The widow and personal representative of the chargor challenged the enforcement proceedings taken by the bank under a guarantee. The chargor had begun to suffer Alzheimers disease. She now sought leave toappeal saying that to enforce the guarantee, the bank should have applied to appointed receivers under the 1983 Act.
Held: Leave to appeal was refused. The bank had instead appointed receivers under section 109 of the 1925 Act, and ‘as with other cases of agency created by way of or in connection with the giving of security over assets, it does not come to an end on the incapacity of the mortgagor and it does not depend on any act of the mortgagor other than the original creation of the authority. So it does not require the mortgagor to give consent or to be capable of giving consent at the time when the security is enforced. ‘
Judges:
Lloyd LJ
Citations:
[2012] EWCA Civ 962
Links:
Statutes:
Mental Health Act 1983, Law of Property Act 1925 109
Jurisdiction:
England and Wales
Citing:
Cited – Sowman v David Samuel Trust ChD 1978
When considering a mortgage created by a corporate debtor, the rights under the debenture are not the property of the mortgagor but that of the mortgagee. It was a case where a company which had created the debenture equivalent to the mortgage had . .
Lists of cited by and citing cases may be incomplete.
Banking, Health
Updated: 04 November 2022; Ref: scu.463148