Cheng v. Luu
The October 28, 1999 document signed by the appellant was an enforceable promissory note supported by consideration because the signature benefited the family restaurant venture; non est factum failed due to the appellant's carelessness; pre-judgment interest and costs were properly awarded, therefore the appeal is...
Source-derived case information.
- Citation
- C44079
- Parties
- Plaintiff (respondent): Ji Jiang Cheng; Defendant (appellant): Yen Trang Luu
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 3 November 2006
- Procedural Posture
- Civil Appeal / Court of Appeal Decision (appeal Dismissed)
- Outcome
- Appeal dismissed
- Legal Topics
- Promissory Note, Consideration, Non Est Factum, Pre Judgment Interest, Costs
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ji Jiang Cheng
Plaintiff (respondent)
Yen Trang Luu
Defendant (appellant)
Procedural Posture
Civil Appeal / Court of Appeal Decision (appeal Dismissed)
Legal Issues
- 1 Whether the October 28, 1999 document was an enforceable promissory note
- 2 Whether there was consideration supporting the promissory note
- 3 Whether the defence of non est factum applied
Ratio Decidendi
The October 28, 1999 document signed by the appellant was an enforceable promissory note supported by consideration because the signature benefited the family restaurant venture; non est factum failed due to the appellant's carelessness; pre-judgment interest and costs were properly awarded, therefore the appeal is dismissed.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
- Costs to respondent of $3,500 inclusive of GST and disbursements
Full Case Text
Judgment text and source record
1 paragraphs
Cheng v. Luu Collection Decisions of the Court of Appeal Date 2006-11-03 Docket numbers C44079 Judges Laskin, John Ivan; MacPherson, James C.; Lang, Susan Elizabeth Subject Civil Decision Content DATE: 20061102 DOCKET: C44079 COURT OF APPEAL FOR ONTARIO RE: JI JIANG CHENG (Plaintiff (Respondent)) – and – YEN TRANG LUU (Defendant (Appellant)) BEFORE: LASKIN, MacPHERSON and LANG JJ.A. COUNSEL: Richard P. Quance for the appellant Tina Lee for the respondent HEARD & ENDORSED: November 2, 2006 On appeal from the judgment of Madam Justice Alison Harvison Young of the Superior Court of Justice dated August 26, 2005. APPEAL BOOK ENDORSEMENT [1] Even assuming that the appellant’s argument has merit with respect to the earlier agreement, we see no basis to interfere with the trial judge’s finding that the October 28, 1999 document, signed by the appellant, was an enforceable promissory note. [2] Although the appellant argues on appeal that there was an absence of consideration for the promissory note, the trial judge concluded otherwise on the basis of the family relationship between and among the two families involved in the restaurant business. The father’s act of signing the promissory note at the request of his daughter was to benefit his son and the family restaurant venture. In that way, there was consideration sufficient to support the note. [3] On the issue of non est factum, the appellant chose not to read the document. Because of his carelessness, he cannot rely on this defence. [4] We see no reason to interfere with the award of pre-judgment interest. Even though the respondent reduced his claim to come within the simplified rules, he remains entitled to pre-judgment interest. [5] The appeal is dismissed. Costs to the respondent in the amount of $3,500 inclusive of GST and disbursements.