IN THE MATTERof an application by Ross Victor Cowan and Robyn Ann Cowan under s 109 of the Property Law Act 2007 to discharge amortgage

[2024] NZHC 2909

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002450 [2024] NZHC 2909

UNDER

Part 19 of the High Court Rules 2016

IN THE MATTER

of an application by Ross Victor Cowan and Robyn Ann Cowan under s 109 of the Property Law Act 2007 to discharge a

mortgage

Hearing:	On the papers
Counsel:	T Shah for Applicants
Judgment:	8 October 2024

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 8 October 2024 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.

.…………………………..

Registrar/Deputy Registrar

Solicitors:
Neilsons Lawyers, Auckland

Re R V and R A COWAN [2024] NZHC 2909 [8 October 2024]

[1]                   This matter came to me as Duty Judge. Mr and Mrs Cowan apply for orders without notice discharging the mortgage on their property at 406 Whangaparaoa Road, Auckland. They rely on ss 109 and 110 of the Property Law Act 2007.

[2]                   The application is supported by an affidavit from Mr Railey who was the solicitor acting for the Cowans on the relevant transactions. He outlines that the Cowans settled the purchase of this property in June 1987 with the use of a temporary advance from Commercial and Mortgage Nominees Ltd (CMN). This was short term finance because the Cowans had purchased that property prior to settling the sale of their existing home and needed funds to settle.

[3]                   The solicitors’ trust statement and prior default notice annexed to Mr Railey’s affidavit shows that the CMN mortgage was repaid in February 1989. The borrowing was replaced with the raising of a long-term loan from another lender, together with a small family loan. For reasons unknown, the CMN mortgage was not discharged from the title following this repayment and remains registered as dealing B672860.

[4]                   Mr Railey’s investigations have shown that CMN failed to pay its annual returns from 1989 and it was removed from the Companies Register on 3 July 1991. It is understood that the director of CMN has since died.

[5]In the above circumstances:

(a)I am satisfied this is an appropriate matter to deal with on a without notice basis.

(b)Mr Railey’s affidavit and the documents annexed satisfy me in terms of r 15.9 of the High Court Rules 2016 that the applicants’ cause of action under s 110(a)(iii) for an order discharging the mortgage is established.

(c)Accordingly, it is appropriate that an order be made under s 110(a)(iii) discharging that mortgage.

Orders

[6]I make the following orders:

(a)That this application may proceed without notice.

(b)That     the    mortgage     on    the    Cowans’    property    situated    at 406 Whangaparaoa Road, Auckland is to be discharged.

Anderson J