Chunilal v Patel

[2025] NZHC 1875

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-1458

[2025] NZHC 1875

UNDER

Rule 6.27(2)(e) of the High Court Rules 2016 and ss 109(1)(a), 110 and 111 of the Property Law Act 2007

IN THE MATTER

of an application for an order to discharge mortgages

BETWEEN

NIRMALA CHUNILAL and RAVINDER

THADAKA as trustees of AUROMA TRUST

Applicants

AND

RAJIV KUMAR PATEL, SANGEETA

PATEL and PREETI PATEL as personal representatives of the Estate of Amit Chhotu Patel

Respondents

Judgment

(on the papers):

9 July 2025

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 9 July 2025 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Patel Nand Legal, Auckland

CHUNILAL v PATEL [2025] NZHC 1875 [9 July 2025]

[1]        The applicants as trustees of Auroma Trust are the registered proprietors of one property in Westmere and three properties in Grey, Lynn Auckland. They apply by way of originating application for orders under ss 109 – 111 of the Property Law Act 2007 (Act) discharging registered mortgages over those properties granted in favour of Amit Chhotu Patel.

[2]       Each of the following mortgages in favour of Mr Patel are dated 9 October 1992 and were registered on 21 October 1992:

(a)mortgage instrument C424006.1 described in Record of Title NA115D/699;

(b)mortgage instrument C424008.2 described in Records of Title NA25D/546 and NA50A/1366; and

(c)mortgage instrument C424007.2 described in Records of Title NA242/46.

(together, Mortgages)

[3]        The first-named applicant and mortgagor,  Ms  Chunilal,  is  Mr  Patel’s  sister. Ms Chunilal and Mr Patel’s son, Raj Kumar Patel (Mr Patel Jr), have each sworn affidavits confirming that Mr Patel died in India on 8 December 2006. Mr Patel Jr explains that his mother died in India on 27 November 2017. Mr and Mrs Patel both died intestate, having divested their assets to their children during their  lifetime. Mr Patel Jr says that Mr Patel’s “surviving nuclear family” includes himself and his two sisters, Preeti Patel and Sangeeta Patel.

[4]        Ms Chunilal says the mortgages were  granted  as  security  for  loans  that Mr Patel had made to the trustees of the Auroma Trust. She says that all secured monies were repaid to Mr Patel during his lifetime, in accordance with the family arrangements between them. Mr Patel Jr confirms that he was aware of these arrangements because his father discussed them with him. Mr Patel Jr confirms that the secured debts were fully repaid during Mr Patel’s lifetime. Ms Chunilal and

Mr Patel Jr both explain that because the arrangement was essentially a family matter they overlooked the legal formalities of discharging the mortgages.

[5]        Mr Patel’s daughters have each sworn affidavits also confirming that he informed them all the mortgages have been fully repaid.

Sections 109 – 111

[6]Section 109(1)(a) of the Act provides:

109Redemption when mortgagee cannot be found, etc

(1)A mortgage over property may be discharged by a court under sections 110 and 111 or by Public Trust under section 112 if—

(a)a person who is entitled to receive, or has received, payment of the amounts secured by the mortgage is out of the jurisdiction, cannot be found, or is dead; or

[7]Section 110(a) of the Act provides:

110Redemption by order of court

A court may, in a circumstance referred to in section 109(1), make—

(a)all or any of the following orders on the application of the current mortgagor or any other person entitled to redeem the mortgaged property:

(i)an order to determine, in the manner that the court thinks fit, the amounts secured by the mortgage that would have been payable if the discharge of the mortgage had been sought under sections 97 to 101:

(ii)an order that the total amount determined under subparagraph (i) be paid into court:

(iii)an order declaring that all amounts secured by the mortgage have been paid in full:

[8]Section 111(1) of the Act provides:

111Certificates and orders operate as discharge of mortgage

(1) A certificate by the Registrar that the amount ordered to be paid into court under section 110 was so paid, or a sealed copy of an order of a court declaring that all amounts secured by the mortgage have been paid in full, has effect as if it were a duly executed mortgage discharge instrument under section 83.

[9]        In circumstances where the mortgagee died intestate outside New Zealand nearly 19 years ago, and his children are aware of the application and do not oppose it, I am satisfied it is appropriate for the application to be made by way of originating application. I am also satisfied it is appropriate to make the orders sought. The mortgagee’s three children confirm he told them the secured debt had been fully repaid.

Orders

[10] I make orders pursuant to s 110(a)(iii) of the Act declaring that all amounts secured by Mortgages described at [2] above have been paid in full.

[11]Pursuant to s 111(1) of the Act the Mortgages are to be discharged.

Robinson J