Monday 23 October 2017

No need for cross examination of Sean Dunne's bankruptcy to determine asset transfer to wife Gayle Killilea

Gayle Killilea leaving the Four Courts. Photo: Collins Courts
Gayle Killilea leaving the Four Courts. Photo: Collins Courts

Tim Healy

There is no need for cross examination of the official overseeing developer Sean Dunne's bankruptcy arising out of efforts to find out whether assets have been transferred to his wife Gayle Killilea, the High Court heard.

Mark Sanfey SC, for the official assignee in bankruptcy, Chris Lehane, said a court will be more than able to assess whether beliefs of Mr Lehane, based on his investigations, were over-stated.

A court could do so without cross examination and, if it finds Mr Lehane had over-stated matters, that would accordingly weaken his case, counsel said.

Mr Sanfey was making submissions in a challenge by Ms Killilea to the basis for Mr Lehane obtaining a temporary order freezing her assets below €50m.

She wants the court to allow her lawyers cross-exam Mr Lehane about his affidavits which led to the that order. The freezing order case has yet to go to a hearing on whether it should remain in place pending full trial of all matters.

A central part of Mr Lehane's assertion that there was a scheme by the couple to put assets beyond the reach of creditors relates to a house in Dublin bought in 2005 by Mr Dunne and shortly afterwards transferred to Ms Killilea.

Walford, Shrewsbury Road was bought by Mr Dunne for €58m, making it the expensive home in Ireland at the time. It was sold for €14.2m by a trust company called Yesreb last year to another trust whose ultimate settlor is businessman Dermot Desmond.

The proceeds of that sale are in an escrow account pending the outcome of legal proceedings.

The court heard both Mr Dunne and Ms Killilea had denied knowledge of Yesreb at other hearings.

In one of his affidavits, Mr Lehane says Ms Killilea had stated in evidence, in a separate case related to other companies she was involved in, that in 2013 she gave a loan note for €11.5m to her stepson John Dunne, Sean Dunne's son from his first marriage, to buy Walford from her.

Ownership was transferred to Yesreb, a Cyprus-registered trust, whereby if Walford was sold, the profits would go to the children of Ms Killilea and Mr Dunne and also to John Dunne.

Mr Sanfey said despite the claim of the €11.5m loan note, John Dunne has not to date sworn a statement in relation to it.

Mr Lehane had been given no evidence to show €11.5m was repaid to Ms Killilea by Yesreb, counsel said.

The court heard Ms Killilea, who was referred to as Dunne by the Lehane side and Killilea by her own counsel, had judicially separated in 2010.  She says she is a businesswoman in her own right and cannot be held responsible for what Mr Dunne has said.

She insists Mr Dunne had bought Walford for her, in trust, in 2005.

Mr Lehane says there is evidence to show Mr Dunne claimed ownership, including in a "letter of wishes" signed in 2007.

When the full hearing of the freezing order injunction takes place, these are matters which can be addressed, counsel for Mr Lehane argued.

They were not matters which required the cross-examination of Mr Lehane, he said. 

If the court does decide he should be cross-examined then his (Lehane's) side would seek to cross-examine Ms Killilea too, counsel said.

In reply, Alan Doherty SC, for Ms Killilea said this freezing order application was exceptional for a number of reasons. 

These included mis-statements and over statements by Mr Lehane in his affidavit, including a claim by him that Yesreb was not to be trusted. The level of omissions by Mr Lehane in his affidavits  was exceptional, counsel said.

Ms Killilea is prepared to, and wants, to give evidence when the full freezing order hearing takes place, he said.

Ms Justice Caroline Costello reserved her judgment.

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