Mortgage discharge

A deregistered company has a mortgage over your property

A company that holds a mortgage over property may be deregistered without the mortgage being released. To be able to deal with that property including sell it, a property owner may need the mortgage released.

When will ASIC consider an application to discharge/release a mortgage?

ASIC may - but is not obliged to - complete an outstanding obligation on behalf of a deregistered company and discharge/release a mortgage in the deregistered company's name.

Generally ASIC will consider an application to execute a discharge/release of mortgage where:

the money owing under the mortgage (principle and interest) was repaid before deregistration of the mortgagee and
the alternative remedies are not available to you.

If you did not fully repay money owing under the mortgage before the mortgagee company was deregistered, please contact ASIC's Property Law Team via email to determine what options may be available to you. Please ensure you identify the deregistered company by name and ACN and provide a recent title search showing the mortgage registered in the deregistered company's name.

Alternative remedies you must try before applying to ASIC for a discharge/release

ASIC generally exercises its discretionary powers under the Act to deal with vested property as a last resort. You need to ensure the following alternative remedies are not available to you before you apply to ASIC for a discharge/release. The cost of alternative remedies by itself is not a sufficient basis for ASIC to exercise its powers to deal with property.

1. Reinstatement by ASIC

Before making an application for ASIC to deal with the property, you should ask via Top call centre questions. if reinstatement of the company by ASIC is available. If it is, then it will be more convenient and perhaps more cost-effective for you.

For more information about reinstatement of the company by ASIC, see Apply to ASIC to reinstate a company.

2. Land titles office remedy

In some jurisdictions it might not be necessary for a discharge/release to be executed by ASIC. For example, the relevant state or territory land titles office Registrar may have power to remove/cancel a mortgage where the mortgage is satisfied and the mortgagee is deregistered, e.g. sections 147(2) and 148A of the Real Property Act 1886 (SA). You need to enquire with the relevant state/territory land titles office before making an application to ASIC.

ASIC, including ASIC on behalf of the Commonwealth, has no objection to the relevant titles office Registrar exercising their power to remove/cancel a mortgage without ASIC's execution of a discharge/release. You may wish to refer the titles office to this webpage.

If this remedy is available, then it will be cheaper and more convenient for you than making an application to ASIC.

How to apply to ASIC for a discharge/release of mortgage

If the alternative remedies outlined above are not available to you then you may wish to apply to ASIC's Property Law Team for a discharge/release of the mortgage.

Checklist - Discharge/Release of Mortgage

Use this Checklist to prepare, and then submit, your application to ASIC.

Download PDF Checklist – Discharge/Release of Mortgage (PDF 455 KB)

Instructions for submitting your application are contained in the Checklist.

You will also need to complete the following indemnity:

Indemnity: Release or discharge of mortgage

This indemnity is to be used when making an application to ASIC's Property Law Team for the release or discharge of a mortgage over your property in the name of a deregistered company.

Download draft indemnity (Word 62KB)

More information

This is only a general guide as to ASIC's approach to the property and rights that pass to ASIC and the Commonwealth on deregistration of a company. This document does not represent legal advice and should not be interpreted as such. Each application or enquiry will be considered on its facts and decided on its individual merits, based on all the information available to ASIC at the time. We encourage you to seek your own professional advice to find out how the law applying to deregistered companies affects your individual circumstances.