Monday 27 February 2017

Receivers seek possession of guesthouse operated by wife of bankrupt developer Thomas McFeely

Priory Hall developer Thomas McFeely
Priory Hall developer Thomas McFeely

Two fund-appointed receivers are seeking possession of a south Dublin property being operated as a guesthouse by the wife of bankrupt developer Thomas McFeely.

Nina Kessler has failed to show she has any valid lease for the property at Abrae Court, Zion Road, Rathgar, valued at some €1.1m, the receivers allege.

The property was provided as security for unpaid loans advanced to another couple - Frank Brady and Pauline Gibson, the receivers said.

Their case is against Mr Brady, a bankrupt, Faussagh Avenue, Cabra, Dublin; his wife,  Pauline Gibson, Landsdowne Gate, Drimnagh, Dublin and Ms Kessler.

Mr Brady was declared bankrupt in 2013 and cannot defend the proceedings unless the official administering his bankruptcy chooses to do so. The latter has decided not to.

On Monday, Judge Brian McGovern granted an application by Cian Ferriter SC, for the plaintiffs, to fast-track the action in the Commercial Court. Ms Gibson, representing herself, did not object to the case being admitted.

The judge, who was told Ms Kessler was also not objecting to the matter being fast-tracked, has returned the case to November.

The proceedings are by receivers Luke Charleton and Marcus Purcell, of accountancy firm EY,  and Promontoria (Aran) Ltd (PAL) , a fund which acquired certain loans made to Mr Brady and Ms Gibson.  The plaintiffs want an order for possession of the guesthouse property and, if necessary, judgment for some €6.06m against Ms Gibson arising from those loans. 

They have separate proceedings against Mr Brady, Ms Gibson and Harry Slowey, Merdon, Dalkey Avenue, Dalkey, to get possession of another property at 51 Middle Abbey Street, Dublin. Judgment is also sought agaist Ms Gibson over the same loans and the receivers accept any judgment against Ms Gibson may only be entered in one of the cases.

The second case was also transferred to the Commercial Court which was told by Aidan Redmond SC, for Mr Slowey, his client hoped it could be mediated.  That case concerns allegations a purported lease granted by Ms Gibson in favour of Mr Slowey in relation to the Middle Abbey Street property, being used as a methadone clinic, is void and of no legal effect.

In the first action, it is claimed any alleged lease granted by Mr Brady and/or Ms Gibson to Ms Kessler for the Rathgar property is void and of no legal effect. It is also alleged Mr Brady and Ms Gibson breached the terms of a June 2006 mortgage between them and First Acrtive plc.

Mr Charleton said the joint receivers were appointed on February 29th last over the Abrae Court property, provided as security to First Active plc under a June 2006 mortgage. Ulster Bank in December 2011 agreed to provide loan restructuring facilities to the couple.

The terms of the 2006 mortgage restrained creation of any lease concerning Abrae Court without the lender's consent and provided the total debt would become immediately repayable if the borrowers defaulted on payments, he said.

In December 2014, the PAL fund acquired the couple's loans and in November 2015, a demand was issued to the couple for repayment of some €6m.  A business plan from the couple was rejected on behalf of the fund last January.

Last March, Ms Kessler indicated she had a lease for the Abrae Court property but in April she suggested the original copy of the lease may have been among material removed from her office by the official dealing with her husband's bankruptcy, he said.

Solicitors for the receivers were instructed Ulster Bank had not given written consent to the purported lease, he said. They had asked Ms Kessler to provide conclusive evidence of her title and also asked Ms Gibson to accept Ms Kessler had no valid lease.

In an email of June 7, Ms Gibson said she had no knowledge of what arrangement Ms Kessler had with Ulster Bank and also stated "any monies paid out were paid directly to Ulster Bank from Nina".  It remains unclear whether Ms Kessler is paying rent or other payments to Mr Brady and/or Ms Gibson, Mr Charleton said.

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