Estate of Mills

[2025] NZHC 1801

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000922

[2025] NZHC 1801

IN THE MATTER OF

The Property Law Act 2007.

AND

IN THE MATTER OF

An application by SUSAN MARY CAMERON, Auckland, Managing Director as executor of the estate of the late GRAEME JOHN MILLS for an order

declaring payment of a mortgage.

Hearing:	2 July 2025
Appearances:	C G Smith for the Applicant
Judgment:	15 July 2025

JUDGMENT OF POWELL J

This judgment was delivered by me on 15 July 2025 at 4.00 pm.

Pursuant to R 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

RE The Estate of Graeme Mills [2025] NZHC 1801 [15 July 2025]

[1]    The applicant, Susan Cameron, is the executor of the estate of Graeme John Mills (the estate). The principal asset of the estate is a property located at 44 Felton- Mathew Avenue, Saint Johns, Auckland (the property). Although Mr Mills passed away in 2022, Ms Cameron has been unable to administer Mr Mills’ estate because there is a mortgage that remains on the title to the property.

[2]    In brief, the position of the estate is that there is sufficient evidence to conclude that the mortgage has been repaid many years ago and should have long since been removed from the title. The estate, through its counsel Ms Smith, therefore seeks an order pursuant to s 110(a)(iii) of the Property Law Act 2007 (the Act) that this Court make an order declaring that all amounts secured by the mortgage have been paid in full. Pursuant to s 111 of the Act, the order will then be able to be filed as if it were a duly executed mortgage discharge instrument.

Background

[3]    The mortgage was first advanced in 2003. It was arranged by Geoffrey Levy who at the time was a partner in the law firm of Neumegen and Company (Neumegens). A total principal sum of $100,000 was advanced to Mr Mills as a private contributary mortgage. Half of  the  total  sum  ($50,000)  was  advanced  by  Eugene Rosen, with the other half provided by the trustees of the JS Shorthouse Family Trust (the Trust) with Mr Levy being one of those trustees. It appears Mr Mills, Mr Rosen and the Trust were all clients of Neumegens at the time.

[4]    The mortgage documentation shows that the mortgage was due to be repaid in full by 8 May 2005 but this does not appear to have occurred. Mr Levy provided affidavit evidence in support of the application that while the records for the monies advanced by Mr Rosen are not complete, the records of the Trust show that nothing was owing on the Trust mortgage by 31 March 2007. However, for reasons that are not clear, and Mr Levy was not able to explain, the Trust’s half share of the mortgage was not formally discharged until 30 March 2023.

[5]    Mr Levy was able to confirm that as monies were received from Mr Mills, they were apportioned equally against the amounts owing to both Mr Rosen and to the Trust. As a result, Mr Levy stated:

The fact that the half share of the mortgage owing to the Trust was paid in full by 31 March 2007 means that it is highly likely that the half share of the mortgage owing to Mr Rosen was also repaid in full by that date (or shortly thereafter).

I have no reason to think or suspect that  there is  anything  left  owing  by Mr Mills (or, now, his estate) to Mr Rosen (or his estate).

The mortgage ought to have been discharged when it was repaid in full, and I cannot now recall why it was not. I appear to have overlooked discharging that part of the mortgage owing to the Trust when that was repaid in full in 2007, and I suspect I also overlooked discharging the remainder of the mortgage owing to Mr Rosen when that was repaid in full.

I am as clear in my mind as I can be, given the amount of time which has now passed, that although payment was delayed, the loan secured by the mortgage was paid in full by Mr Mills.

[6]    Notwithstanding this position, the estate has not been able to obtain the consent of Mr Rosen to have the mortgage removed from the title. This is because Mr Rosen passed away while in the United States in 2008.

[7]    Mr Rosen is survived by three adult sons (the sons). The estate has been in touch with the sons with a view to assisting them to obtain letters of administration in New Zealand with regard to Mr Rosen’s estate so that they could provide their consent to the removal of the mortgage. In the end however, the sons did not apply for letters of administration, indicated they did not consent to the removal of the mortgage, and although they have been emailed copies of the proceedings, they were not formally served and have taken no part in the proceedings.

Discussion

[8]    Having considered the application and supporting evidence, I am satisfied that the order sought should be made.

[9]    As a preliminary issue, I accept Ms Smith’s submission that it is not necessary for the application to be formally served on Mr Rosen’s sons given they have not

formally succeeded to Mr Rosen’s estate in New Zealand,1 and even if they had, the estate is almost certainly out of time to sue on the mortgage in any event.2

[10]   More broadly, Mr Levy’s evidence regarding the context in which the Trust was paid in full satisfies me that the monies advanced by Mr Rosen were likewise paid. Similarly, the fact that the discharge in respect of the Trust’s mortgage did not follow immediately after the repayment also provides substantial support that the reason Mr Rosen’s mortgage remains on the title was the result of it having been overlooked, rather than any failure on the part of Mr Mills to complete payment.

[11]   Taking these matters together I am satisfied that an order should be made confirming all amounts secured by mortgage 6102509.1 to Eugene Samuel Rosen have been paid in full.

[12]There is no issue as to costs.

Powell J

1      Administration Act 1969, s 70 and ss 77 - 78.

2      Section 105 of the Land Transfer Act 2017 allows a mortgage to be discharged where there is a legislative time bar. The right to receive the money is likely to have accrued more than 20 years ago, putting it outside of the longstop period provided in the Limitation Act 1950.