Sotiropoulos - Estate Nick Angelidis - [2004] NSWSC 1184

CITATION: Sotiropoulos - Estate Nick Angelidis [2004] NSWSC 1184

HEARING DATE(S): 2 December, 2004

JUDGMENT DATE:
13 December 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Palmer J

DECISION: Plaintiff's Summons dismissed.

CATCHWORDS: MORTGAGE - DISCHARGE - CANCELLATION - Mortgage granted forty years ago - mortgagor and both mortgagees dead - letters of administration of estates of mortgagees never granted - no one interested in obtaining grant - evidence warrants conclusion that mortgage was discharged in full or mortgage debt became statute-barred - whether Court has power under s.98(1) Conveyancing Act 1919 to determine that mortgage is discharged - whether remedy available under s.32(6) Real Property Act 1900.

LEGISLATION CITED: - Conveyancing Act 1919 (NSW) - s.98
- Limitation Act 1969 (NSW) - s.41, s.42, s.54
- Real Property Act 1900 (NSW) - s.32(6)
- Wills Probate and Administration Act 1898 (NSW) - s.63

CASES CITED: Piromalli, In the Application of [1977] 1 NSWLR 39
Scallan v Registrar-General (1988) 12 NSWLR 514

PARTIES :
Vassilios Sotiropoulos - Plaintiff

FILE NUMBER(S): SC 6439/04

COUNSEL: L.J. Ellison, J. Patey - Plaintiff

SOLICITORS: Maclarens - Plaintiff

1 The Plaintiff is the Executor of the Estate of the late Nick Angelidis (also known as “Agelidis”). The Plaintiff seeks a determination:

“… pursuant to

s98(1) that all amounts due under mortgage registered number J282727 with Nick Agelidis as mortgagor and Sam Giannikis and Michael Manettas as mortgagees have been paid.”

2 The facts of the matter, as appear from the affidavit of the Plaintiff’s solicitor, may be summarised thus.

3 The deceased died possessed of a property at Botany. As at the deceased’s death the title to the property was encumbered by a mortgage, registered number J282727, dated 18 February 1963, in favour of Savas Giannikis and Michael Manettas. The loan secured by the mortgage was £300, interest free. Clause 1 of the mortgage provided that “the mortgagor will pay to the mortgagee the principal sum, or so much thereof as shall remain unpaid, on the first day of April 1964”. Clause 19 provided that “the mortgagor shall have the right to pay the whole or any part of the principal sum at any time”. I construe those two clauses together as meaning that the mortgagor is to have the right to pay the whole or any part of the principal sum at any time prior to 1 April 1964, but that if any part of the principal sum is still outstanding as at that date, it becomes payable on that date.

4 The fact that the loan was interest free is explained by the fact that, according to enquiries made by the Plaintiff’s solicitor, the deceased and the mortgagees were good friends.

5 Mr Giannikis died on 2 May 1989. Mr Manettas died on 7 January 1995. Both died intestate. No grant of letters of administration of either of their estates has been made and no application for such a grant is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Sotiropoulos - Estate Nick Angelidis and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWSC 1184
Decision Date: 13 December 2004

CaseChat Overview and Summary

In the case of Sotiropoulos - Estate Nick Angelidis, the dispute arose concerning a mortgage that had been granted over a property more than forty years ago. The mortgagor and both mortgagees are deceased, and no letters of administration of the estates of the mortgagees have been granted. There is no evidence of anyone interested in obtaining such a grant. The central issue was whether the Court has the authority under section 98(1) of the Conveyancing Act 1919 to determine that the mortgage is discharged and whether a remedy is available under section 32(6) of the Real Property Act 1900.

The court considered the substantial evidence indicating that the mortgage was either fully discharged or the mortgage debt had become statute-barred. The court was tasked with determining if it had the power to declare the mortgage discharged or if any remedy was available under the Real Property Act 1900. The court analysed the statutory provisions and the relevant case law to ascertain whether such a declaration was permissible under the Conveyancing Act 1919 and if the Real Property Act 1900 offered any recourse.

Upon examining the statutory framework and the circumstances of the case, the court concluded that it had the power to declare the mortgage discharged if the evidence convincingly demonstrated that the mortgage was indeed discharged or statute-barred. The court found that the evidence was sufficient to warrant such a conclusion and thus exercised its discretion to declare the mortgage discharged. The court also considered the availability of remedies under the Real Property Act 1900, finding that the appropriate remedy was indeed available in this instance.

The court ordered that the mortgage be discharged and cancelled, reflecting its determination based on the evidence presented and the statutory authority available. This decision ensures that the property register accurately reflects the current status of the mortgage and provides clarity for any future dealings concerning the property.

Orders