Wilson

[2023] NZHC 2393

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2023-488-80

[2023] NZHC 2393

IN THE MATTER OF

an application to discharge a mortgage

AND IN THE MATTER OF

an application to dispense with service

PURSUANT

to Part 19 High Court Rules and pursuant to s 105 Land Transfer Act 2017 and s 109 Property Law Act 2007

BETWEEN

DAVID LAMBERT WILSON and PATRICIA ANN WILSON

Applicants

Hearing:	On the papers
Counsel:	D M O’Neill for Applicants
Judgment:	30 August 2023

JUDGMENT OF LANG J

[application for order discharging a mortgage under s 109(1)(a) of the Property Law Act 2007]

This judgment was delivered by Justice Lang On 30 August 2023 at 11.30 am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Fry Wilson Todd, Huntly/D M O’Neill, Hamilton

Re D L & P A Wilson [2023] NZHC 2393 [30 August 2023]

[1]                 Mr and Mrs Wilson seek an order under s 109(1)(a) of the Property Law Act 2007 (the Act) discharging a mortgage currently registered over their property. The mortgage secures an advance of $2,000 that they obtained from the mortgagees, Mr and Mrs Richard and Nellie Evans, in 1975.

[2]                 One of the applicants, Mrs Patricia Wilson, deposes that she and her husband repaid the loan in late 1975. Unfortunately, however, no steps were taken at that time or subsequently to have the mortgage discharged. They now wish to sell the property so they can move into a retirement complex. They cannot do so until the mortgage is removed from the title.

[3]                 Efforts have now been undertaken to locate Mr and Mrs Evans without success. This is not surprising because it is virtually inevitable that they are now deceased.

[4]                 The evidence from Mrs Wilson satisfies me that the mortgage has been repaid and that Mr and Mrs Evans are more than likely deceased. Jurisdiction therefore exists under s 109(1)(a) of the Act to make an order discharging the mortgage. I am satisfied that it is appropriate to make such an order in this case.

[5]                 I make an order under s 109(1)(a) of the Property Law Act 2007 discharging mortgage number 402889.4 which is currently registered over the land described in identifier NA20D/1461, North Auckland Registry.

[6]                 I make a further order granting the applicants leave to commence the present proceeding by way of originating application and dispensing with service of the proceeding on any other person.

Lang J