IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMERCIAL COURT
PROPERTY LIST
S ECI 2023 02864

BETWEEN:

KATHLEEN KAM-SUI ING	Plaintiff	
		
v  		
		
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION	First Defendant	
		
REGISTRAR OF TITLES	Second Defendant	

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JUDGE:	Ierodiaconou AsJ 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	10 October 2023	
DATE OF JUDGMENT:	1 November 2023	
CASE MAY BE CITED AS:	Kam-Sui Ing v Australian Securities and Investments Commission & Anor 	
MEDIUM NEUTRAL CITATION:	[2023] VSC 632	

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REAL PROPERTY — Mortgage —Loan paid in full — Failure to lodge discharge of mortgage from register — Deregistered mortgagee — Application to remove mortgage from register — Section 103(1) of the Transfer of Land Act 1958 (Vic) — s 84(2) of the Transfer of Land Act 1958 (Vic) — s 20 of the Limitations of Actions Act 1958 (Vic) — Extensive inquiries made by plaintiff’s solicitors — Registrar of Titles ordered to remove mortgage from register.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr W Rimmer of counsel for the plaintiff	City Pacific Lawyers	
			
No appearance for the Defendants			

TABLE OF CONTENTS

Introduction	1
Material Relied Upon	1
Background	2
Consideration	7
Orders	9

HER HONOUR:
Introduction
1	The plaintiff is the registered proprietor of a residential property in Balwyn.  Two mortgages were registered on the property title.  The underlying loans were paid in full in about 1993.  However, the mortgages are not recorded as discharged on the property title. By some unknown error, the discharges were not registered. In the thirty years since, both mortgagees have become defunct.  The plaintiff’s solicitors unsuccessfully attempted to find an agent to act on the mortgagees’ behalf and discharge the mortgages.  The plaintiff applied to this Court for orders that would cause the mortgages to be removed from the register.  
2	Both the Australian Securities and Investments Commission (‘ASIC’) and Registrar of Titles are defendants in this proceeding.  Both stated by written correspondence to the plaintiff’s solicitors that they did not intend to appear or participate in these proceedings.  The Registrar of Titles, Melissa Harris, added in her letter dated 12 July 2023, that she did not object to the orders sought by the applicant and proposed an amendment to the plaintiff’s proposed form of order.  With the plaintiff's agreement, I have adopted the alternative form of relief proposed by the Registrar.  This is discussed further below.
3	The application was heard on 10 October 2023.   By orders made on 11 October 2023, this Court granted the relief sought by the applicant in the form of an order that, pursuant to s 103(1) of the Transfer of Land Act 1958 (Vic) (‘TLA’), the Registrar of Titles remove both mortgages from the register.  This judgment provides the reasons for that order.
Material Relied Upon
4	The plaintiff relies on her affidavits affirmed 7 July 2023 (‘plaintiff’s affidavit’), the affidavit of her solicitor Rebecca Pugh, affirmed 6 July 2023 (‘Pugh affidavit’) and the affidavit of her solicitor Elizabeth Anne Michael sworn 26 September 2023 (‘Michael affidavit’).  Mr Rimmer of counsel provided helpful written and oral submissions on behalf of the plaintiff. 
Background
5	In January 1988 the plaintiff and her husband, Frank Kai-Sun Ing, purchased 26 Norbert Street, Balwyn, being the land described in certificate of title volume 4062 folio 247 (the ‘Property’).  They were registered as joint proprietors on the title on 19 January 1988.  Mr Kai-Sun Ing died in 2017 and following a survivorship application, the plaintiff is now registered as the sole proprietor on the title. 
6	The purchase of the Property was funded by a loan of $40,000 from Federation Building Society (‘Federation’), secured by mortgage no. N247704S,  which was registered on the Property on 19 January 1989 (the ‘Federation mortgage’).
7	On 21 March 1989 a second mortgage to Pyramid Building Society (‘Pyramid’), being mortgage no. P088995A, to secure a loan of $160,000, was registered on the Property (the ‘Pyramid mortgage’).
