Application of Simon Richard Bochenek; re Estate of Late Betty Elaine Bochenek

Judgment ( ex tempore )

1. [1]

   HIS HONOUR: In applications under (NSW) Conveyancing Act 1919, s 98, the mortgagee named in the mortgage is usually not joined as a defendant [see A G Nevill and A W Ashe, Equity Proceedings With Precedents (New South Wales), (1981) Butterworths, p 1028]. I will therefore delete the name of the defendant from the draft summons, and the proceedings will be entitled Application of Simon Richard Bochenek; Re Estate of the Late Betty Elaine Bochenek .

2. [2]

   I am satisfied on the evidence filed and read that the mortgagee of the land comprised in folio identifier x/xxxxxx, situate at and known as xx xxxx xxxxx, xxxxxxx in the State of New South Wales, under mortgage book 2686 number 175 - namely, Leo Vaughn Connelly - cannot be found. On that finding, the jurisdiction under Conveyancing Act, s 98, is triggered.

3. [3]

   The circumstances that the mortgage appears to have secured vendor finance of about 300 pounds in 1964 for a term of two years, that there has been no word of any demand or contact or claim by the mortgagee since, and that there has been no response to the notice of intended distribution of the deceased's estate, persuade me that no amount is outstanding under the mortgage.

4. [4]

   Upon the undertaking of Nigel Ross to pay the appropriate filing fees, I grant leave to the plaintiff to file a summons in the form initialled by me, dated this day and placed with the papers. I direct that the summons be returnable instanter.

5. [5]

   Pursuant to Conveyancing Act, s 98(1), I determine that all amounts due under mortgage book 2686 number 175 have been paid.

6. [6]

   In the circumstances, there is no utility in fixing any amount as to costs.

7. [7]

   I refer the matter to the registrar for the issue of a certificate under s 98(1F).