Mandile v Smith [2016] NSWSC 1621

Mandile v Smith [2016] NSWSC 1621

The evidence established that numerous searches and enquiries had failed to locate the mortgagee, so the power under s 98(1) was enlivened. Although the plaintiffs appeared mistaken about the details of the final payment, the Court accepted that a final payment was made, that they believed the loan had been fully paid off, and that there had been no contact from the mortgagee for almost 42 years after repayment was due; in those circumstances all amounts due under the mortgage had been paid.

Jurisdiction
Australia
Judgment Date
17 November 2016
Procedural Posture
Application Under S 98 of the Conveyancing Act 1919 (nsw) Concerning Redemption of a Mortgage Where the Mortgagee Cannot Be Found / Ex Tempore Principal Judgment
Outcome
Order made under s 98 of the Conveyancing Act that all amounts due under the mortgage have been paid.
Legal Topics
['mortgages' 'redemption' 'missing Mortgagee' 'discharge of Mortgage' 'service Dispensed With']
['real Property' 'equity'] ['mortgages' 'redemption' 'missing Mortgagee' 'discharge of Mortgage' 'service Dispensed With']

Case Brief

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Procedural Posture

Application Under S 98 of the Conveyancing Act 1919 (nsw) Concerning Redemption of a Mortgage Where the Mortgagee Cannot Be Found / Ex Tempore Principal Judgment

Legal Issues

  1. 1 ['Whether the mortgagee was out of the jurisdiction, could not be found, was unknown, or otherwise within s 98(1) of the Conveyancing Act 1919 (NSW).' 'Whether all amounts due under mortgage M561419 registered over Folio Identifier 19/7970 had been paid.' 'Whether service upon the defendant should be dispensed with.']

Ratio Decidendi

The evidence established that numerous searches and enquiries had failed to locate the mortgagee, so the power under s 98(1) was enlivened. Although the plaintiffs appeared mistaken about the details of the final payment, the Court accepted that a final payment was made, that they believed the loan had been fully paid off, and that there had been no contact from the mortgagee for almost 42 years after repayment was due; in those circumstances all amounts due under the mortgage had been paid.

Court Disposition

Order made under s 98 of the Conveyancing Act that all amounts due under the mortgage have been paid.

Orders

  • ['Order pursuant to s 98(1) of the Conveyancing Act 1919 (NSW) that all amounts due under mortgage M561419 registered over the land contained in Folio Identifier 19/7970 have been paid.' 'Direction that the Registrar give a certificate to the effect that s 98 of the Conveyancing Act has been complied with in...