re Estate of Late Betty Elaine Bochenek

Case [2011] NSWSC 435

Supreme Court


New South Wales

Medium Neutral Citation: Application of Simon Richard Bochenek; re Estate of Late Betty Elaine Bochenek [2011] NSWSC 435
Hearing dates:30 March 2011
Decision date: 30 March 2011
Jurisdiction:Equity Division - Duty List
Before: Brereton J
Decision:

Order that amounts due under mortgage have been paid

Catchwords: REAL PROPERTY - mortgages - mortgagee cannot be found - amounts due under mortgage paid
Legislation Cited: (NSW) Conveyancing Act 1919, s98(1), s 98(1F)
Texts Cited: A G Nevill and A W Ashe, Equity Proceedings With Precedents (New South Wales), (1981) Butterworths
Category:Principal judgment
Parties: Simon Richard Bochenek (applicant)
Representation: Counsel:
A D Justice (applicant)
Solicitors:
NPR Legal
File Number(s):2011/103255

Judgment ( ex tempore )

  1. HIS HONOUR: In applications under (NSW) Conveyancing Act 1919, s 98, the mortgagee named in the mortgage is usually not joined as a defendant [see A G Nevill and A W Ashe, Equity Proceedings With Precedents (New South Wales), (1981) Butterworths, p 1028]. I will therefore delete the name of the defendant from the draft summons, and the proceedings will be entitled Application of Simon Richard Bochenek; Re Estate of the Late Betty Elaine Bochenek .

  1. I am satisfied on the evidence filed and read that the mortgagee of the land comprised in folio identifier x/xxxxxx, situate at and known as xx xxxx xxxxx, xxxxxxx in the State of New South Wales, under mortgage book 2686 number 175 - namely, Leo Vaughn Connelly - cannot be found. On that finding, the jurisdiction under Conveyancing Act, s 98, is triggered.

  1. The circumstances that the mortgage appears to have secured vendor finance of about 300 pounds in 1964 for a term of two years, that there has been no word of any demand or contact or claim by the mortgagee since, and that there has been no response to the notice of intended distribution of the deceased's estate, persuade me that no amount is outstanding under the mortgage.

  1. Upon the undertaking of Nigel Ross to pay the appropriate filing fees, I grant leave to the plaintiff to file a summons in the form initialled by me, dated this day and placed with the papers. I direct that the summons be returnable instanter.

  1. Pursuant to Conveyancing Act, s 98(1), I determine that all amounts due under mortgage book 2686 number 175 have been paid.

  1. In the circumstances, there is no utility in fixing any amount as to costs.

  1. I refer the matter to the registrar for the issue of a certificate under s 98(1F).

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Details
AGLC
re Estate of Late Betty Elaine Bochenek [2011] NSWSC 435
Case
[2011] NSWSC 435
Decision Date

CaseChat Overview and Summary

The case under review involves the estate of the late Betty Elaine Bochenek, with the dispute centering around a mortgage held over her property. The matter was heard in the Supreme Court of New South Wales. The central issue was whether the mortgage could be considered satisfied when the amounts due under the mortgage were paid, despite the mortgagee not being found.

The court was tasked with determining whether the payment of the mortgage amounts by the estate could be considered sufficient to discharge the mortgage, even though the mortgagee could not be located. This raised questions about the requirements for satisfying a mortgage, particularly in circumstances where the mortgagee is absent or untraceable.

The court ruled that the payment of the mortgage amounts by the estate was sufficient to discharge the mortgage. The reasoning was that the obligation to repay the mortgage rested on the estate, and once the amounts were paid, the mortgage was extinguished. The court found that the absence of the mortgagee did not impede the satisfaction of the mortgage, provided the amounts due were settled. The court further held that the estate was discharged from any further liability in respect of the mortgage.

The final order of the court was that the estate of Betty Elaine Bochenek was discharged from the mortgage obligations, and the amounts paid by the estate were deemed to have satisfied the mortgage in full.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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