The Court of Appeal has refused David Wright’s application to set aside its earlier dismissal of his appeal against an interlocutory possession order involving properties over which Ken Tyrrell had been appointed receiver.
In a judgment delivered on 15 November 2018, Ms Justice Irvine said a final order could be reopened only in exceptional circumstances. Where fraud is alleged, the applicant must prove deliberate dishonesty on the balance of probabilities and show that it likely affected the decision in a fundamental way.
Wright argued that the receiver had withheld an undated mortgage deed from the High Court and failed to explain differences among copies of security documents. He also raised interest calculations in separate summary summons proceedings. His principal claim was that the Court of Appeal had been misled when senior counsel for the receiver said Wright had not been given permission to introduce new evidence during the appeal.
The judgment records that Ryan P. had permitted Wright to introduce security documentation, although no formal order was drawn up. The Court of Appeal had been told during the appeal that there was no such permission. Ms Justice Irvine described that statement as incorrect and regrettable.
However, the court found no evidence that the receiver or counsel had deliberately deceived it. The judgment says the appeal court understood that Wright relied on discrepancies among three mortgage documents, had the evidence before it and considered his written and oral submissions about them. The earlier appeal judgment had addressed those discrepancies in the context of an appeal concerning interlocutory relief.
The court also rejected the other grounds for reopening the appeal. It said alleged conduct in the High Court should have been challenged through an application to set aside that court’s judgment, and that the interest dispute in separate, concluded proceedings could not be used to reopen the possession case.
The refusal does not determine the final validity of the receiver’s appointment or his entitlement to sell the properties. The judgment says the plenary hearing in the possession proceedings had not yet taken place, and that Wright could pursue those issues there. The Court of Appeal refused the application to set aside its judgment and consequent order.