The Court of Appeal has refused David Wright’s application to extend the time to appeal a High Court order striking out proceedings he had brought against receiver Ken Tyrrell and Launceston Property Finance Limited.
In a judgment delivered by Ms Justice Irvine on 15 May 2018, the court said Wright had not shown an arguable basis to challenge the finding that his proceedings were an abuse of process and a collateral attack on an earlier possession order. It also found that a separate ground concerning the High Court judge’s conduct was arguable, but concluded that granting more time would not benefit Wright.
The struck-out proceedings sought, among other relief, to have the deed appointing Tyrrell as receiver declared invalid and to restrain the defendants from taking possession of or dealing with properties. The High Court had ruled that Wright could have challenged the receiver’s appointment when possession was sought, but had not done so. The Court of Appeal said the later proceedings sought to reopen matters that could have been raised at that earlier stage.
Wright argued that documents he saw after the possession order raised questions about the mortgage date stated in the receiver’s appointment deed and another mortgage relating to the same properties. Tyrrell’s counsel submitted that any date error would not invalidate the appointment, noting that valid mortgages were registered and that Wright was in default. The Court of Appeal accepted those legal arguments and found no arguable basis for a delayed challenge to the appointment.
The second proposed ground concerned comments by the High Court judge before hearing the strike-out application. The judge had asked Wright’s counsel whether he wished to reconsider his position and warned of possible professional consequences if the proceedings proved to be a flagrant abuse of process. The Court of Appeal described that intervention as premature and unwarranted, and said it could arguably be interpreted as suggesting prejudgment. It nevertheless noted that the transcript appeared to show Wright’s legal team had a proper opportunity to make submissions.
The Court of Appeal reasoned that even if Wright succeeded on this ground, the likely result would be a rehearing of the strike-out application. It considered that he had no arguable grounds to resist that application, so a rehearing could yield no positive result and would expose the parties to further costs. The court therefore refused the extension of time. The underlying substantive proceedings remained live, adjourned pending the outcome of a separate appeal concerning the possession order.