Court to decide on whether Brian and Mary Patricia O'Donnell have right to continue with counter-claim against Bank of Ireland
A COURT will have to decide whether solicitor Brian O'Donnell and his wife Mary Patricia have a right to continue with a counter-claim over Bank of Ireland's trespass injunction relating to their former family home in Killiney, Co Dublin.
Mr Justice Brian McGovern, in the Commercial Court earlier today, ruled there would have to be a hearing as to whether the O'Donnells were entitled to bring such an action because they are bankrupts. They failed to get their bankruptcy annulled but have appealed that decision.
The High Court has yet to hear the bank's full claim against the O'Donnells arising out of the trespass injunction it obtained against them last March and confirmed a month later by the Court of Appeal. A bank-appointed receiver finally took over the property, Gorse Hill, in April after the O'Donnells lost that appeal.
As part of its overall action against them, the bank seeks damages for trespass and breach of contract, including for loss of rental income for the property, over which the O'Donnells claimed their had a legal right of residence.
However, as part of their defence, and in a counter-claim, the O'Donnells claim the bank fraudulently obtained a judgment against the couple for €71m.
They argue that they had a right of residence at Gorse Hill, subject to two years notice from Vico Ltd, the company which held the property in trust for their four adult children.
As bankrupts however, the court-appointed official overseeeing their bankruptcy, the Official Assignee (OA), says only the OA is entitled to maintain such proceedings as as they relate to the bankrupts' estate.
Mr O'Donnell argued Monday that a right of residence was not assignable and was therefore not a matter which concerned the OA.
Counsel for the OA disputed this and argued it was a property right concerning the estate.
Mr Justice McGovern said it was an issue which would have to be tried separately before other matters. He gave directions for exchange of documents before July 27 when the matter will be back before the court.
Read more here: O'Donnell's 'near-death' drama resulted in Gorse Hill court saga
Read more here: O'Donnell family's last hours in Gorse Hill