MARJORY THOMSON MARTIN AND FRANK NOEL NICHOLL

[2024] NZHC 2777

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2024-488-69

[2024] NZHC 2777

BETWEEN

MARJORY THOMSON MARTIN

Applicant

AND

FRANK NOEL NICHOLL

Defendant

Judgment:

(On the papers)

26 September 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 26 September 2024 at 10 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Henderson Reeves (Whangārei) for Applicant

MARTIN v NICHOLL [2024] NZHC 2777 [26 September 2024]

[1]Mr John George Rosie died on 29 December 2023.

[2]An asset of his estate is real property situated at 321 Molesworth Drive,

Mangawhai Heads.1

[3]        The property is subject to Mortgage B842789.2. The mortgagee is Frank Noel Nicholl. Mr Nicholl sold the property to Mr Rosie (and his wife, who pre-deceased him). The transfer and the mortgage were registered contemporaneously on 23 June 1988.

[4]        Mr Nicholl cannot be  found.  Accordingly,  Ms  Martin,  the  executrix  of Mr Rosie’s estate, applies for an order discharging the mortgage.

[5]        The jurisdiction to discharge the mortgage is conferred by s 105(1) of the Land Transfer Act 2017:

The court may, on application by the registered owner of an estate or interest in land that is subject to a registered mortgage, order that the mortgage is discharged if the court is satisfied that—

(a)a proceeding by the mortgagee for payment of money secured by the mortgage is barred by the Limitation Act 2010 or any other enactment; and

(b)except for an application under subpart 1 of Part 4, any other proceeding by the mortgagee for a remedy in respect of the mortgaged land would also be barred by the Limitation Act 2010 or any other enactment.

[6]        I made an order2 for substituted service by advertisement in the public notice section of three editions of the NZ Herald. The advertising occurred on 21 August 2024, 22 August 2024 and 23 August 2024.3

[7]        I am satisfied that the applicant has made out the ground for the discharge of the mortgage.

1      The legal description is Lot 6, Deposited Plan 57131, Identifier NA11C/509.

2      By Minute of 13 August 2024.

3      Affidavit of Gaylene Ritmeester confirming substituted service affirmed 13 September 2024.

[8]        The principal sum was $5,000 and it was required to be repaid by 12 equal consecutive monthly payments of $416.66. There was a nil ordinary interest rate.

[9]Almost certainly, this was vendor finance which has been repaid.

[10]      The mortgagee, Mr Nicholl, cannot be found and he has not responded to the advertisements lodged in the NZ Herald.

[11]      If, for some reason, the mortgage sum, or any component, was not paid it is self-evident that the Limitation Act 2010 bars any proceeding for payment of money secured by the mortgage or any other proceeding for some other remedy.4

Decision

[12]The application is granted.

[13]      I make an order that mortgage B842789.2 registered against Lot 6, Deposited Plan 57131, Identifier NA11C/509 is discharged.

[14]The applicant does not seek costs and so I make no order as to costs.

[15]      The application was scheduled for call in the List on 27 September 2024. I vacate the call.

Brewer J

4      I rely on the affidavit of the applicant sworn on 5 July 2024.