best endeavours - Part 1
      • Item icon Subdivision - Off the plan sales - Best endeavours - Part 2
      • Item icon Subdivision - Off the plan sales - Materially affects
      • Item icon Subdivision - Off the plan sales - Sunset conditions
      • Item icon Subdivision - Owners corporation certificates
      • Item icon Subdivision - Owners corporation repairs
      • Item icon Subdivision - Owners corporations
      • Item icon Subject to contract
      • Item icon Sunset clause – Vendor ending a contract – Purchaser’s consent or court order required
      • Item icon Time of the essence
      • Item icon To be or not to Airbnb
      • Item icon Trade practices – Fair trading in property transactions
      • Item icon Vendor statement - Aboriginal Heritage Act
      • Item icon Vendor statement - Breach of section 32
      • Item icon Vendor statement - Growth areas infrastructure contribution
      • Item icon Vendor statement - Honest and reasonable
      • Item icon Vendor statement and leases
      • Item icon Vendor statement review
      • Item icon Vendor statements and the Australian Consumer Law
      • Item icon Vendor's duty to co-operate
      • Item icon Wills and estates - Death in the house
    • Item icon Further information
  • Item icon Overview
    A mortgage is essentially a contract to secure the payment or performance of a monetary obligation on security of real property which gives the mortgagee a statutory ability to foreclose or sell on default. The mortgage is supported by a loan agreement between the parties. There are both legal, or ...

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Mortgages
    • Item icon To do list - Mortgages
    • Item icon First steps
    • Item icon Client details and verifying identity
    • Item icon Verification of identity in electronic conveyancing transactions
    • Item icon Client authorisation
      A client authorisation enables a client to authorise a solicitor or conveyancer to act on their behalf for an electronic transaction. Although the authorisation is similar to a power of attorney, the legislation specifically states that a client authorisation is not a power of attorney. When ...

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    • Folder icon Library of identity and authorisation forms - QLD
      • Item icon Verification of identity certificate
      • Item icon Client authorisation
      • Item icon Identifier declaration
      • Item icon Identity - witnessing certification - outside Australia
      • Item icon Australian Embassy/High Commission/Consulate certification form
      • Item icon Identity agent certification
    • Item icon Retainer instructions - Mortgages
    • Item icon Conflict of interest check
    • Item icon Initial letter to client with costs agreement and summary of loan terms - Mortgage
    • Item icon Time and costs estimates
    • Folder icon If required - Updating costs disclosure
      • Item icon Letter to client updating costs disclosure
      • Item icon Charge securing costs
      • Item icon Guarantee securing costs
      • Folder icon Costs disclosure before settlement in litigation matters
        • Item icon Letter to client - Costs disclosure before settlement - NSW, VIC, and WA
        • Item icon Letter to client - Costs disclosure before settlement - QLD, SA, TAS, ACT, and NT
    • Item icon Costs agreement - QLD
    • Item icon Abbreviated costs disclosure - Costs under $3000
    • Item icon Initial letter to client enclosing costs agreement
    • Item icon Summary of loan terms
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Deed for general use
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of deed - All parties
          • Item icon Confidentiality for terms of deed - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment
          • Item icon Confidentiality for defined information - All parties
          • Item icon Confidentiality for defined information - One party
          • Item icon Confidentiality for terms of agreement - All parties
          • Item icon Confidentiality for terms of agreement - One party
          • Item icon Costs
          • Item icon Counterparts
          • Item icon Dispute resolution
          • Item icon Events beyond control
          • Item icon Governing law and jurisdiction
          • Item icon Interpretation
          • Item icon No assignment
          • Item icon Notices
          • Item icon Severance
          • Item icon Waiver
          • Item icon Whole agreement
      • Folder icon Execution clauses
        • Folder icon Library of execution clauses for agreements
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
          • Item icon Individual - No witness
        • Folder icon Library of execution clauses for deeds
          • Item icon Attorney
          • Item icon Authorised officer
          • Item icon Company
          • Item icon Company - Sole director
          • Item icon Individual
      • Folder icon Statutory declarations
        • Item icon Commonwealth statutory declaration
        • Item icon Statutory declaration - blank - ACT
        • Item icon Statutory declaration - blank - NSW
        • Item icon Statutory declaration - blank - VIC
        • Item icon Statutory declaration - blank - QLD
        • Item icon Statutory declaration - blank - TAS
        • Item icon Statutory declaration - blank - SA
        • Item icon Statutory declaration - blank - WA
        • Item icon Statutory declaration - blank - NT
        • Item icon Standard annexure note for documents
      • Item icon Standard annexure note for documents
  • Folder icon B. The mortgage
    • Item icon The National Mortgage Form
      The National Mortgage Form can be created and registered within an ELNO such as PEXA and allows for the incorporation of any registered common provisions, or other registered dealings. The National Mortgage Form is a national initiative to standardise the content and presentation of mortgages ...

