The High Court has refused Patrick O’Connor permission to bring fresh proceedings against receiver Luke Charleton, finding the proposed claims vexatious and covered by an existing restriction on litigation concerning specified properties and borrowings.
In a judgment delivered on 28 February 2024, Mr Justice Barry O’Donnell said the proposed case was based on Mr O’Connor’s contention that the retirement of co-receiver Michael Cotter in or around August 2020 ended the joint receivership and prevented Mr Charleton from acting alone. Mr O’Connor proposed alleging that Mr Charleton had unlawfully retained possession of properties, deprived him of rental income and committed fraud and other wrongdoing. These were allegations in the proposed claim, not findings by the court.
The application was made under an order imposed in 2017 that required Mr O’Connor to obtain leave before bringing proceedings directly or indirectly concerning listed properties or borrowings. The judge concluded that the proposed case fell within the order because it arose from the secured borrowing, properties, receiver appointments and actions taken under those appointments. He said that without leave, bringing the case would breach the restriction.
The judge accepted for the application that Mr Cotter had signed a deed of discharge in August 2020. The original signed copy could not be found; the court had an unsigned final draft. The judge said the central factual premise of Mr O’Connor’s application would otherwise appear to fall away.
On the meaning of the charge documents, the judge found that clause 9.1 allowed each of multiple appointed receivers to exercise the receivers’ powers individually and to the exclusion of the others. He concluded that Mr Cotner’s retirement had no material effect on Mr Charleton’s ability to continue as receiver. The judgment also rejected Mr O’Connor’s argument about deeds of novation, finding he was not a necessary party to them and that they did not affect the continued existence of the receivership.
The court noted that earlier proceedings concerning the receivership and secured properties had ended in decisions adverse to Mr O’Connor, including determinations on appeal. It also criticised the draft statement of claim for lacking the detailed particulars required for serious allegations such as fraud and misrepresentation.
The judge refused leave. He listed the matter for a final hearing on 15 March 2024 to hear submissions on the final form of orders and costs. The judgment did not determine those outstanding matters.