sec.61Circumstances when public trustee may release mortgage or encumbrance for another

### sec.61 Circumstances when public trustee may release mortgage or encumbrance for another Where the mortgagee of property— is absent from Queensland; or is dead and the mortgagee’s estate has not been administered or, so far as appears to the public trustee, there is no person currently acting in the administration of the estate; or is a person as to whom it is not known whether the person is alive or dead; or can not be found; or is a corporation or company which has ceased to exist or, in the opinion of the public trustee, has ceased to function; or is, in the opinion of the public trustee, for any other reason unable or unavailable to give a discharge of the mortgage; and the public trustee is satisfied after such inquiries as the public trustee considers reasonable that there is no person in Queensland authorised to give such a discharge, the public trustee may, if the public trustee considers it reasonable to do so, sign a memorandum of discharge (in the form approved by the public trustee) in regard to the moneys secured by the mortgage or execute a reconveyance (in the form approved by the public trustee) of any mortgaged property— if the public trustee is satisfied that the whole of the moneys payable under the mortgage have been paid; or if the whole of the moneys payable have not been paid—on payment to the public trustee of such amount as the public trustee is satisfied is the whole amount outstanding. The memorandum of discharge or reconveyance shall operate as if it had been signed by the mortgagee and as if it had been made in the form and manner (if any) required to enable the registration of the discharge of such mortgage or of the reconveyance of the mortgaged property to be made by any registering authority and shall be registrable accordingly by such authority who shall also make any other usual endorsements on any documents. The memorandum of discharge or reconveyance shall be a valid discharge of the mortgage; but, as between the mortgagor and the person entitled to payment of the moneys secured, any amount which is eventually shown by the person entitled to the payment of the moneys secured to have been due and payable at the time of signing by the public trustee of the memorandum of discharge or reconveyance (over and above the amount (if any) paid to the public trustee under this section) shall continue to be a debt due to the person entitled to the payment of the moneys secured. The production of the public trustee’s memorandum of discharge or reconveyance of the mortgaged property shall be sufficient authority to any person in possession of instruments of title to the mortgaged property to deliver the same to the mortgagor; and upon application to it the court may order any such person to deliver such instruments of title to the mortgagor on production of the public trustee’s memorandum of discharge or reconveyance and on payment of all proper charges (if any). Moneys paid to the public trustee pursuant to subsection (1) shall be held by the public trustee on trust for the mortgagee or other person entitled thereto. For the purpose of effecting registration under subsection (2) a registering authority may dispense with the production of any instrument of title or other instrument and with the publication of any notice or the doing of any other act required to enable registration to be effected. s 61 amd 1994 No. 24 s 3 (1) sch (sec.61-ssec.1) Where the mortgagee of property— is absent from Queensland; or is dead and the mortgagee’s estate has not been administered or, so far as appears to the public trustee, there is no person currently acting in the administration of the estate; or is a person as to whom it is not known whether the person is alive or dead; or can not be found; or is a corporation or company which has ceased to exist or, in the opinion of the public trustee, has ceased to function; or is, in the opinion of the public trustee, for any other reason unable or unavailable to give a discharge of the mortgage; and the public trustee is satisfied after such inquiries as the public trustee considers reasonable that there is no person in Queensland authorised to give such a discharge, the public trustee may, if the public trustee considers it reasonable to do so, sign a memorandum of discharge (in the form approved by the public trustee) in regard to the moneys secured by the mortgage or execute a reconveyance (in the form approved by the public trustee) of any mortgaged property— if the public trustee is satisfied that the whole of the moneys payable under the mortgage have been paid; or if the whole of the moneys payable have not been paid—on payment to the public trustee of such amount as the public trustee is satisfied is the whole amount outstanding. (sec.61-ssec.2) The memorandum of discharge or reconveyance shall operate as if it had been signed by the mortgagee and as if it had been made in the form and manner (if any) required to enable the registration of the discharge of such mortgage or of the reconveyance of the mortgaged property to be made by any registering authority and shall be registrable accordingly by such authority who shall also make any other usual endorsements on any documents. (sec.61-ssec.3) The memorandum of discharge or reconveyance shall be a valid discharge of the mortgage; but, as between the mortgagor and the person entitled to payment of the moneys secured, any amount which is eventually shown by the person entitled to the payment of the moneys secured to have been due and payable at the time of signing by the public trustee of the memorandum of discharge or reconveyance (over and above the amount (if any) paid to the public trustee under this section) shall continue to be a debt due to the person entitled to the payment of the moneys secured. (sec.61-ssec.4) The production of the public trustee’s memorandum of discharge or reconveyance of the mortgaged property shall be sufficient authority to any person in possession of instruments of title to the mortgaged property to deliver the same to the mortgagor; and upon application to it the court may order any such person to deliver such instruments of title to the mortgagor on production of the public trustee’s memorandum of discharge or reconveyance and on payment of all proper charges (if any). (sec.61-ssec.5) Moneys paid to the public trustee pursuant to subsection (1) shall be held by the public trustee on trust for the mortgagee or other person entitled thereto. (sec.61-ssec.6) For the purpose of effecting registration under subsection (2) a registering authority may dispense with the production of any instrument of title or other instrument and with the publication of any notice or the doing of any other act required to enable registration to be effected. - (a) is absent from Queensland; or - (b) is dead and the mortgagee’s estate has not been administered or, so far as appears to the public trustee, there is no person currently acting in the administration of the estate; or - (c) is a person as to whom it is not known whether the person is alive or dead; or - (d) can not be found; or - (e) is a corporation or company which has ceased to exist or, in the opinion of the public trustee, has ceased to function; or - (f) is, in the opinion of the public trustee, for any other reason unable or unavailable to give a discharge of the mortgage; - (g) if the public trustee is satisfied that the whole of the moneys payable under the mortgage have been paid; or - (h) if the whole of the moneys payable have not been paid—on payment to the public trustee of such amount as the public trustee is satisfied is the whole amount outstanding.