Mandile v Smith

[2016] NSWSC 1621

Supreme Court

New South Wales

Medium Neutral Citation:	Mandile v Smith [2016] NSWSC 1621
Hearing dates:	17 November 2016
Date of orders:	17 November 2016
Decision date:	17 November 2016
Jurisdiction:	Equity
Before:	Darke J
Decision:	Order made under s 98 of the Conveyancing Act that all amounts due under a mortgage have been paid.
Catchwords:	REAL PROPERTY – mortgages – redemption – mortgagee unable to be found – whether all amounts due under mortgage have been paid – Conveyancing Act 1919 (NSW), s 98
Legislation Cited:	Conveyancing Act 1919 (NSW), s 98
Cases Cited:	Re Bochenek [2011] NSWSC 435
Category:	Principal judgment
Parties:	Bartolo Mandile (First Plaintiff) Saverina Mandile (Second Plaintiff) Joan Margery Alison Smith (Defendant)
Representation:	Counsel: Mr A Katsoulas (Plaintiffs)   Solicitors: GA Lawyers (Plaintiffs)
File Number(s):	2016/310801
Publication restriction:	None

Judgment – EX TEMPORE

1. The plaintiffs (formerly known as Bob Mandile and Sarina Mandile respectively) are the registered proprietors of a property in Petersham Road, Marrickville (“the property”). The property consists of the land contained in Folio Identifier 19/7970 under the provisions of the Real Property Act 1900 (NSW).

2. The plaintiffs seek relief under s 98 of the Conveyancing Act 1919 (NSW) in respect of a mortgage they gave over the property in 1971 to the defendant, Joan Margery Alison Smith (“the mortgagee”). The mortgage bears registration number M561419. The plaintiffs claim that they repaid all of the money owing under the mortgage many years ago, and that the mortgagee cannot now be found.

3. Section 98(1) of the Conveyancing Act provides:

Where land is subject to a mortgage and the person empowered to reconvey the land or, where the land is under the provisions of the Real Property Act 1900 , to execute in respect thereof a discharge referred to in section 65 of that Act, is out of the jurisdiction, cannot be found or is unknown, or if it is uncertain who the person is, or if the person is dead and no personal representative has been or is likely to be appointed for the person or it is uncertain who the personal representative is, the court may, upon the application of the person for the time being entitled to redeem the mortgaged land, determine in such manner as the court thinks fit whether or not all amounts due under the mortgage have been paid and, if not, the amount thereof outstanding.

4. Affidavits sworn by the plaintiffs (on 14 October 2016) and by their solicitor, Amani Abou-Jabein (on 14 October 2016 and 8 November 2016) were read on the application. The evidence clearly establishes that the mortgagee cannot be found. Numerous searches and enquiries have been made in an attempt to locate her, without success. Accordingly, the power under s 98(1) of the Conveyancing Act is enlivened.

5. The evidence further establishes that the plaintiffs acquired the property in December 1971 for $19,000. They granted a mortgage over the property at that time to the mortgagee to secure repayment of a principal sum of $16,000. The mortgage provided for periodic payments of interest and principal until 23 December 1974, when the balance of the principal sum and any unpaid interest thereon was required to be paid. The mortgage provides that upon default the mortgagee is at liberty to exercise any of the powers of a mortgagee under the Real Property Act.

6. The plaintiffs deposed that they made regular payments under the mortgage until a final lump sum repayment of $9,950 was made on 8 April 1976. A payment in that amount is evidenced by a receipt issued by Mackellar Crain, solicitors, on 8 April 1976. However, the receipt appears to relate to a transaction with someone named McGinty, and thus not to the mortgage the subject of this application. The plaintiffs appear to be mistaken about the details of the final payment.

7. Nevertheless, I accept their evidence to the effect that a final payment was made by them under the mortgage, that they henceforth believed that the loan had been fully paid off, and that the mortgage over the property “would come off and would be discharged”. I also accept that, from that time, the plaintiffs have not had any contact with the mortgagee, Mr Crain, or his firm. Had the plaintiffs not paid all of the amounts due under the mortgage, it is unlikely that they would not have heard from the mortgagee. It is almost 42 years since the principal sum and interest thereon was required to be repaid to the mortgagee.

8. In these circumstances, I determine that all amounts due under the mortgage have been paid. The Court will make an order pursuant to s 98(1) of the Conveyancing Act that all amounts due under mortgage M561419 registered over the land contained in Folio Identifier 19/7970 have been paid. The Court will further direct the Registrar to give a certificate to the effect that s 98 of the Conveyancing Act has been complied with in relation to mortgage M561419 registered over the land contained in Folio Identifier 19/7970.

9. Given that the mortgagee cannot be found, there is no utility in fixing an amount of costs for the purposes of s 98(1A) of the Conveyancing Act.

10. For completeness, the Court will order pursuant to s 14 of the Civil Procedure Act 2005 (NSW) that the requirements of the Uniform Civil Procedure Rules concerning service upon the defendant be dispensed with. In that regard, I note that in applications under s 98 of the Conveyancing Act the mortgagee is not usually joined as a defendant (see Re Bochenek [2011] NSWSC 435 at [1] (Brereton J)).

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