Supreme Court New South Wales Medium Neutral Citation: The Trust Company (Australia) Limited as trustee of the Estate of William Redman [2011] NSWSC 755 Hearing dates: 19 July 2011 Decision date: 19 July 2011 Before: Nicholas J Decision: 1 A determination under section 98(1) of the Conveyancing Act 1919 that all amounts due under mortgage dated 3rd November 1879 number 298A book 196 (as transferred by assignment of mortgage dated 11th May 1883 number 369 book 270) have been paid. 2 An officer of this court prescribed by the rules of court give a certificate that section 98 of the Conveyancing Act 1919 has been complied with in relation to mortgage dated 3rd November 1879 number 298A book 196 (as transferred by assignment of mortgage dated 11th May 1883 number 369 book 270) the court having determined that all amounts due under the mortgage have been repaid. 3 The Plaintiff be authorised to sell to London Fashions Pty Limited by private contract the land forming part of the Estate of the late William Redman being Lot 1 in Deposited Plan 1156413 for the sum of $58,028 upon the terms and conditions set out in the contract for sale between the plaintiff and London Fashions Pty Limited dated 8th July 2011. Catchwords: EQUITY - Proceedings ex parte - determination that amounts due under mortgage had been paid - variation of terms of trust - Conveyancing Act s98(1); Trustee Act s 81 Legislation Cited: Conveyancing Act 1919 Trustee Act 1925 Cases Cited: Riddle v Riddle (1952) 85 CLR 202 Category: Principal judgment Parties: The Trustee Company (Australia) Limited as trustee of the Estate of William Redman Representation: Counsel P Walsh (Plaintiff) Ex parte Solicitor Church & Grace (Plaintiff) Ex parte File Number(s): 11/232900 Judgment 1HIS HONOUR : Before me is the plaintiff's summons filed today, in which the following relief is claimed: 2. A determination under section 98(1) of the Conveyancing Act 1919 that all amounts due under mortgage dated 3 rd November 1879 number 298A book 196 (as transferred by assignment of mortgage dated 11 th May 1883 number 369 book 270) have been paid. 3. An order that an officer of this court prescribed by the rules of court give a certificate that section 98 of the Conveyancing Act 1919 has been complied with in relation to mortgage dated 3 rd November 1879 number 298A book 196 (as transferred by assignment of mortgage dated 11 th May 1883 number 369 book 270) the court having determined that all amounts due under the mortgage have been repaid. 4. An order that the Plaintiff be authorised to sell to London Fashions Pty Limited by private contract the land forming part of the Estate of the late William Redman being Lot 1 in Deposited Plan 1156413 for the sum of $58,028 upon the terms and conditions set out in the contract for sale between the plaintiff and London Fashions Pty Limited dated 8 th July 2011. 2The evidence filed in support of the application under s 98 Conveyancing Act 1919 consists of the affidavit of James Brendan Aubusson of 18 July 2011 and of Robert David Williamson of 15 July 2011. 3The evidence has been put before me in some detail by Mr Walsh, counsel for the plaintiff, and I have had the benefit of his written submissions, which will remain with the file. 4I am satisfied on the material that the property which now may be referred to as Lot 1 DP 1156413 is subject to a mortgage in respect of which, as the evidence shows, the last dealing or notation was the registration on 5 February 1919 of the retirement of one Charles Edward Foxhall, trustee of the will of William Redman. Since then, the evidence makes plain, the property has remained burdened by a mortgage about which there is no indication of any discharge or as to the repayment of the moneys secured by it. 5However, the relevant debt secured by the mortgage to one Arthur Mansfield Allen in the sum of 2000, appears to have been recouped during June and July 1883, by the sale of various lots in what was described as the Redman subdivision, for the total sum of 5671 7s 6d. 6The evidence makes plain, and I find, that the requirements of s 98 are met, and the entitlement to the relief claimed under the provisions of that section is established. In the circumstances, s 98(1)F applies to the effect that the mortgage has been repaid, thereby enabling the plaintiff to obtain from the Court certification to that effect. 7The relief claimed is sought in prayers 2 and 3 of the summons. Accordingly, I make a determination in terms of prayer 2 and an order in terms of prayer 3. 8It will follow that the matter should be referred to the Registrar for the issue of a certificate under section 98(1)F. 9The further application was for relief in terms of prayer 4 of the summons which requires the application of s 81 of the Trustee Act 1925. This is because the will provides for sale by the trustee of the residue of the real property of William Redman by public auction. 10The evidence shows that there is a pressing need for the sale of the property, which, in its present configuration, appears to be a laneway between two buildings. It is the subject of a contract for sale, which is conditional upon the plaintiff as vendor obtaining the relief sought in these proceedings. 11I am entirely satisfied on the evidence that the costs, expense, and general inconvenience of requiring this particular strip of land to be put up for sale by public auction, in all of the circumstances, would be quite inexpedient. 12In other words, I am satisfied that it is both desirable and suitable, in the circumstances of the case (see Riddle v Riddle (1952) 85 CLR 202, page 222) that the property should be sold by private treaty and that the contract between the plaintiff and the purchaser, pursuant to which the property is for sale at the sum of $58,028, should proceed to enable that to be done. 13In all of the circumstances, the order sought in terms of paragraph 4 of the prayer 4 of the summons should be made. 14Accordingly, I make orders in terms of the short minutes of order initialled by me and dated today. I direct that these orders be entered forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2011