The Court of Appeal has dismissed David Wright’s appeal against interim orders requiring him and Rope Walk Car Park Limited to surrender possession of two secured properties and restraining interference with a receiver’s work on three properties. The underlying High Court proceedings remain live; the appeal did not determine the final entitlement to possession.
The orders were made in February 2017 on the application of a receiver appointed by Launceston Property Finance DAC over properties secured by loans advanced to Wright. The Court of Appeal upheld the High Court judge’s conclusion that the receiver had a strong case likely to succeed at trial, damages would not adequately compensate the receiver, and the balance of convenience favoured interim relief.
Wright argued that assurances from Launceston and its servicing agent, Pepper Assets Servicing, entitled him to develop the two Swan Lake properties and retain one as his home. The appeal court found no stateable basis for a sufficiently clear promise that he could retain a property. It also upheld the finding that any concession could be withdrawn on reasonable notice, and that Launceston had made clear in March 2016 that it would no longer allow the proposed development. Wright’s claimed expenditure of about €12,000 on planning permission could be addressed in damages at the substantive hearing, the court said.
Wright also argued that the Mortgage Arrears Resolution Process (MARP) provisions applied because he and his family were living at 1B Swan Lake. The appeal court did not decide whether the code applied generally to Launceston or the receiver. It held that, even assuming it did apply, Wright’s acknowledgment of claims by his mother and partner to interests in the secured properties breached the mortgage’s negative pledge. The court said that breach, separate from arrears, allowed proceedings for possession under the code’s provision 57(b), without the steps specified in provision 56.
The court also upheld the High Court’s assessment of the family’s accommodation circumstances, including the existence of another property owned by Wright and the absence of steps to recover it from tenants. It noted that 1A Swan Lake and Summer Cove had been sold after the High Court orders. Wright had remained in occupation of 1B Swan Lake under a stay extended during the appeal.
The Court of Appeal dismissed all grounds in the notice of appeal and the additional arguments raised without leave to amend it. It made no final determination of the live High Court proceedings.