Executors of the Estate of Feeney

[2021] NZHC 1491

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-238

[2021] NZHC 1491

IN THE MATTER OF

an Originating Application under

Section 109 Property Law Act 2007 for redemption of a mortgage where the
mortgagee cannot be found or is dead

APPLICANTS

CHRISTOPHER JOHN HARDIMAN MARY AGNES FEENEY SILVESTER

Applicants as Executors of the Estate of TERESA JOAN FEENEY

Hearing:	On the papers
Appearances:	G M Downing for the Applicants
Judgment:	22 June 2021

JUDGMENT OF GRICE J

[1]                 Mrs Teresa Joan Feeney died on 8 July 2009 leaving her estate to be divided among her children.

[2]                 Mrs Feeney had been resident in a rest home for some time. The children had been paying the outgoings as well as contributing to the rest home costs. The main asset in the estate is a house that Mrs Feeney owned in Melrose, Te Whanganui-a-Tara Wellington, which has a present value, according to the rating valuation, of $650,000. A real estate assessment obtained at the end of 2020 indicated it could sell within the

$800,000 to $900,000 range. It is not rented out as it does not meet the new standards

EXECUTORS OF THE ESTATE OF TERESA JOAN FEENEY [2021] NZHC 1491 [22 June 2021]

for rentable accommodation. Therefore, the estate is in debt to the children who have financed the outgoings of the house and continue to do so.

[3]                 The administration of the estate and sale of the house has been delayed because Mrs Feeney had a mortgage with the Hibernian Credit Union, which has since been wound up. The solicitors have tried, through discussions with the Companies Office, to take steps to restore the credit union to the register but the liquidation has been completed and the liquidators have provided their final report. Unfortunately, before they wound it up the liquidators failed to discharge Mrs Feeney’s mortgage.

[4]                 A letter exists, dated 3 December 2012, which responded to an enquiry made by Mrs Feeney advising that the liquidators (PricewaterhouseCoopers) would send an instruction to fully discharge the mortgage in “the next few weeks”. The Hibernian Catholic Benefit Society  (Society)  returned  the  original  certificate  of  title  to  Mrs Feeney.

[5]                 The liquidators did not provide that discharge instruction. The position now is that the liquidators are functus officio and the mortgage remains on the title.

[6]                 A search of Mrs Feeney’s belongings found a statement from the Society indicating that there was $202.26 owing on 1 September 2000. A handwritten entry by Mrs Feeney and a receipt indicates that she paid $119.48 on 23 November 2000 and beside this is written “final payment”.

[7]                 Under s 109 of the Property Law Act 2007, the Court may make an order discharging a mortgage if a person who is entitled to receive, or has received payment of the amount secured by the mortgage is dead, cannot be found, or is out of the jurisdiction.

[8]                 In my view the liquidation and winding up of the credit union means that the mortgagor cannot be found. The company no longer exists and on that basis an order for removal of the mortgage is able to be made.

[9]                 In view of the letter from the Society and the evidence as to the repayment of the mortgage, I am satisfied that the mortgage B642151.1 (in favour of the trustees for the time being of the New Zealand Hibernian Credit Union) should be removed from record of title WN475/22 owned by Teresa Joan Feeney.

[10]The order for removal is made accordingly.

Grice J

Solicitors:
McFadden McMeeken Phillips, Nelson for the applicants.