Friday 31 October 2014

Solicitor's children begin appeal to halt repossession of home

Tim Healy

Published 07/05/2014 | 02:30

Blaise O Donnell, daughter of solicitor Brian O Donnell, pictured leaving the Four Courts yesterday after a Supreme Court action - also in picture background, her brother, Blake. Picture: Collins Courts
Blaise O Donnell, daughter of solicitor Brian O Donnell, pictured leaving the Four Courts yesterday after a Supreme Court action - also in picture background, her brother, Blake. Picture: Collins Courts

SOLICITOR Brian O'Donnell misrepresented his ownership of the family's luxury home to get credit from Bank of Ireland, when the real position was that his four children owned the property via a trust, a court heard.

Counsel Ross Maguire told the Supreme Court that the property at Gorse Hill, Vico Road, Killiney, which the children want the court to stop the bank repossessing, was given a value of €30m in a statement of net worth of Mr O'Donnell and his wife given to Bank of Ireland in 2005.

The five-judge court is hearing an appeal by the four O'Donnell children – Blake, Blaise, Bruce and Alexandra – against a High Court order decision of July 2013 that the bank was entitled to possession of the house.

The bank was aware that Gorse Hill was owned by Vico Ltd, which in turn was owned by a trust, and not by the parents, Mr Maguire argued.

The court heard the house contents were given a value of €7m in one statement of net worth but a valuation carried out for the bank in 2012 valued them at €120,000.

Mr Maguire agreed there was a "huge" difference between those amounts.

The children felt compelled to sign untrue declarations in 2011 stating they had no interest in Gorse Hill in an effort to save their parents from financial ruin, Mr Maguire said.

The declarations were obtained under undue influence of Mr O'Donnell, he added.

The bank demanded those declarations as part of a settlement of legal proceedings against the parents, he added.

When that settlement later broke down, the bank in late 2011 obtained a €71m judgment against the parents, which it wants to enforce via repossession of Gorse Hill.

Mr Maguire agreed with Mr Justice Adrian Hardiman that the children were all aged 18 when they signed the declarations and that one of them, Blake O'Donnell, is a qualified solicitor.

One of the children, Alexandra, was aged just 14 in 2006 when Vico guaranteed to mortgage the property as security for loans provided by Bank of Ireland to their parents, counsel added. All four children were dependants of their parents, he added.

The bank was aware that the guarantee was a breach of trust and it should not in equity be entitled to repossession, he argued.

ASSET

In exchanges with the judges, he agreed the children had not joined their parents as parties to their proceedings aimed at preventing the bank repossessing Gorse Hill.

When counsel said he was not representing the parents but that they were fully aware of the proceedings, Mr Justice John Murray said the Director of Pubic Prosecutions "perhaps should also be aware".

The court has heard the house and three-and-a-half acres at Gorse Hill are owned by Vico Ltd, an Isle of Man company, and the shareholding of Vico Ltd is owned by a discretionary trust set up by the O'Donnell parents in favour of their children. The legal dispute centres on whether Gorse Hill was an asset of the trust legally and beneficially owned by the children.

The bank claims entitlement to the property, now said to be worth between €6m and 7m, under securities obtained by it in 2006 concerning the property when it advanced various loans to Brian O'Donnell and his wife Mary Patricia O'Donnell.

In his July 2013 High Court judgment, Mr Justice Brian McGovern found the children were entitled to a beneficial interest in the shares of Vico Ltd. But he said it was clear the trust held shares, rather than any interest, in Gorse Hill.

Having found Gorse Hill was not held by the trust, there was no proprietary claim open to the children as beneficiaries of the trust, he ruled.

The judge also dismissed claims Bank of Ireland had knowledge, actual or constructive, of any breach of duty or breach of trust by the directors of Vico Ltd or the trustees.

The appeal continues.

Irish Independent

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