22 Jun 2021
Where a mortgagee company has been wound up and cannot be located, and the available documentary evidence supports that the mortgage has been repaid, s109 of the Property Law Act 2007 authorises the High Court to order removal of the mortgage from the record of title; accordingly mortgage B642151.1 was removed from title WN475/22.
1 Mar 2020
The Court was satisfied on the evidence that clause 18 entitled the mortgagor to a discharge on the deaths of the mortgagees, that a discharge was provided in 2006 though now lost, and that the Court has power under ss 109-111 or its inherent jurisdiction to make an order with the same effect as a registered discharge; accordingly the Court granted leave to commence by originating application and ordered the registered mortgage discharged.
11 Jun 2019
The first defendant failed to provide any admissible evidence of a caveatable equitable interest or valid assignment; the caveat was unsupportable and likely contrived to circumvent the bankrupt estate; the bank validly exercised its power of sale and the Official Assignee is entitled to the surplus funds; the bank is entitled to indemnity costs to be deducted from the fund.
26 Sept 2018
Although there was a serious question to be tried about whether the sale was in good faith, the balance of convenience and overall justice favoured refusing the interlocutory injunction because Coronation Gardens was insolvent with no realistic prospect of redemption, damages were an adequate remedy, Coronation Gardens' undertaking as to damages was inadequate and the respondents' case was comparatively stronger on the affidavit material.
29 Mar 2018
The Court refused GLW's application to permit redemption of LCIL's mortgage 'without prejudice' as unnecessary to preserve the appeal and because the relief would alter the status quo; GLW could not relitigate findings that its equity of redemption had been extinguished and that setting aside the sale was inequitable; LCIL was ordered to provide a statement estimating amounts owing by a specified date and the statutory demand challenge was to be relisted.
20 Jun 2017
The Ontario deed forgiving the debt manifested the mortgagee's clear intention to release the debtor and, despite not mentioning the mortgage instrument, amounted to "words to that effect" under s 83(1)(c) so that the debt was discharged and the mortgage may be treated as paid and permitted to be discharged by order of the Court.
19 Dec 2016
Although GLW lacked liquid assets and the land had encumbrances, the Court dismissed the application for security for costs because GLW demonstrated a reasonably arguable case (notably in light of the Court of Appeal's findings in Coltart regarding duty and arguable bad faith by the mortgagee) and the discretionary balance favoured allowing access to the courts rather than imposing security that would likely prevent pursuit of the claim.
1 May 2013
The stay was refused because the proposed substantive ground of appeal (that the mortgage secured nothing) lacked substance, the applicant's prospects of success are slim, there are serious procedural issues about whether the Official Assignee validly abandoned the appeal which are properly resolved first in the High Court, and the applicant's conduct risked breaching an earlier undertaking; accordingly leave to appeal was deferred and the interim stay denied.
6 May 2010
Costs were awarded to the defendant because the defendant's position was vindicated on appeal and the plaintiffs structured the litigation; inspection costs were reduced from a 2B allocation to a 2A allocation given the limited number of documents, resulting in a costs award of $11,840 and total costs and disbursements of $11,930.
27 Nov 2009
Section 97(2) of the Property Law Act 2007 requires that discharge of a mortgage/encumbrance follows payment of all amounts and performance of all other obligations secured by it; where a rentcharge encumbrance secures ongoing services and levies, a nominal payment of the rent does not entitle the encumbrancer to redemption and discharge.