8	Sometime after 30 June 1992, the plaintiff believes both mortgages were paid in full. Mr Kai-Sun Ing dealt with the family finances, so the plaintiff cannot confirm this directly. 
9	The plaintiff has been unable to locate instruments of discharge for either mortgage. However, she deposes the following matters that support her belief that both loans have been fully paid and that mortgage discharges ought to have been registered: 
(a)	a letter dated 7 May 1993 from Pyramid to Mr Kai-Sun Ing confirming that a loan relating to the Property had been repaid and McKean & Park Solicitors (‘McKean Park’) had been instructed to act on their behalf (the ‘McKean Park letter dated 7 May 2023’).   The letter requested Mr Kai-Sun Ing contact McKean Park to “complete settlement arrangements”; 
(b)	a letter dated 11 May 1993 from McKean Park stating they have received instructions to act on the discharge of the mortgage of the Property, and settlement would occur at their office.  It requested Mr Kai-Sun Ing contact McKean Park to arrange settlement, and a bank cheque payable to McKean Park in the amount of $150.00 in payment of legal fees.  The subject of the letter contains the words ’Discharge of Mortgage’ and refers to both the Pyramid mortgage and the Federation mortgage (the ‘McKean Park letter dated 11 May 1993’); 
(c)	the plaintiff cannot find any evidence that any payment was either made or requested on either mortgage after May 1993; and
(d)	the plaintiff possesses the original paper certificate of title for the Property.   The document was usually retained by a registered first mortgagee and would only have been given to the plaintiff if the first mortgage had been paid.
10	Despite the evidence both the underlying loans were paid over 30 years ago, both mortgages remain registered on the Property title.
11	Both Pyramid and Federation are now defunct. Pyramid was deregistered on 8 August 2001.  Despite extensive enquiries by the plaintiff’s solicitors, the status of Federation is unknown.  ASIC states that it was a building society registered as a body corporate but that it does not have enough evidence to suggest it was deregistered or became an incorporated entity. 
12	Solicitors for the plaintiff enquired with state and federal organisations responsible for overseeing building societies.  On 12 October 2021, the plaintiff’s solicitors enquired with the Australian Prudential Regulation Authority (‘APRA’). APRA, which oversees building societies, did not exist until 1998 and has no records prior to 1997.  The plaintiff’s solicitors subsequently contacted the Commonwealth Treasury Department, who stated the Victorian Government remains responsible for any assets of building societies that were not dealt with prior to being wound up. 
13	The plaintiff’s solicitors depose to making two enquiries regarding the liquidator appointed to Pyramid: Tony Hodgson of Ferrier Hodgson. Ferrier Hodgson was acquired by consultancy firm KMPG.  On 14 April 2020, the plaintiff’s solicitors contacted KPMG and were told that no records were held pertaining to the Pyramid or Federation mortgages.  The plaintiff’s solicitors made a later inquiry with KPMG on 4 September 2023.  They spoke with James Stewart who had previously worked for Ferrier Hodgson.  He advised that both Pyramid and Federation were deregistered years ago, that all records were destroyed as more than seven years had elapsed, and that Mr Hodgson had retired 15 years ago. 
14	On 21 June 2021, the plaintiff’s solicitors wrote to ASIC enquiring about the discharge of the mortgages.  On 8 July 2021, ASIC responded that whilst they are empowered by the Corporations Act 2001 (Cth) (the ‘Corporations Act’) to discharge the Pyramid mortgage, the plaintiff should pursue discharge through the Victorian Titles Office first as it would be cheaper and more convenient.  As regards the Federation mortgage, ASIC stated they have no power to discharge the mortgage as the last known information is that Federation is a body corporate.  ASIC stated it does not have the power to deal with a deregistered body corporate.
