Imperial Suites Hotel Limited v Johnson, Leroy

Application for striking out of Defence and/or Summary Judgment – Whether there exists reasonable grounds for defending the claim pursuant to rule 26.3(1)(c) of the Civil Procedure Rules or a real prospect of successfully defending the claim pursuant to rule 15.2(b) of the Civil Procedure Rules – Defendant lacking locus standi as either shareholder or creditor of company to defend action on behalf of company – The company was the mortgagor and has a separate legal personality – Only the company has the legal standing to challenge the transfer of title pursuant to mortgagee’s power of sale – Allegation that property sold at an undervalue – Remedy for mortgagor lies in damages against the mortgagee under s. 106 of the Registration of Titles Act – Mortgagor company now non-existent – Indefeasibility of Certificate of Title except where there is fraud pursuant to s. 70 of the Registration of Titles Act – General and vague allegations insufficient for the purposes of establishing fraud – Robust statutory protection of the bona fide purchaser for value of property by virtue of sections 68 and 106 of the Registration of Titles Act – Purchaser not required to be concerned about manner in which the mortgagee came by Registered Title pursuant to s. 71 of the Registration of Titles Act – Circumstances do not disclose claimant was or could subsequently be shown to be a party to a “continuing fraud” – Absent “continuing fraud” right to pursue action for fraud extinguished by the Limitation of Actions Act see sections 27, 30 and 46 and Interpretation Act section 41