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Citation
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Judgment date
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| July 2003 |
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A district magistrate erred by dismissing an employment claim as res subjudice and for lack of jurisdiction; matter should have been stayed or referred.
Employment law — procedure — res subjudice — where similar proceedings pending in another court the correct remedy is stay or referral, not summary dismissal; Employment Ordinance s.133(1) — Magistrates' jurisdiction in employer-employee disputes; Employment Ordinance s.143 — exemption from court fees; costs on appeal — each party to bear own costs.
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31 July 2003 |
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Plaintiff awarded proven damages for goods lost in municipal demolition; claims for assets and business loss failed for lack of proof.
Civil procedure – default/non-filing of defence – court proceeding in absence of defendant. Public/municipal law – demolition of premises – liability for loss caused by municipal demolition
Evidence – proof of value of lost goods and assets – burden on plaintiff to prove valuation
Damages – assessment limited to proven losses; speculative business-loss claims rejected
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31 July 2003 |
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Municipal demolition without adequate compensation found wrongful; lost goods awarded but asset and income claims inadequately proved.
Municipal authority liability for demolition; ex parte proceedings where defendant fails to file defence; proof and quantification of lost goods and business losses; requirement to prove assets and loss of income.
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31 July 2003 |
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District Court erred in refusing to revise a Primary Court execution order; it has statutory revision jurisdiction and must reconsider it.
Magistrates' Courts Act s22(1) – District Court jurisdiction to revise Primary Court records and orders for correctness, legality or propriety
Civil Procedure Code – Order XXI r.2 – procedure for review of decree/order of a court other than the High Court. Execution of subordinate court orders – review and revision by proper forum. Jurisdictional error – District Court's duty to exercise revision jurisdiction rather than refer to High Court
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31 July 2003 |
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Interim restraint maintainable; temporary injunction until final determination violates six‑month rule; juratless affidavits are defective.
Civil procedure – injunctions – temporary injunctions limited by Order XXXVII (as amended) to a maximum period (six months) – injunctions ‘pending final determination’ unlawful. Civil procedure – interim orders – interim restraint pending hearing of application for temporary injunction may be maintainable
Evidence/affidavits – jurat requirements – Notaries Public and Commissioners for Oaths Ordinance s.8 requires place and date in jurat; absence renders affidavit defective
Affidavits – must contain facts not extraneous legal argument or conclusions; defective affidavits may lead to striking out applications or objections
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31 July 2003 |
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An interim injunction to preserve the site is maintainable, but a temporary injunction exceeding statutory time limits is not; affidavits must meet jurat and content requirements.
Civil procedure – interlocutory relief – distinction between interim injunctions (to preserve status quo pending an application) and temporary injunctions (time‑limited under Order XXXVII Rule 3) – affidavits – jurat requirements and prohibition on legal argument in affidavits – compliance required for counter‑affidavits.
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31 July 2003 |
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Arbitral award quashed for denial of hearing where arbitrator refused reply, oral evidence and to address issues.
Arbitration — Setting aside award — Court’s power under Arbitration Ordinance s.15 — Natural justice/audi alteram partem — Failure to allow reply, oral evidence or final submissions — Arbitrator’s misconduct — Award quashed and rehearing ordered.
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30 July 2003 |
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An arbitral award was set aside for denying the petitioner a fair opportunity to present its case; rehearing ordered.
Arbitration — whether incorrect statutory citation is fatal — denial of opportunity to file reply, lead oral evidence or make final submissions — misconduct/denial of fair hearing — setting aside arbitral award and ordering rehearing before alternate arbitrator.
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30 July 2003 |
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Appeals from Primary Court must be filed within 30 days of decision; waiting for judgment copy does not extend the time.
Magistrates' Courts Act s.25(1)(b) – time for filing appeals; Law of Limitation Act s.19(2) – exclusion of time obtaining judgment; inapplicability to Primary Court-originated matters; remedy of leave to appeal out of time.
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29 July 2003 |
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The applicant entitled to reimbursement and monetary compensation for non‑allotment of agreed shares and non‑employment of assets.
Contract/Equity – agreement to allot shares in lieu of remuneration; enforcement and alternative compensation Evidence – credibility of witnesses; parties bound by pleadings and admissions Valuation – appointment of independent valuer; Opportunity‑Cost Method for lost use of operating assets Remedies – monetary reimbursement for expenditures and alternative damages for non‑employment of assets; pre‑ and post‑judgment interest Procedure – formal demand notice not required in these circumstances
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29 July 2003 |
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Conviction for resisting arrest quashed where prosecution failed to prove obstruction beyond reasonable doubt and evidence was uncorroborated.