15	On 12 October 2021, the plaintiff’s solicitors wrote to McKean Park seeking information as to whether any documentation was still held concerning the discharge of the Federation and Pyramid mortgages.  They attached the McKean Park letter dated 11 May 1993.  The same day, the plaintiff’s solicitors received a response from McKean Park confirming that a search had been conducted of their records, and nothing had been found, and that no doubt any file or correspondence would have been destroyed given the elapse of time since the retainer. 
16	On 30 November 2021, the plaintiff’s solicitors made an application to the Victoria Land Registry for removal of the mortgages pursuant to s 84(2) of the TLA.  The application was rejected.  This is because the plaintiff could not produce proof that the mortgage loans were paid.
17	On 28 April 2022 and 17 June 2022, plaintiff’s solicitors submitted research requests to the Law Institute of Victoria Library (the ‘LIV Library’).  They asked the LIV Library to research whether there was any legislation or other regulations that would enable the plaintiff to identify in which government body Federation’s assets had vested.  Upon the second request, the plaintiff’s solicitors were directed to legislation that had been repealed in 1999. 
18	On or about 16 June 2022, the plaintiff’s solicitors contacted the State Revenue Office to make enquiries about building societies, however were unable to speak to any employee with knowledge of the same.
19	On 4 July 2022, the plaintiff’s solicitors made enquiries with Consumer Affairs Victoria (‘CAV’).  They were informed that the assets of registered and liquidated building societies are not vested in CAV. 
20	On 26 July 2022, as directed by CAV, the plaintiff’s solicitors contacted the Department of Treasury and Finance (‘DTF’).  On 3 August 2023,the  plaintiff’s solicitors were informed by DTF that DTF was not the relevant government body, and DTF directed them back to the Victorian Land Registry. 
21	On 30 August 2023, the plaintiff’s solicitors made further attempts to ascertain Pyramid’s corporate history.  As Pyramid was first registered in Tasmania, they contacted a number of Tasmanian state departments.  The Department of Consumer, Building and Occupational Services and the Department of Justice could not assist and directed the plaintiff’s solicitors to Business Tasmania.  Business Tasmania directed the plaintiff’s solicitors to contact CAV.  CAV directed plaintiff’s solicitors to contact the Australian Financial Complaints Authority (‘AFCA’).  On 14 September 2023, plaintiff’s solicitors received an email from the AFCA stating that they could not pinpoint any corporate history concerning Federation or Pyramid. 
22	Exhaustive efforts to identify another organisation with the power to discharge the mortgage were fruitless.  
23	Given their inquiries had taken a Dickensian turn, the plaintiff initiated this proceeding on 30 June 2023.  Her originating motion filed 30 June 2023 sought the following relief:
2.	Declarations that:
(a)	the Court is satisfied that either –
(i)	all principal and interest due in respect of registered mortgage no. N247704S (first mortgage) affecting folio of the Register volume 4062 folio 247 (land) has been paid to the registered mortgagee formerly known as Federation Building Society; or
(ii)	section 20 of the Limitation of Actions Act 1958 applies because a period of more than 15 years has expired from the date when the mortgagee’s right to receive the principal sum of money secured by the first mortgage first accrued; 
(b)	the Court is satisfied that a discharge of the first mortgage instrument cannot be obtained because the mortgagee is, or was until being wound up and deregistered, a body corporate and the authorised agent of the mortgagee cannot be located or the agent’s signature cannot be obtained with a reasonable time; and
(c)	the plaintiff is entitled to have the Register amended under s 84(2) of the TLA to remove the recording of the first mortgage from the folio of the Register for the land.
3.	Declarations that:
(a)	the Court is satisfied that either –
(i)	all principal and interest due in respect of registered mortgage no. P088995A (second mortgage) affecting the folio of the Register for the land has been paid to the registered mortgagee formerly known as Pyramid Building Society; or
(ii)	section 20 of the Limitation of Actions Act 1958 applies because a period of more than 15 years has expired from the date when the mortgagee’s right to receive the principal sum of money secured by the second mortgage first accrued; 
