BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION v. GRAHAM HARRY FOUNTAIN

BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION v. GRAHAM HARRY FOUNTAIN

The Court allowed the appeal to set aside the default summary judgment because the defendant's "premature writ" defence had a real prospect of success on the evidence and the plaintiff's inaccurate notice of assignment materially induced delay so that prejudice could not be attributed mainly to the defendant; merits therefore outweighed delay and the judgment entered 4 February 1985 was set aside.

Citation
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION v. GRAHAM HARRY FOUNTAIN
Parties
Plaintiff (respondent): BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION; Defendant (appellant): GRAHAM HARRY FOUNTAIN
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
12 April 1990
Case Number
CACV156/1989
Procedural Posture
Civil Appeal (application Under Order 14 Rule 11 to Set Aside Summary Judgment) / Court of Appeal Hearing From Dismissal of Application to Set Aside Summary Judgment and for Stay
Outcome
Appeal allowed in part; summary judgment dated 4 February 1985 set aside; defendant's separate appeal on stay dismissed
Legal Topics
Summary Judgment, Setting Aside Default Judgment, Guarantee (suretyship), Assignment of Debt, Service of Demand, Delay and Prejudice, Enforcement/registration of Foreign Judgment
Source Language
EN
Civil Procedure Contract Law Banking Law Conflict of Laws Summary Judgment Setting Aside Default Judgment Guarantee (suretyship) Assignment of Debt +3 more

Case Brief

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Parties

BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION

Plaintiff (respondent)

GRAHAM HARRY FOUNTAIN

Defendant (appellant)

Procedural Posture

Civil Appeal (application Under Order 14 Rule 11 to Set Aside Summary Judgment) / Court of Appeal Hearing From Dismissal of Application to Set Aside Summary Judgment and for Stay

Legal Issues

  1. 1 Whether the summary judgment obtained on 4 February 1985 should be set aside under Order 14 rule 11
  2. 2 Whether the guarantee was void or unenforceable because blanks were left when signed
  3. 3 Whether the Assignment discharged the guarantor

Ratio Decidendi

The Court allowed the appeal to set aside the default summary judgment because the defendant's "premature writ" defence had a real prospect of success on the evidence and the plaintiff's inaccurate notice of assignment materially induced delay so that prejudice could not be attributed mainly to the defendant; merits therefore outweighed delay and the judgment entered 4 February 1985 was set aside.

Court Disposition

Appeal allowed in part; summary judgment dated 4 February 1985 set aside; defendant's separate appeal on stay dismissed

Orders

  • Set aside the summary judgment entered on 4 February 1985
  • Dismiss the defendant's appeal against refusal of a stay