The Court of Appeal has dismissed Sean McAndrew’s appeal against the High Court’s decision to strike out his claims against Launceston Property Finance DAC and receiver Tom Kavanagh.
The appeal concerned two orders made in July 2018: one striking out McAndrew’s motion to amend his pleadings and add a third party, and another striking out his statement of claim. The Court of Appeal upheld the order striking out the claim and dismissed the appeal on all grounds. It did not determine whether McAndrew had repaid the underlying loan or finally resolve any future challenge to the receiver’s powers.
McAndrew’s 2017 proceedings alleged that the defendants trespassed on his properties and defamed him while seeking possession. He also alleged theft and fraud and claimed financial loss connected with his former legal representation. The defendants denied the allegations and said their pleadings were too unclear to answer. They relied on the loan, mortgage and assignment of the loan to support their position that the first defendant could appoint a receiver.
The High Court struck out the claim in 2018, finding that the pleadings did not set out the necessary details of the alleged wrongdoing. On appeal, the Court of Appeal said the claims did not identify the alleged defamatory words or their publication, the acts said to constitute trespass, or the elements of fraud. It also found that McAndrew had not clearly proposed amendments capable of saving the proceedings.
McAndrew’s appeal counsel argued that the dispute was really about whether proceeds from property sales had cleared the loan. The Court said that issue had not been coherently pleaded in the proceedings that were struck out. It held that the High Court had not erred in striking out the existing claims.
The judgment also limits what can be taken from the High Court’s finding that Kavanagh had been validly appointed receiver. The Court of Appeal said that finding did not prevent McAndrew from bringing a future challenge to a later exercise of the receiver’s powers. If McAndrew is right that the debt had been discharged, the court said, he may have stateable grounds to challenge the appointment. The appeal court did not decide whether that claim would succeed.
The Court said the defendants should provide McAndrew with a statement of account showing how they calculated the amount claimed as outstanding. It suggested that the account could help clarify the dispute and might support mediation. The court proposed that the defendants receive their costs, subject to any party seeking a different order within 21 days of electronic delivery of the judgment.