(b)	the Court is satisfied that a discharge of the second mortgage instrument cannot be obtained because the mortgagee is, or was until being wound up and deregistered, a body corporate and the authorised agent of the mortgagee cannot be location, or the agent’s signature cannot be obtained within a reasonable time; and
(c)	the plaintiff is entitled to have the Register amended under s 84(2) of the TLA to remove the recording of the second mortgage from the folio of the Register for the land.
24	On 11 August 2023, the plaintiff’s originating motion was served on McKean Park lawyers, the Commonwealth of Australia Department of Treasury, Victorian Justice and Community Safety Department, Australian Prudential Regulation Authority, Victorian Treasury Department and Victorian Government Solicitor.  None sought to be heard on the matter. 
Consideration 
25	I will make orders pursuant to s 103(1) of the TLA that the Registrar of Titles cause the mortgages to be removed from the title.  It gives the Court power to direct the Registrar to amend the Register.  Section 103(1) provides:  
(1)	In any proceeding in a court relating to any land or any instrument or dealing in respect thereof if the court directs the Registrar to make any amendments to the Register or otherwise to do any act or make any recordings necessary to give effect to any judgment decree or order of the court the Registrar shall obey such direction.
26	The amendment is necessary to correct an error on the Register, namely, the undischarged mortgages.  I accept the plaintiff’s evidence.  I am satisfied that the mortgages were paid in full.  The discharges were – for reasons unknown – not registered.  
27	There was a question as to whether s 84(2) of the TLA was applicable.   It provides:
(2)	The Registrar may amend the Register to remove the recording of a mortgage on a folio or folios of the Register if it is proved to the Registrar's satisfaction that—
(a)	either—
(i)	all principal and interest due in respect of the mortgage have been paid to the person entitled to receive them; or
(ii)	section 20 of the Limitation of Actions Act 1958 applies; and
(b)	a discharge of mortgage instrument cannot be obtained because the mortgagee is—
(i)	a natural person who is deceased and has no legal personal representative who can act on the deceased's behalf, or whose signature cannot for any reason be obtained within a reasonable time; or
(ii)	a body corporate and the authorised agent of the body corporate cannot be located or the agent's signature cannot be obtained within a reasonable time.
28	Section 84(2) gives the Registrar power to make amendments.  It does not address this Court’s powers to direct the Registrar.  Accordingly, I prefer to apply s 103(1).
29	I accept it is arguable that the Court may direct the Register per s 84(2).  If I was satisfied that the Court had the power to direct the Register per s 84(2), both s 84(2)(a) and (b) would be applicable in the circumstances here.  
30	Regarding 84(2)(a) of the TLA:  as discussed, I am satisfied that the mortgage loans were paid in full.  It may be inferred that any action for recovery would be statute-barred per s 20 of the Limitation of Actions Act 1958 (Vic) given the following circumstances: the mortgages were registered in 1988 and 1989 respectively, there were no loan repayments made after mid-1993 and no demands for such were made.
31	Regarding s 84(2)(b) of the TLA: the evidence shows that despite the extensive inquiries by the plaintiff’s solicitors, mortgage discharges cannot be obtained because the mortgagees are body corporates and either their authorised agents cannot be located or their agent’s signature cannot be obtained within a reasonable time.
Orders
32	I record the ex tempore orders made.
33	Pursuant to s 103(1) of the TLA the Registrar of Titles is ordered to remove mortgages N247704S and P088995A from folio of the Register Volume 4062 Folio 247.
34	As soon as practicable after the authentication of the order, the plaintiff shall lodge an authenticated copy with the Registrar of Titles.
35	The plaintiff has liberty to apply to the Court for any further or other orders necessary or incidental to give effect to this order.