Tuesday 27 September 2016

O'Donnells must leave palatial Gorse Hill - but not for at least two weeks

Published 15/04/2015 | 10:54

Brian O'Donnell leaving Gorse Hill in Killiney for court at 8.30am this morning.
Photo: Steve Humphreys
Brian O'Donnell leaving Gorse Hill in Killiney for court at 8.30am this morning. Photo: Steve Humphreys

Brian and Mary Patricia O'Donnell have lost their High Court appeal against their eviction from Gorse Hill - but a further appeal to the Supreme Court could grant them another two to three months in the Killiney mansion.

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In the interim, they will be allowed to remain on at the house until noon on April 29 after the court of Appeal granted them two weeks to draft an appeal.

Mr O'Donnell had challenged a decision granting a trespass order to Bank of Ireland and receiver Tom Kavanagh over the hilltop property on Vico Road.

However Mr O'Donnell says he will now consider appealing the decision and requested a stay of two weeks to formulate his appeal.

Senior Council for Bank of Ireland Cian Ferriter however protested against the allowing of a further appeal, saying the O'Donnells have already had "two bites of the cherry" and argued that it would set a dangerous precedent to allow another appeal to the Supreme Court.

He said the couple lived permanently in the UK and had only flown in to occupy Gorse Hill in February.

The court rose briefly to allow the bank to consider a date when the O'Donnells could be asked to leave.

Justice Mary Finlay Geoghegan told Mr O'Donnell the court had decided it would grant a stay for two weeks from today's date - ending at 12 noon on 29 April.

The court did not consider it appropriate to make a further stay for this court and said any further applications must be to the Supreme Court.

The appellants are entitled to consider the question of cost, she said.

A hearing will take place at 4.15pm on Wednesday April 22.

The hearing has been adjourned until 4pm today to decide on the matter of costs.

Ms Justice Mary Finlay Geoghegan said today she understood how such a decision made by the bank would be a 'cause of great emotional distress for the family'.

However, she ruled the High Court decision made was correct and Brian and Patrica O'Donnell need to vacate the Vico Road mansion.

Mr O'Donnell, who has represented himself in court, has argued that he and his wife had a contractual right of residence at Gorse Hill based on an agreement with Vico Ltd, the entity that owned the house.

At a later date on March 26, Mr O'Donnell argued the process to appoint a receiver for the property had been legally defective.

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

Bank of Ireland (BOI) sought their bankruptcy after they failed to satisfy a judgment for €71.5m obtained against them in relation to loans advance for property investment.

The O'Donnells had argued there are a number of grounds on which the bankruptcy should be set aside.

Mr O'Donnell argued one of those grounds was that it was never BOI he dealt with but Bank of Ireland Private Banking (BOIPB) which is not a licensed bank.

"It is like Ulster Bank loaning money and Bank of Scotland pursuing the case", he told the court.

All the correspondence, the drawdown of monies, bank statements were from BOIBP and not BOI, he said.  The Central Bank had confirmed there was no such thing as a licence covering a group and BOIPB was in any case an intermediary, not a bank.

Mr O'Donnell had also challenged a sworn statement put in opposition to the annulment challenge from an official in the bank, Brian O'Connor, its specialist property group director.

Mr O'Connor was "a lowly official", Mr O'Donnell said, who could only provide hearsay evidence in relation to their case.

On the other hand, he had said, there was an "rugby team" of 15 people who had greater knowledge of this case, including bank CEO Richie Boucher and finance director Andrew Keating.

The reason this had been done was because Mr O'Connor could not be cross-examined in relation to his evidence, he told the court.

It was also done so that some of the more senior officials who could have given statements would not end up giving self incriminating evidence in relation to the unlicensed status of BOIPB, he said.

"It was a clever tactical move to put up someone like this (Mr O'Connor)", he told the court.

There was also no evidence to show Mr O'Connor had been authorised to act on behalf of the bank.

Mr O'Connor's affidavit should be struck out and an order should be granted to annul the bankrutpcy, he argued.

Mark Sanfey SC, for the bank, said Mr O'Connor has been involved in the O'Donnell file since 2010 - before the judgement was obtained against them - and at one point had a meeting with the O'Donnells.  What he says in his affidavit was from first hand knowledge and no hearsay, counsel said at the time.

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