The Court of Appeal has dismissed Yolanda Limited’s appeal against a High Court refusal to strike out a claim by D & L Properties Limited over money allegedly advanced for a London property development. It did not decide whether D & L made a loan agreement with Yolanda or whether the claim will succeed at trial.
D & L alleges that the companies agreed in November 2008 that D & L would provide funding for the development at 12 Palace Street, London. It says €2.2 million was advanced and seeks €9,739,880, comprising the alleged principal and compound interest accrued by the time proceedings were issued, as well as continuing interest. Its pleaded claims include breach of contract and other duties, misrepresentation and conversion, or repayment of money it says Yolanda received.
Yolanda disputes having contracted with D & L. It says the dealings were with Derek O’Leary personally, and that the €2.2 million came from an account in his and his wife’s names. It also argued that any alleged agreement was covered by section 2 of the Statute of Frauds and could not be enforced without a sufficient written note or memorandum. D & L maintains that it was the lender and has argued that the statute could be overcome through part performance or equitable principles.
The Court of Appeal found that the agreement, if made, was essentially a loan and was not a contract for the sale of land or an interest in land. However, it accepted that the agreement was expected to run beyond a year, so the Statute of Frauds applied in principle on that basis.
The court said D & L had not identified particular documents and explained how they could satisfy the statute. It also noted a major factual dispute over whether O’Leary advanced the money on his own behalf or for D & L. The court considered that dispute, and the contested arguments about part performance and equitable grounds for setting the statute aside, unsuitable for resolution on this strike-out application.
The appeal concerned only the High Court’s refusal to strike out the proceedings under the court’s inherent jurisdiction as frivolous, vexatious or bound to fail. The Court of Appeal concluded that Yolanda had not shown that D & L’s case was bound to fail and dismissed the appeal. The underlying claim remains unresolved.