New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 98

98 Facilitation of redemption in case of deceased, absent or unknown mortgagees

(1) Where land is subject to a mortgage and the person empowered to reconvey the land or, where the land is under the provisions of the Real Property Act 1900 , to execute in respect thereof a discharge referred to in section 65 of that Act, is out of the jurisdiction, cannot be found or is unknown, or if it is uncertain who the person is, or if the person is dead and no personal representative has been or is likely to be appointed for the person or it is uncertain who the personal representative is, the court may, upon the application of the person for the time being entitled to redeem the mortgaged land, determine in such manner as the court thinks fit whether or not all amounts due under the mortgage have been paid and, if not, the amount thereof outstanding.

(1A) Where the court has made a determination under subsection (1) in relation to a mortgage, the mortgagee is, to the extent provided by this section, liable to pay the costs of the applicant incurred in obtaining the determination, any rule of law or stipulation to the contrary notwithstanding.

(1B) The amount of costs that a mortgagee is liable under subsection (1A) to pay in respect of a determination under subsection (1) is the amount by which--

(a) the amount certified by the court when making the determination as reasonable costs of the applicant incurred in obtaining the determination,

exceeds--

(b) the reasonable costs that would have been incurred by the mortgagee in discharging the mortgage, whether or not they would have been payable by the mortgagee.

(1C) The amount of costs that a mortgagee is liable, under subsection (1A), to pay to an applicant shall, except to the extent that it is extinguished or reduced by the operation of this section, be deemed to be a specialty debt recoverable by the applicant and incurred at the time of the making of the determination to which the costs relate.

(1D) Where the court determines under subsection (1) that the amount due under a mortgage has not been repaid and the amount thereof determined by the court to be outstanding exceeds the amount of costs calculated under subsection (1B) in respect of the determination, the applicant for the determination may pay into court the difference between the amount so determined and the amount so calculated and, upon the amount of that difference being so paid--

(a) the amount due under the mortgage at the time of the payment into court shall be deemed to have been reduced by the amount so calculated and by the amount paid into court, and

(b) the debt owing under subsection (1C) by the mortgagee to the applicant shall be deemed to have been extinguished.

(1E) Where the court determines under subsection (1) that the amount due under a mortgage has not been repaid and the amount thereof determined by the court to be outstanding is equal to or less than the amount of costs calculated under subsection (1B) in respect of the determination--

(a) the amount due under the mortgage at the time of the determination shall be deemed to have been reduced by the amount so determined,

(b) the debt owing under subsection (1C) by the mortgagee to the applicant for the determination shall be deemed to have been reduced by the amount so determined, and

(c) for the purposes of subsection (1F), the court shall be deemed to have determined that the amount due under the mortgage has been repaid.

(1F) Where--

(a) the court determines under this section that the amount due under a mortgage has been repaid, whether by the operation of paragraph (c) of subsection (1E) or otherwise, or

(b) payment into court is made under subsection (1D),

an officer of the court prescribed by rules of court may give a certificate to the effect that this section has been complied with in relation to the mortgage in respect of which the determination was made or the money paid into court.

(2) In favour of a purchaser of land comprised in a mortgage referred to in a certificate given under subsection (1F), the certificate operates as a discharge of the land from the amount due under the mortgage, and as a deed of conveyance, in the same manner as a memorandum of discharge operates under subsection (3) of section 91.

(3) The Court shall order an amount paid into court under subsection (1D) to be paid to the person entitled, upon the application of such person, and on proof that the deed or instrument of mortgage, and all the title deeds which were delivered by the mortgagor to the mortgagee on executing the same, or in connection therewith, have been delivered up to the person by whom the amount was so paid into court, or the person's executors, administrators, or assigns, or have been otherwise satisfactorily accounted for.

(3A) A determination by the court under this section with respect to a mortgage is not, as between persons referred to in subsection (1), conclusive as to--

(a) whether or not an amount is due under the mortgage at the time of the determination, or

(b) whether the amount determined by the court to be due under the mortgage is the amount so due at the time of the determination, and except to the extent of the operation of paragraph (a) of subsections (1D) and (1E), and of subsection (2), that determination does not prejudice any right conferred by the mortgage for the recovery of an amount due thereunder.

(4) This section, subsection (2) excepted, applies to and in respect of mortgages under the Real Property Act 1900 .

(4A) The Registrar-General is to make recordings in the Register kept under the Real Property Act 1900 as the Registrar-General considers appropriate to give effect to the discharge of the mortgage if--

(a) an application is made to the Registrar-General in the form approved under that Act, and

(b) a certificate under subsection (1F) relating to a mortgage under that Act is produced to the Registrar-General, and

(c) the fee prescribed under that Act is paid.