“Here, there is no relevant obligation on the claimant, and therefore nothing that can qualify as ‘contractual performance’ for the purposes of s 3(2)(b)(i). Even if that is wrong, by fixing the rate of interest at a particular level the claimant is not altering the performance of any obligation assumed by it under the contract. Rather, it is altering the performance required of the appellants.”
“Whilst a mortgagee has no duty at any time to exercise his powers to enforce his security, a receiver has no right to remain passive if that course would be damaging to the interests of the mortgagor or mortgagee. In the absence of a provision to the contrary in the mortgage or his appointment, the receiver must be active in the protection and preservation of the charged property over which he is appointed: see Lightman and Moss The Law of Receivers and Administrators of Companies (3rd edn, 2000) pp 153–154 (para 7-030).”
“The next question is whether there has been a failure to discharge that duty of care. Mr Lawrence's own evidence seemed to me to demonstrate that there had been such a breach of duty. In my judgment Mr Lawrence had a total misapprehension about the functions of a receiver. He regarded himself as being there to do what he was told by his appointor, the City of Westminster; provided he discharged what they told him to do he had discharged his functions. He was, in his own eyes, nothing but a rent collector. That, to my mind, is an unhappy misapprehension of the functions of a receiver. Though he may be appointed by one party his function is to look after the property of which he is receiver for the benefit of all those interested in it. He is not, even in commercial terms, the mere agent of the appointor; he is there to safeguard the property for all who have interests in it. Simply to regard himself as the collector of rents without any further function was to misapprehend the nature of his appointment.”