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Can a mortgage be discharged when the mortgagee cannot be found?

21 Jul 2023

| Author: Andrea Hilton

Discharge of mortgage – mortgagee cannot be found – amount secured repaid – Land Transfer Act 2017, s 105 – Property Law Act 2007 – Limitation Act 2010 – Thomson v Commissioner of Inland Revenue [1955] NZLR 69 – Re Hardiman [2021] NZHC 1491

Re Ryan [2023] NZHC 1641 per Dunningham J.

 

Julie Sarah Ryan’s property was subject to a second mortgage. The amount secured was repaid in 1992 but the mortgage was not discharged. The mortgagee, Andrew Housing Ltd (AHL), was removed from the Companies Register in January 1999. Its successor company, Nationwide Homes Ltd, had no record of Ryan’s mortgage.

Ryan asked the High Court to exercise its discretion to order the mortgage’s discharge under s 105 of the Land Transfer Act 2017 (LTA) or under ss 109-111 of the Property Law Act 2007 (PLA).

The application was made without notice and was dealt with on the papers after counsel filed a memorandum addressing the facts and the relevant law. The court reviewed the two applicable procedures and applied them to Ryan’s circumstances.

Under s 105, the applicant must satisfy the court that the mortgagee is barred from seeking payment of the funds secured and is barred by the Limitation Act 2010 from seeking any other remedies in respect of the mortgaged land, except an application for adverse possession under the LTA.

Thomson added a gloss, requiring the circumstances to be such that it was “just and equitable” for the court to exercise its discretion.

Section 109 of the PLA requires the mortgagee to be “unable to be found”. Subject to evidence, the court may then declare the secured amounts are repaid in full. Under s 111, together with s 83, the court order has the effect of a discharge of mortgage.

Applicable principles: whether there is evidence of funds being repaids 11 of the Limitation Act 2010 bars AHL claiming money – whether a deregistered company is an entity – s 105 of the LTA discretionary – just and equitable circumstances necessary for exercise of discretion – Limitation Act bars mortgagee from other recovery proceedings – mortgagee cannot be found – established deregistered company cannot be found Hardiman – s 110 declaration that all amounts paid in full

Held: The mortgage should be discharged and either the LTA or PLA procedure was applicable.

The court preferred the PLA procedure because it was satisfied all secured amounts had been repaid and the mortgagee could not be found. Accordingly, it was declared that all amounts were repaid and pursuant to s 111 the mortgage was to be discharged.

 

Andrea Hilton is a sole practitioner specialising in local government work. She has 14 years’ experience as a general counsel in local government.

Re Ryan [2023] NZHC 1641

 

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