The court distinguished a claim by the mortgagee for possession from a claim on the mortgagor’s personal covenant to pay what was due. A claim for a set-off is merely a sub-species of counterclaim. The court will not readily imply a term into a legal mortgage restricting the right of the bank, as legal mortgagee, to take possession of the property.
A pleaded equitable set off arising from a counterclaim for an unliquidated sum cannot defeat a claim to possession.
Judges:
Slade LJ
Citations:
[1993] 1 WLR 72
Cited by:
Applied – Ashley Guarantee plc v Zacaria CA 1993
In possession proceedings based on a mortgage debt, the mortgagee’s right to possession of the mortgaged property will not be defeated by a cross-claim of the mortgagor in the absence of some contractual or statutory provision to the contrary. . .
Cited – Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham CA 15-Oct-2004
The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The . .
Cited – National Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
Cited – Lexi Holdings v Pooni and Another ChD 21-Apr-2008
. .
Cited – Thakker v Northern Rock Plc QBD 5-Feb-2014
. .
Lists of cited by and citing cases may be incomplete.
Banking, Equity
Updated: 29 April 2022; Ref: scu.184795