Criminal law – resisting lawful arrest (s243(b) Penal Code) – burden to prove resistance or wilful obstruction beyond reasonable doubt; adequacy of charge particulars; corroboration of police evidence; duty to call material eyewitnesses; legality of forcible entry/search.
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28 July 2003 |
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Court set aside an unnecessary revisional order, holding a seven-year sentence for cattle theft lawful within statutory limits.
Criminal law – Sentencing for cattle theft – Maximum sentence ten years (Criminal Procedure Act First Schedule); mandatory minimum three years (Minimum Sentences Act First Schedule) – Seven-year sentence within statutory jurisdiction – Revisional order that sought to interfere was an apparent error and set aside.
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28 July 2003 |
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Application for leave to appeal out of time struck out for lack of timely notice and for impermissible merits-based appeal after guilty plea.
Criminal procedure – Notice of appeal – mandatory ten-day period under s.361(a) – late notice without leave invalid; Appeals after guilty plea – s.360(1) limits appeals to points of law or sentence legality; merits-based appeals barred.
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28 July 2003 |
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Circumstantial evidence established responsibility for fatal assault; conviction for manslaughter and 20 years imprisonment imposed.
Criminal law – Circumstantial evidence – Inculpatory facts must be incompatible with innocence and incapable of explanation other than guilt.* Criminal law – Dying declarations/eye-witnesses – credibility and need (or not) for corroboration in circumstantial cases.* Criminal law – Causation and forensic evidence – post-mortem showing intracranial haemorrhage from blunt force establishes cause of death.* Offence classification – Distinction between murder (malice aforethought) and manslaughter where intent to kill not proven.* Sentencing – deterrence in domestic violence leading to severe custodial term.
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25 July 2003 |
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Circumstantial evidence and the deceased's statements established the accused caused fatal head injuries; convicted of manslaughter due to lack of proof of intent.
Criminal law – Homicide – Circumstantial evidence and dying declaration – Distinguishing murder (malice aforethought) from manslaughter – Credibility of afterthought defences.
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25 July 2003 |
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A subordinate court lacked jurisdiction to try bankruptcy-related proceedings involving a Specified Public Corporation; proceedings quashed.
Jurisdiction – Bankruptcy jurisdiction resides in the High Court unless delegated – Specified Public Corporation (GN 321) – PSRC vested as official receiver – subordinate court lacked jurisdiction – proceedings nullity and quashed.
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25 July 2003 |
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23 July 2003 |
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High Court has jurisdiction over bankruptcy-provable claims despite magistrates’ pecuniary threshold and CPC restrictions.
Bankruptcy jurisdiction – section 97 Bankruptcy Ordinance – High Court jurisdiction; Provable debts in bankruptcy – section 35(3) – obligations incurred before receiving order; Pecuniary jurisdiction – effect of Magistrates’ Court Act (Act 25/2002) and Order IV R1(3),(4) CPC; Accrual of cause of action and limitation – certificate of completion presented after receiving order; Suits against Specified Public Corporations – effect of receiving/specification order.
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22 July 2003 |
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High Court allows revision: District Court lacked jurisdiction; child custody restored to applicant on welfare grounds with limited visitation.
Family law – Custody – Jurisdiction to entertain custody petitions – Requirement of domicile or residence under s.77(4) Law of Marriage Act
Revision – High Court’s power to nullify proceedings taken without jurisdiction. Child welfare principle – s.125(2) Law of Marriage Act and Article 3 UNCRC paramount in custody determinations. Visitation rights – limited non-overnight access and maintenance obligations
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22 July 2003 |
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Application dismissed where applicant admitted rent arrears and raised no triable issue; plaintiff awarded judgment and costs.
Commercial law — rent arrears; admission of debt undermining defence — failure to raise triable issue in affidavit — denial of opportunity to pay not a defence — costs awarded.
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21 July 2003 |
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Review dismissed: appeal was properly struck out as time-barred; time did not exclude period spent obtaining judgment copy.
Civil procedure – review of court order – striking out appeal suo motu for being time-barred; limitation of time for appeals from Primary Court – statutory thirty-day period starts from date of decision/order; Law of Limitation Act exclusion inapplicable to Primary Court matters; extension of time/leave to appeal is appropriate remedy.
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21 July 2003 |
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Applicant granted extension to file appeal out of time based on apparent merits despite insufficient diligence in obtaining judgment.
