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10.3.1 General Principles

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Section 45A of the Act provides that the estate or interest of a purchaser or borrower in a property which is secured by a Corporation advance or a subsidised advance shall not be taken from him under the Bankruptcy Act 1966 or sold in satisfaction of a judgement debt (other than a mortgage) except with the approval of the Secretary. In accordance with ss.22(6), this protection does not extend to ineligible persons to whom an advance was transferred.

It is the general policy not to proceed with any action or proposal which would result in the client losing his right, title or interest in the property and to refuse consent to a creditor to levy execution against the property while the applicant is complying with the requirements of the Act. Departures from the policy will normally be made only in exceptional circumstances.

Consent will normally not be given to applications by a judgement creditor to levy execution against the property or to proceed with any action or proposal which would result in the borrower losing his right, title or interest in his or her property or being dispossessed therefrom while he or she is complying with the requirements of the Act and any mortgage. Where a Delegate considers that there are exceptional circumstances which justify the exercising of the powers of s.45A of the Act, details of the case may be referred to NO through the NPC Manager for consideration in accordance with GO 10.3.2.

In deciding whether exceptional circumstances exist, Delegates should attempt to distinguish those debts that have been incurred in the normal course of daily living and the maintenance of the eligible person and his/her family from those which have been incurred in the course of dealing with other members of the community for the purpose of engaging in commercial activities.

In the event that a decision is taken to give approval under Section 45A, Delegates are reminded that the client would be able to apply for a further subsidised advance on another property under the portability provisions which apply.