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Case Name:
Cheng v. Luu

RE: Ji Jiang Cheng (Plaintiff (Respondent)), and
Yen Trang Luu (Defendant (Appellant))

[2006] O.J. No. 4382
Docket: C44079

Ontario Court of Appeal
Toronto, Ontario
J.I. Laskin, J.C. MacPherson and S.E. Lang JJ.A.

Heard: November 2, 2006.
Judgment: November 2, 2006.
(5 paras.)

Bills of exchange — Bills, cheques and notes — Capacity and authority of parties — Non est factum — Consideration — What constitutes valid consideration — Appeal from trial judge's finding that a document signed by the appellant was an enforceable promissory note — Appeal dismissed — The appellant's act of signing the promissory note at the request of his daughter was to benefit his son and the family restaurant venture — In that way, there was consideration sufficient to support the note — The appellant could not rely on non est factum because he chose not to read the document.

Appeal From:

On appeal from the judgment of Madam Justice Alison Harvison Young of the Superior Court of Justice dated August 26, 2005.

Counsel:

Richard P. Quance for the appellant.

Tina Lee for the respondent.

       The following judgment was delivered by

¶ 1      THE COURT:— Even assuming that the appellant's argument has merit with respect to the earlier agreement, we see no basis to interfere with the trial judge's finding that the October 28, 1999 document, signed by the appellant, was an enforceable promissory note.

¶ 2      Although the appellant argues on appeal that there was an absence of consideration for the promissory note, the trial judge concluded otherwise on the basis of the family relationship between and among the two families involved in the restaurant business. The father's act of signing the promissory note at the request of his daughter was to benefit his son and the family restaurant venture. In that way, there was consideration sufficient to support the note.

¶ 3      On the issue of non est factum, the appellant chose not to read the document. Because of his carelessness, he cannot rely on this defence.

¶ 4      We see no reason to interfere with the award of pre-judgment interest. Even though the respondent reduced his claim to come within the simplified rules, he remains entitled to pre-judgment interest.

¶ 5      The appeal is dismissed. Costs to the respondent in the amount of $3,500 inclusive of GST and disbursements.

QL UPDATE:  20061106
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