Civil procedure – extension of time to appeal – delay allegedly due to late receipt of judgment – requirement to show diligence in obtaining judgment copy. Appeals from primary courts – no requirement to attach judgment copy, but counsel may need to inspect judgment before filing appeal. Discretion to extend time – consideration of merits/seriousness of proposed grounds may justify extension despite procedural shortcomings
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18 July 2003 |
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Objection for non‑joinder of PSRC dismissed where defendant failed to prove it was a 'specified corporation'.
Civil procedure – preliminary objection – joinder of necessary party (PSRC) – allegation that defendant is a "specified corporation" – requirement of leave under s.9(1) Cap 25 – burden of proof on party asserting statutory status – failure to produce Government Notice renders objection unsubstantiated.
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18 July 2003 |
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Extension of time to file leave to appear denied due to failure to comply with court orders; summary judgment entered.
• Civil procedure – extension of time – application for leave to appear and defend – failure to comply with court-ordered filing timetable. • Evidence – affidavit must show satisfactory cause for delay – conflicting dates and inadequate explanation insufficient. • Summary judgment – Order XXXV Rule 2(2)(a) CPC – appropriate where defendant fails to show good cause for delay.
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18 July 2003 |
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An application to execute a nonexistent order and to seek an injunction absent pending proceedings is incompetent and dismissed.
Miscellaneous civil application – execution of non-existent order – prior decrees executed – estoppel by earlier ruling – temporary injunction incompetent absent pending suit or appeal.
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17 July 2003 |
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An affidavit omitting the jurat place under s.8 is incurably defective and warrants striking out the application.
Notaries Public and Commissioners for Oaths Ordinance (Cap. 12) s.8 – jurat must state place of swearing; omission to show place renders affidavit incurably defective; preliminary objection under Court Rules – striking out application; limited discretion to amend or overlook statutory jurat omissions.
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17 July 2003 |
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Applicant's delay and counsel's misplaced file excuse insufficient; extension refused and summary judgment entered for respondent.
Civil procedure – extension of time – failure to comply with court-ordered timelines – misplacement of file in counsel’s chambers not sufficient excuse – adequacy of affidavit explanation – summary judgment under Order XXXV Rule 2(2)(a) CPC.
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16 July 2003 |
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15 July 2003 |
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A signed guarantee is enforceable; guarantor held liable after principal’s default where creditor proved debt ex parte.
Contract of guarantee – guarantor’s secondary liability – enforceability of signed guarantee upon principal’s default. Civil procedure – substituted service by publication and ex parte hearing under Order IX Rule 6(a)(i) – proof on balance of probabilities
Remedies – award of principal, commercial interest, penal interest, and costs; refusal to award general damages for lack of evidence. Assessment of indebtedness – reliance on bank statements and witness testimony as proof of outstanding balance
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15 July 2003 |
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The respondent guarantor was held liable for the company’s unpaid loan; court awarded principal, commercial and penal interest.
Contract of guarantee – guarantee and indemnity memorandum signed – guarantor assumes secondary liability upon debtor’s default. Evidence in ex parte proceedings – bank statement, debenture and witness testimony sufficient on balance of probabilities to establish liability
Remedies – recovery of principal, contractual commercial interest, penal interest and costs; general damages not awarded where unsupported by evidence
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15 July 2003 |
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A signed guarantee binds the guarantor to repay the debtor's loan; ex parte evidence established liability and contractual interest awards.
Guarantee law – signed guarantee creates secondary liability; Ex parte proceedings and substituted service; Proof on balance of probabilities; Award of contractual commercial and penal interest; refusal of general damages for lack of evidence.
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15 July 2003 |
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Respondent guarantor held liable for the company's unpaid loan; commercial and penal interest plus costs awarded.
Contract of guarantee – guarantor’s secondary liability arises upon principal debtor’s default – signed memorandum as required evidence; ex parte proceedings after substituted service; award of principal, commercial and penal interest and costs
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15 July 2003 |
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15 July 2003 |
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High Court reinstated Primary Court finding that the respondent was an invitee and must vacate the disputed village land.
Land dispute – village land allocation; invitee occupation versus ownership; admission and failure to pay consideration; appellate procedure – duty to hear parties on appeal; quashing of erroneous appellate judgment.
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15 July 2003 |
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15 July 2003 |
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14 July 2003 |
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14 July 2003 |
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Proceedings, judgment and execution continued after appointment of a provisional liquidator without High Court leave were held to be nullities.
Companies law – winding up – appointment of provisional liquidator – automatic stay of proceedings – leave of High Court required before continuance or commencement of actions against company. Civil procedure – jurisdiction – subordinate court continuation of proceedings after liquidation – judgment and execution obtained without leave are nullities. Creditors’ claims – verification and distribution under scheme/deed of arrangement – effect on subsequent claims and executions
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14 July 2003 |
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14 July 2003 |
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An appeal filed more than 30 days after a district court decision is time‑barred and must be dismissed with costs.
