Watkins v Veldman

[2017] NZHC 562

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2017-454-5 [2017] NZHC 562

IN THE MATTER OF

ss 109 and 110 of the Property Law Act

2007

BETWEEN

DOREEN RUTH WATKINS Plaintiff

AND

ALPHONSUS GERARDUS GULIELMUS VELDMAN, ACHTEN HENDRINA MARIA VELDMAN, JOHN JAMES BEATTIE AND SUSAN JOY BEATTIE

Defendants

Teleconference:	27 March 2017 at 2.45 pm
Appearances:	T C Montague for the plaintiff No appearance for the defendants
Judgment:	27 March 2017

JUDGMENT OF MALLON J

[1]      Doreen Watkins seeks an order under s 110(a)(iii) of the Property Law Act

2007 declaring that all amounts secured by a mortgage have been paid in full.

[2]      The  relevant  mortgage  is  Memorandum  of  Mortgage  537949.5.     It  is registered against land owned by Mrs Watkins (WN854/6).  The mortgage secured a

$4,000 debt which was borrowed by Mrs Watkins and her late husband in or about

1984.   The mortgage was a contributory mortgage arranged by Mr Hugh Lowe, a solicitor at that time with Craig, Bell and Bond.  The mortgagees were Alphonsus Gerardus Gulielmus Veldman, Achten Hendrina Maria Veldman, John James Beattie

and Susan Joy Beattie.

WATKINS v VELDMAN [2017] NZHC 562 [27 March 2017]

[3]      The mortgage was duly repaid.   By letter dated 13 March 1985 Mr Lowe wrote to Mr and Mrs Watkins confirming that the final payment had been made on

26 November 1984.  The letter advised that a discharge of mortgage had been drawn and executed. The letter requested a further payment of $86 to finalise the discharge. Mr and Mrs Watkins paid that sum on 27 June 1985.

[4]      Unbeknownst  to  Mr  and  Mrs  Watkins,  Mr Lowe  did  not  account  to  the mortgagees for the repayments Mr and Mrs Watkins made nor did he register the discharge.  He has left New Zealand and is understood to be living somewhere in Australia, Papua New Guinea or possibly Vanuatu.  Mrs Watkins did not learn of this until her husband’s death.  She seeks an order from the Court to regularise matters, so that she does not leave the problem with her children after her death.

[5]      Mrs  Watkins’ solicitor  has  been  unable  to  serve  Mr  and  Mrs  Veldman. Inquiries have been made with the Department of Internal Affairs, the Embassy of the Netherlands in Wellington and “Ancestry Australia”.  They have also searched the White Pages, the Electoral Rolls, Facebook, the death notices for the Dominion Post and the New Zealand Herald, and the Wellington City Council and Kapiti Coast District Council cemetery records.  It is thought that Mr and Mrs Veldman may have left New Zealand and returned to Holland via Australia.  Mrs Watkins does not know them and does not know whether they are still alive.

[6]      Mr Beattie has filed an affidavit.  He accepts that Mr and Mrs Watkins repaid the loan and has always accepted they did so.  He confirms that Mr Lowe failed to account   to   him   for   the   repayment   and   understands   Mr Lowe   subsequently absconded.  He consents to a formal release of the mortgage.

[7]      Mr Beattie’s wife has died.  The executor of her estate is Douglas Rowan, a solicitor with Cullinane Steele.  He consents to the declaration sought.  Mrs Beattie’s interest in the mortgage was held jointly with Mr Beattie.  On her death her interest passed to the remaining mortgagees by survivorship.

[8]      On the evidence before me I am satisfied it is appropriate to make an order under Rule 6.8 of the High Court Rules dispensing with service of the originating

application on Mr and Mrs Veldman.  I am also satisfied that the amounts secured by the mortgage have been paid in full and that it is appropriate to make a declaration to that effect under s 110(a)(iii) of the Property Law Act 2007.  I make a declaration accordingly.

Mallon J