Saturday 21 October 2017

O'Donnells lose their Supreme Court bid to overturn bankruptcy

Brian O'Donnell
Brian O'Donnell

Tim Healy

SOLICITOR Brian O'Donnell and his wife Dr Mary Patricia have lost a Supreme Court appeal seeking to overturn their bankruptcy.

A five-judge court unanimously dismissed the O'Donnells' claim the High Court was wrong in finding their centre of main business interest was Ireland, rather than England, at the time of their bankruptcy.

The O'Donnells were adjudicated bankrupt by the High Court in August of 2013.

Proof

Bank of Ireland (BOI) had applied to have them declared bankrupt after they failed to satisfy a judgment for €71.57m obtained against them in December 2011 arising out of property-related loans.

The couple claimed they operated their extensive property business in England, having moved permanently to London in December 2011, and in January 2013 took out a two-year lease on another property in Kent where they live and work.

Among their other arguments were that they paid their taxes in England, and did not have operational bank accounts in Ireland.

They said they were on the electoral register in England rather than Ireland, and had reserved graves in London.

But the High Court in London separately ruled their centre of main interest was Ireland, not England, after they had sought to avail of the then more lenient bankruptcy regime there.

In their Supreme Court appeal, they argued the High Court misapplied a rule that the burden of proof to establish centre of main interest lay on the bank.

They also claimed the High Court judge, Mr Justice Peter Charleton, misapplied the legal principles applicable to determining the centre of main interest.

The bank denied the claims and opposed the appeal.

Giving the Supreme Court's decision, Ms Justice Mary Laffoy said the principal criterion of centre of main interest was not whether the O'Donnells were habitually resident here or elsewhere.

The evidence before the High Court clearly demonstrated the O'Donnells were engaged "in an independent business conducted from Ireland". That involved investing in property here, in the UK, in the US and in mainland Europe, she said.

What was clear, on Mr O'Donnell's own uncontradicted evidence, was that this property investment business was the root of their insolvency, she said.

Interests

There was ample uncontradicted evidence, including from Mr O'Donnell himself, which entitled the High Court judge to conclude the couple "conducted the central administration of their business interests and their economic activity as a whole in this jurisdiction".

There was also ample uncontradicted evidence which allowed the High Court conclude that any of the O'Donnells' creditors would form the view that their centre of main interest was here.

Irish Independent

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