Yoon v Lee [2017] NSWSC 1338

Yoon v Lee [2017] NSWSC 1338

The Court found that any claims by the mortgagee for repayment under the 1995 mortgage were statute barred under s 42(1)(a) of the Limitation Act 1969 (NSW), so the mortgagor could no longer be required to pay any money under the mortgage. Thus, for purposes of s 98(1) of the Conveyancing Act 1919 (NSW), all amounts due under the mortgage are deemed paid, entitling the mortgagor to orders for discharge and cancellation of the mortgage.

Parties
Plaintiff: Soohan Yoon; Defendant: Soon Ja Lee
Jurisdiction
Australia
Judgment Date
21 September 2017
Procedural Posture
Principal Judgment / Final Orders
Outcome
Orders made pursuant to s 98 of the Conveyancing Act 1919 (NSW); leave to proceed granted; costs awarded to plaintiff.
Legal Topics
Mortgages, Statutory Redemption, Service of Process, Limitation of Actions
Equity Land Law Mortgages Statutory Redemption Service of Process Limitation of Actions

Case Brief

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Parties

Soohan Yoon

Plaintiff

Soon Ja Lee

Defendant

Procedural Posture

Principal Judgment / Final Orders

Legal Issues

  1. 1 Whether funds secured by the 1995 mortgage were ever advanced
  2. 2 Whether the mortgagee's claim for repayment is statute barred
  3. 3 Whether all amounts due under the mortgage have been paid

Ratio Decidendi

The Court found that any claims by the mortgagee for repayment under the 1995 mortgage were statute barred under s 42(1)(a) of the Limitation Act 1969 (NSW), so the mortgagor could no longer be required to pay any money under the mortgage. Thus, for purposes of s 98(1) of the Conveyancing Act 1919 (NSW), all amounts due under the mortgage are deemed paid, entitling the mortgagor to orders for discharge and cancellation of the mortgage.

Court Disposition

Orders made pursuant to s 98 of the Conveyancing Act 1919 (NSW); leave to proceed granted; costs awarded to plaintiff.

Orders

  • All amounts due under registered mortgage O436626 in respect of land in folio identifier 20/4/733 have been paid and no amount remains outstanding.
  • Registrar may give a certificate under s 98(1F) confirming compliance in relation to registered mortgage O436626.