The trustee of property of a deceased sought a determination under section 98(1) of the Conveyancing Act 1919 that all amounts due under an old mortgage had been paid and a certificate be granted to that effect and an order that the trustee be authorised to sell the land by private contract. The will provides for sale by the trustee by public auction. The property is a laneway between buildings.
The court held that the requirements of section 98 had been met because the relevant debt appears to have been repaid in 1883 and both the mortgagee and mortgagor are dead. The court also found that sale could be effected privately by the trustee, so varying their powers pursuant to section 81 of the Trustee Act 1925 because an auction would occasion cost, expense and inconvenience.