Civil procedure — Appeals — Time‑limit for appeals from district courts — Section 25(1)(b) Magistrates' Courts Act 1984 — Appeal instituted after thirty days is time‑barred — Payment of fees does not cure statutory delay.
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14 July 2003 |
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Interlocutory relief to protect a caveat is premature without a suit and requires joinder of the purchaser as a necessary party.
Land registration – caveat – application seeking to restrain removal of caveat and disposition of land – held to be interlocutory injunction in substance
Civil Procedure – Order XXXVII Rule 1 – interlocutory/temporary injunction requires a pending suit; application premature without suit
Civil Procedure – joinder – bona fide purchaser is a necessary party to proceedings affecting disposition of property; non-joinder renders application bad in law
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11 July 2003 |
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Application for interlocutory relief dismissed as premature for lack of pending suit and for non-joinder of purchaser.
Civil procedure – interlocutory relief – temporary injunction – requirement of a pending suit before granting interlocutory relief under Order XXXVII Rule 1 CPC. Civil procedure – preliminary objection – prematurity of application in absence of substantive suit. Civil procedure – joinder of parties – purchaser of property is a necessary party to proceedings affecting disposition of land
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11 July 2003 |
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Application to restrain caveat removal dismissed as premature and for non-joinder of the purchaser.
Land registration – Caveat – Application for restraint on removal of caveat treated as temporary injunction requiring a suit under Order XXXVII Rule 1 CPC. Civil procedure – Prematurity – Interim injunction cannot be granted in absence of pending suit. Civil procedure – Necessary parties – Purchaser with interest in property must be joined; non-joinder is fatal
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11 July 2003 |
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The applicant's tort claim was dismissed as hopelessly time-barred under the Limitation Act.
Limitation of actions – tort – three-year period (Item 6, Part I, First Schedule) – suit filed 63 days late; Limitation Act s.3(1) – mandatory treatment of proceedings instituted after prescribed period; Limitation Act s.21(1) – exclusion for prosecuting another proceeding requires same cause of action and good faith; Civil Procedure Code Order VIII r.13 – does not displace statutory limitation; Leave/enlargement of time must be sought where limitation expired.
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11 July 2003 |
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The applicant's tort claim filed after the three-year limitation period was dismissed; prior application did not suspend time.
Limitation Act (Act No. 10/1971) – Item 6, Part I (tort) – three-year period – proceedings instituted after expiry must be dismissed under section 3(1)
Section 21(1)
Limitation Act – exclusion of time during prosecution of another civil proceeding applies only where that proceeding is founded on the same cause of action and prosecuted in good faith
Civil Procedure – Order VIII rule 13/CPC – procedural rules cannot override statutory limitation; filing pleadings does not validate a time-barred suit
Remedy – suit hopelessly time-barred and dismissed with costs to objector-defendant
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11 July 2003 |
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Dispute over termination and removal as signatory was an employment matter, not within Commercial Division jurisdiction.
Commercial Division jurisdiction — definition of 'commercial case' under High Court Registries Rules — disputes arising from termination of employment and removal as signatory are employment matters — alleged irregularities in convening board meetings do not automatically render a dispute commercial.
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10 July 2003 |
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Court dismissed claim and refused injunction, finding the plaintiff validly mortgaged property and defaulted on the loan.
Mortgage law – validity of mortgage – surrender of title deed as security and evidence required to establish mortgage; Default and enforcement – notice of sale of mortgaged property and lawful steps by mortgagee; Interim relief – refusal of temporary injunction where no triable issue is shown; Civil procedure – afterthought denials insufficient to displace documentary evidence.
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10 July 2003 |
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Borrower’s denial of a mortgage was an afterthought; failure to repay justified lawful sale of the mortgaged property, suit dismissed.
Mortgage/security – borrower surrenders title deed as security – repayment default – enforcement by notice of sale
Procedure – search of land records and publication of notice of sale as steps prior to sale of mortgaged property. Civil procedure – interim injunction refused where no triable issue and borrower in default
Evidence – afterthought defence rejected where documentary record and witnesses support mortgage and default
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10 July 2003 |
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10 July 2003 |
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Applicant’s after-the-fact denial of a mortgage fails where title deed was valid security and debt remained unpaid.
Mortgage/security for loan; validity of sale of mortgaged property; due diligence including land search; grant of interim injunction — absence of triable issue; afterthought denial of mortgage.
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9 July 2003 |