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    • Item icon National Mortgage Form – completed in PEXA
    • Item icon Loan agreements and Registered memorandum
      The mortgage must be supported by a loan agreement between the mortgagee and the mortgagor. The guide includes two loan agreements that may be used to record the creation of the loan relationship. The Mortgage Linked Loan Agreement is linked to the mortgage which incorporates the provisions found ...

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    • Item icon Mortgage linked loan agreement
    • Item icon Standard terms document - Registered memorandum 716783565
    • Item icon Electronic lodgement
      The National Mortgage Form must be created and registered within an ELNO such as PEXA. ELNO allow for the incorporation of any registered common provisions, or other registered dealings.

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    • Item icon Formality
      An instrument of mortgage must be executed in the approved form: s 73 of the Land Title Act 1994. Assurances of land must be in writing: s 10 of the Property Law Act 1974.

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    • Item icon Informal mortgage
      Whilst the common law insisted on the formality of a deed, equity was more prepared to examine the intention of the parties and enforce relationships as mortgages even if they did not achieve the formality requirements of the common law. Equity merely needed to be satisfied that the parties ...

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    • Item icon Third party mortgage
      The simplest mortgage relationship involves two parties: the lender who provides the money and the borrower who receives it and gives a mortgage over their property. However a third party may become involved if the borrower, whilst receiving the money and promising to repay, has no property to ...

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    • Item icon Mortgage by corporations
      As legal entities, corporations can enter into mortgages over property owned by the corporation. The risk for the mortgagee however relates to the execution of mortgage documents. A document that is fraudulently executed is a nullity at common law. A mortgagee who accepts a mortgage signed by ...

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    • Item icon Mortgage by trustee
      Most documents establishing a trust will authorise the trustee to borrow for the purposes of the trust. It is beyond the trustee power and in breach of trust for the trustee to borrow for purposes other than the trust. A lender might not have notice of the existence of the trust and therefore not ...

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    • Item icon National credit code
      The National Credit Code (the code) replaced the existing state and territory based consumer credit codes with effect from 1 July 2010. It is found in Schedule 1 to the National Consumer Credit Protection Act 2009. The code has a broad effect on mortgages. Section 7 of the code stipulates the type ...

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    • Item icon Joint borrowers - Forgery
      Even if one joint proprietor/borrower forges the signature of the other joint proprietor/borrower, the lender's mortgagee will become indefeasible upon registration. However the mortgage will only allow the lender to enforce against the 'innocent' joint proprietor to the extent of the mortgage ...

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    • Item icon Interest
      A loan agreement does not of necessity require the payment of interest as it may simply require repayment of the principal sum. Generally interest is only payable if the agreement between the parties provides for the payment of interest. However s 78(1)(a) Property Law Act 1974 implies a covenant ...

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    • Item icon Repayment
      A mortgage is a contract. If the mortgage provides that repayment is to be on an ascertainable date, then that is the date for repayment whereby either early or late repayment will be a breach of the contract.

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    • Item icon Personalty
      As from 30 January 2012 the Personal Property Securities Act 2009 governs the priorities between competing interests whereby security interests, formerly known as charges, are registered on the Personal Property Securities Register (PPSR). Charges registered with ASIC prior to 30 January 2012 were ...

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    • Folder icon If required - Old system
      • Item icon Old system mortgage
      • Item icon Deed of assignment of old system mortgage
    • Folder icon If required - Ancillary documents
      • Item icon Notice of assignment of simple debt
      • Item icon Business purpose declaration
    • Folder icon If required - No security loan agreement
      • Item icon No security loan agreement
  • Folder icon C. Acting for the mortgagee
    • Item icon Mortgagee's rights
      Legal costs In the absence of an agreement between the parties, the mortgagor is not liable to pay the mortgagee’s legal costs. However, most mortgage documents provide that the mortgagor will pay those costs. Costs will be on a party-party basis only, unless otherwise agreed, but may provide for ...

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    • Item icon Letter to mortgagor's solicitor submitting documents
    • Item icon Authority to complete documents and satisfy requisitions
    • Item icon Clause - Statutory declaration re mortgages notice claims etc.
    • Item icon Statutory Declaration
    • Item icon Mortgagee's requisitions
  • Folder icon D. Acting for the mortgagor
    • Item icon Letter to mortgagor to attend to sign mortgage
    • Item icon Letter to mortgagee's solicitor returning documents
    • Item icon Letter to discharging mortgagee requesting discharge
    • Item icon Direction to pay
    • Folder icon If required - Company mortgagor
      • Item icon Minutes of meeting of company mortgagor
      • Item icon Statutory Declaration
      • Item icon Example content - Statutory declaration that company is solvent
  • Folder icon E. If Required - Independent legal advice, priorities, guarantees and caveats
    • Folder icon Independent legal advice
      • Item icon Acknowledgement of legal advice - Borrower
      • Item icon Acknowledgement of legal advice - Guarantor
      • Item icon Consent to same solicitor legal advice - Borrower guarantor
      • Item icon Example content - Declaration by borrower
      • Item icon Example content - Declaration by third party for the borrower
      • Item icon Statutory Declaration
      • Item icon Certificate of independent financial advice
      • Item icon Interpreter's certificate
    • Folder icon Priorities, guarantees and acknowledgements
      • Item icon Second mortgage
        There is absolutely no difference in the form of a second or subsequent mortgage. There may be any number of mortgages granted over a property. It is just a matter of whether the mortgagee is satisfied that the mortgagor still retains sufficient equity in the property to support another mortgage, ...

