McGUINNESS v WANGANUI RANGITIKEI BUILDING SOCIETY [2023] NZHC 1461
The judge was satisfied on the applicant's uncontradicted evidence that the mortgage had been paid in full, that the Building Society ceased to exist and no successor could be identified, and that under ss 109(1)(a) and 110(a)(iii) of the Property Law Act 2007, and having regard to r 15.9 of the High Court Rules,...
Source-derived case information.
- Citation
- [2023] NZHC 1461
- Parties
- Plaintiff: Robyn Joy McGuinness; Defendant: Wanganui Rangitikei Building Society
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 13 June 2023
- Procedural Posture
- Mortgage Discharge Under Property Law Act 2007 / Judgment on the Papers
- Outcome
- Application granted.
- Legal Topics
- Mortgage Discharge, Declaration, Property Law Act 2007, Unlocatable Defendant
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robyn Joy McGuinness
Plaintiff
Wanganui Rangitikei Building Society
Defendant
Procedural Posture
Mortgage Discharge Under Property Law Act 2007 / Judgment on the Papers
Legal Issues
- 1 Whether amounts secured by the 1997 mortgage have been paid in full
- 2 Whether the court may discharge the mortgage under ss 109 and 110 of the Property Law Act 2007
- 3 Whether orders can be made despite the defendant no longer existing and having no successor
Ratio Decidendi
The judge was satisfied on the applicant's uncontradicted evidence that the mortgage had been paid in full, that the Building Society ceased to exist and no successor could be identified, and that under ss 109(1)(a) and 110(a)(iii) of the Property Law Act 2007, and having regard to r 15.9 of the High Court Rules, the Court could declare the debt satisfied and discharge the mortgage.
Court Disposition
Application granted.
Orders
- Declaration under s 110 of the Property Law Act 2007 that all amounts secured by mortgage in favour of the Wanganui Rangitikei Building Society over the property at 26 Nikau Street, Tawhero, Whanganui and recorded on the computer freehold register as 226920.02 have been paid in full
- Order under s 109 of the Property Law Act 2007 that the mortgage is discharged
Full Case Text
Judgment text and source record
1 paragraphs
McGUINNESS v WANGANUI RANGITIKEI BUILDING SOCIETY [2023] NZHC 1461 [13 June 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECIV-2023-483-02[2023] NZHC 1461BETWEEN ROBYN JOY McGUINNESSPlaintiffAND WANGANUI RANGITIKEI BUILDINGSOCIETYDefendantHearing: On the papersCounsel: E J Unsworth for PlaintiffJudgment: 13 June 2023JUDGMENT OF RADICH J[1] In this proceeding, the plaintiff, Robyn Joy McGuinness (Robyn McGuinness)seeks orders that all amounts secured by a mortgage registered on 31 May 1997 againsther property at 26 Nikau Street, Tawhero, Whanganui in favour of the defendant, theWanganui Rangitikei Building Society (the Building Society), have been paid in fulland that the mortgage be discharged under ss 109 and 110 of the Property Law Act2007.[2] As is explained in the affidavit of Robyn McGuinness, the mortgage was paidin full several decades ago. Robyn McGuinness does not recall exactly when, andrecords are no longer available, but it was certainly before the point in time at whichthe Building Society ceased operations in or about October 1990.[3] The Building Society no longer exists. As mentioned in my Minute of 26 May2023, in which I directed no service of the pleadings was required, despite a good dealof effort it is not known what became of the Building Society. It no longer exists as alegal entity and, despite a range of inquiries, there is no information to suggest that itslending responsibilities have been taken over by any other organisation.[4] Furthermore, there are no records on the Register of Building Societies or withArchives New Zealand that relate in any way to the Building Society.[5] In terms of r 15.9 of the High Court Rules, I am satisfied that the evidenceestablishes the cause of action that is relied upon.[6] Accordingly, in all of these circumstances I am satisfied that, in terms ofss 109(1)(a) and 110(a)(iii) of the Property Law Act 2007, the orders that have beensought may be made.Orders[7] The Court declares:(a) Under s 110 of the Property Law Act 2007 that all amounts secured bymortgage in favour of the Wanganui Rangitikei Building Society overthe property at 26 Nikau Street, Tawhero, Whanganui and recorded onthe computer freehold register as 226920.02 (the mortgage) have beenpaid in full; and(b) Under s 109 of the Property Law Act 2007, the mortgage is discharged._____________________Radich JSolicitors:Horsley Christie, Whanganui for Plaintiff