25 Mar 2010
Section 12A does not authorize a pre‑payment declaration freeing land from a mortgage; the court must first order payment into court under s12A(1) and only then, exercising its discretion under s12A(2) and having considered notice and fairness, may declare the land free. The proposed one‑stage approach defeats that statutory discretion and is impermissible.
25 Mar 2010
The court refused the one‑stage approach because s.12A(2) creates a discretion that only arises upon payment into court and the court lacks jurisdiction to declare land free of encumbrances before payment; accordingly the court ordered payment into court under s.12A(1) but imposed advertising and timing conditions to protect unknown mortgagees and preserve the court's discretion under s.12A(2).
25 Mar 2010
The one-stage approach is not permissible because s12A(2) grants a discretion that only arises upon payment into court under s12A(1); the court lacks jurisdiction to declare release before payment and must therefore order payment into court, notice/advertisement and then permit a s12A(2) application so as to preserve the encumbrancers' rights.