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      • Item icon Priority between mortgages
        Where there is more than one mortgage affecting a property, priority will be determined on the basis of time. In a Torrens environment it will be time of registration, with the first registered mortgage taking priority. If neither mortgage is registered, it will be time of creation, with the ...

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      • Item icon Priority agreements
        Mortgagees may agree amongst themselves as to the priority of their mortgages. If those mortgages are registered, they may lodge a variation of priority. A variation can only be registered in relation to registered mortgages. If one mortgage is not registered, a variation cannot be registered, even ...

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      • Item icon Tacking
        Section 82 of the Property Law Act 1974 effectively abolishes the general right to tack with the exception of the tacking of a further advance. A mortgagee may advance as much and as often as the mortgagee wishes to. The doctrine of tacking merely affects the priority that the mortgage will enjoy ...

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      • Item icon Marshalling
        Marshalling equitable doctrine relates to realising of security when two mortgagees have security over assets of the mortgagor. If one mortgagee has security over two assets and a second mortgagee has security over only the first of those assets, marshalling allows the second mortgagee to rely on ...

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      • Item icon Mortgage priority
      • Item icon Deed of priority
      • Item icon Deed of guarantee and explanation
      • Item icon Acknowledgement of debt simple
      • Item icon Acknowledgement of debt various situations
      • Item icon Acknowledgement of debt caveatable interest
    • Folder icon Caveats
      • Item icon Caveats
        A mortgage creates a caveatable interest, so a caveat may be lodged. However, the power of sale can only be exercised pursuant to a registered mortgage, not a mortgage protected by caveat.

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      • Item icon Caveat
      • Item icon General request
  • Folder icon F. If required - Discharge, assignment and variation
    • Folder icon Discharge
      • Item icon Discharge
        Most discharge documents simply refer to the discharge of the land from the obligations under the mortgage. However, this does not necessarily constitute a discharge of the personal covenants that bind the mortgagor pursuant to the mortgage contract. See Industrial Acceptance Corporation Ltd v ...

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      • Item icon Release of mortgage
      • Item icon Deed of forgiveness of debt
    • Folder icon Assignment
      • Item icon Assignment of mortgage
        Like any other proprietary right, the mortgagee’s rights may be assigned to a third party. A transfer of mortgage is effected by the use of Titles Queensland Form 1 Transfer. Notice to the mortgagor is not strictly necessary, but an assignee would presumably wish to advise of the assignment to ...

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      • Item icon Notice of assignment of simple debt
      • Item icon Deed of assignment of debt - Concise
      • Item icon Deed of assignment of debt - Extensive
      • Item icon Deed of assignment of old system mortgage
      • Item icon Transfer
    • Folder icon Variation
      • Item icon Variation of mortgage
        The terms of a mortgage may be varied and the variation may be registered. Section 79 Property Law Act 1974 sets out what may be varied, including interest, amount, term or any covenant or provision of the mortgage. It is not possible to vary the parties or the property secured.

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      • Item icon Alteration
        A material alteration of a mortgage will invalidate the mortgage. If the alteration is authorised by some but not all of the mortgagors, it will be unenforceable against the mortgagor who did not authorise the alteration: Farrow Mortgage Services Pty Ltd (In Liquidation) and Anthony George Hodgson ...

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      • Item icon Amendment with blank schedule
      • Item icon Example content - Annexure to variation with omissions, variations or additions
  • Folder icon G. Default
    • Item icon Default notice under section 84 Property Law Act 1974
    • Item icon Letter to mortgagor with section 84 notice
    • Item icon Letter less priority encumbrancee with section 84 notice
    • Item icon Deed of forgiveness of debt
    • Item icon Limitation of actions
      No action for recovery of money due under a mortgage may be commenced after 12 years from the date when the right to the money accrued: s 26 Limitation of Actions Act 1974. An acknowledgement of liability under the mortgage prior to expiration of the limitation period may extend that period: ...

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  • Folder icon H. Settlement and finalising the matter
    • Folder icon If required - Body corporate
      • Item icon Information for body corporate roll
      • Item icon Letter to body corporate enclosing form 8 notice
    • Item icon Letter to mortgagor after settlement with summary
    • Item icon Letter to mortgagee after settlement with summary
    • Item icon Summary of loan terms
    • Item icon Example invoice incorporating notification of client's rights - QLD
    • Item icon Invoice recital - Mortgage
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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