Sotiropoulos - Estate Nick Angelidis [2004] NSWSC 1184

Sotiropoulos - Estate Nick Angelidis [2004] NSWSC 1184

The Court could not grant relief under s.98(1) Conveyancing Act 1919 (NSW) because the persons entitled to apply for letters of administration of the deceased mortgagees' estates were known: in each case, the deceased mortgagee's spouse. The fact that those persons were unwilling to apply for administration did not make the person empowered to execute a discharge unknown or uncertain within the meaning of s.98(1).

Jurisdiction
Australia
Judgment Date
13 December 2004
Procedural Posture
Summons Seeking a Determination Under S.98(1) Conveyancing Act 1919 (nsw) That All Amounts Due Under a Registered Mortgage Had Been Paid / First Instance, Equity Division
Outcome
Plaintiff's Summons dismissed.
Legal Topics
['discharge or Cancellation of Mortgage' 'power of the Court Under S.98(1) Conveyancing Act 1919 (nsw)' "registrar General's Power Under S.32(6) Real Property Act 1900 (nsw)" 'statute Barred Mortgage Debt' 'intestate Deceased Mortgagees With No Letters of Administration']
['mortgage Law' 'real Property' 'limitation of Actions' 'probate and Administration'] ['discharge or Cancellation of Mortgage' 'power of the Court Under S.98(1) Conveyancing Act 1919 (nsw)' "registrar General's Power Under S.32(6) Real Property Act 1900 (nsw)" 'statute Barred Mortgage Debt' 'intestate Deceased Mortgagees With No Letters of Administration']

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Procedural Posture

Summons Seeking a Determination Under S.98(1) Conveyancing Act 1919 (nsw) That All Amounts Due Under a Registered Mortgage Had Been Paid / First Instance, Equity Division

Legal Issues

  1. 1 ['Whether the Court had power under s.98(1) Conveyancing Act 1919 (NSW) to determine that all amounts due under the mortgage had been paid when both mortgagees were dead and no letters of administration had been granted.' 'Whether the person empowered to execute a discharge was unknown or uncertain within the meaning of s.98(1) where the spouses entitled to apply for administration were known but unwilling to apply.' 'Whether the Plaintiff may instead seek cancellation of the mortgage by the Registrar-General under s.32(6) Real Property Act 1900 (NSW).']

Ratio Decidendi

The Court could not grant relief under s.98(1) Conveyancing Act 1919 (NSW) because the persons entitled to apply for letters of administration of the deceased mortgagees' estates were known: in each case, the deceased mortgagee's spouse. The fact that those persons were unwilling to apply for administration did not make the person empowered to execute a discharge unknown or uncertain within the meaning of s.98(1).

Court Disposition

Plaintiff's Summons dismissed.

Orders

  • ["The Plaintiff's Summons is dismissed."]