NATIONAL BANK OF CANADA (BANQUE NATIONALE DU CANADA) v. ROGERIO LAM SOU FUNG

NATIONAL BANK OF CANADA (BANQUE NATIONALE DU CANADA) v. ROGERIO LAM SOU FUNG

Leave to defend was correctly refused because the appellant had signed an acknowledgement consenting to the disposal (precluding complaint) and the proposed defence — that the mortgagee's alleged delay/refusal caused the loss — was legally untenable and did not disclose a reasonably arguable case; the purchaser's...

Source-derived case information.

Citation
NATIONAL BANK OF CANADA (BANQUE NATIONALE DU CANADA) v. ROGERIO LAM SOU FUNG
Parties
Respondent/plaintiff: National Bank of Canada; Appellant/defendant: Rogerio Lam Sou Fung
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
6 November 1984
Case Number
CACV116/1984
Procedural Posture
Civil Appeal / Appeal From Refusal of Leave to Defend in Order 14 Summary Judgment Application (judge in Chambers Reversed Master's Leave)
Outcome
Appeal dismissed; order below refusing leave to defend and granting summary judgment affirmed
Legal Topics
Summary Judgment, Guarantee, Mortgagee Consent, Duty of Care, Set Off, Leave to Defend, Negligence, Estoppel, Acknowledgement
Source Language
en
Mortgage Law Contract Tort Equity Civil Procedure Summary Judgment Guarantee Mortgagee Consent +6 more

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Summary, issues, holding and outcome

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Parties

National Bank of Canada

Respondent/plaintiff

Rogerio Lam Sou Fung

Appellant/defendant

Procedural Posture

Civil Appeal / Appeal From Refusal of Leave to Defend in Order 14 Summary Judgment Application (judge in Chambers Reversed Master's Leave)

Legal Issues

  1. 1 Whether a guarantor may set off loss allegedly caused by a mortgagee's refusal or delay to consent to an assignment of mortgaged property
  2. 2 Whether a mortgagee owes a duty of care to mortgagor/guarantor when considering consent to an assignment
  3. 3 Whether the guarantor's signed acknowledgement and consent precludes a defence to the bank's claim

Ratio Decidendi

Leave to defend was correctly refused because the appellant had signed an acknowledgement consenting to the disposal (precluding complaint) and the proposed defence — that the mortgagee's alleged delay/refusal caused the loss — was legally untenable and did not disclose a reasonably arguable case; the purchaser's withdrawal (subject to contract) and market factors caused the loss, not any actionable conduct by the Bank.

Court Disposition

Appeal dismissed; order below refusing leave to defend and granting summary judgment affirmed

Orders

  • Appeal dismissed
  • Order of Judge in Chambers refusing leave to defend (summary judgment) affirmed