New South Wales Consolidated Acts

TRUSTEE ACT 1925 - SECT 75

75 Deceased mortgagee

(1) Where a mortgagee of land has died, the Court may make a vesting order vesting the land in such person or persons in such manner and for such estate as the Court may direct--
Provided that where the land is subject to the provisions of the Real Property Act 1900 the order may discharge the mortgage.

(2) The order may only be made if the mortgagee did not enter into possession, and the money due in respect of the mortgage has been paid to a person entitled to receive the same, or that last-mentioned person consents to any order for the reconveyance of the land.

(3) The order may be made in any of the following cases, namely--

(a) where the legal representative of the mortgagee is out of the jurisdiction of the Court or cannot be found,

(b) where the legal representative of the mortgagee, on demand made by or on behalf of a person entitled to require a conveyance of the land has stated in writing that he or she will not convey the same or does not convey the same for the space of twenty-eight days next after a proper deed for conveying the land has been tendered to him or her by or on behalf of the person so entitled,

(c) where it is uncertain as to the legal representative of the mortgagee whether he or she is living or dead,

(d) where there is no legal representative of a mortgagee who has died intestate as to the land, or where the mortgagee has died and it is uncertain who is the mortgagee's legal representative,

(e) where the Court might have made a vesting order if this Act had not been passed.

(3A) With such modifications as may be necessary, subsections (1A), (1B) and (1C) of section 98 of the Conveyancing Act 1919 apply to and in respect of an order under this section and the mortgage to which it relates and so apply--

(a) as if a reference in those subsections to a determination by the court were a reference to an order under this section, and

(b) as if the words ", except to the extent that it is extinguished or reduced by the operation of this section," were omitted from subsection (1C) of that section.

(4) The fact that the order is founded or purports to be founded on an allegation of the existence of any of the matters mentioned or referred to in subsection (3) shall be conclusive evidence of the matter in any Court upon any question as to the validity of the order.

(5) This section shall not prevent the Court from directing a reconveyance or the payment of costs occasioned by any such order if improperly obtained, or from making a further vesting order.