re Estate of Late Betty Elaine Bochenek
[2011] NSWSC 435
•30 March 2011
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 )
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 .
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.
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.
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.
Pursuant to Conveyancing Act, s 98(1), I determine that all amounts due under mortgage book 2686 number 175 have been paid.
In the circumstances, there is no utility in fixing any amount as to costs.
I refer the matter to the registrar for the issue of a certificate under s 98(1F).
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Decision last updated: 03 June 2011
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