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Judgement was given in the case of Day v Tiuta International Ltd and others:  All ER (D) 06 (Oct);  EWCA Civ 1246
The judge struck out the claimant's claim pleading set-off of his claim against the first defendant's (TIL) charge and entered summary judgment on TIL's counterclaims on the basis of subrogation of an earlier charge. The claimant appealed. The Court of Appeal, Civil Division, in dismissing the appeal, held that the judge had been entitled to approach the application for summary judgment on TIL's two alternate hypotheses. Further, the claimant's argumentthat TIL had not relied expressly on the earlier charge when appointing receivers over his property provided no defence and there were no equitable defences available to the claimant to defeat TIL's claim to be subrogated.
The claimant acquired the freehold of a substantial residential property and land. He subsequently borrowed funds in order to refinance the property (the SC loan) secured by a mortgage and charge (the SC charge). The claimant then entered into a loan facility agreement with the first defendant company (TIL) to enable him to refinance his existing borrowings in respect of the property and to redevelop the property (the TIL loan). He executed a charge in favour of TIL (the TIL charge) and received the first tranche of funds under the TIL loan, which was used to repay the sums due under the SC loan and SC charge, before he received further sums from TIL. TIL was placed in administration and the claimant was unable to continue with the development of the property because no further funds were released.
The claimant failed to repay the TIL loan and TIL appointed joint receivers of the property (the receivers). He issued proceedings against TIL and the second defendant administrators (the administrators), asserting an unliquidated claim for damages and contending that he could set that claim off
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