Sunday 18 March 2018

Developer Tom McFeely and his wife Nina must vacate Ballsbridge home

Tom McFeely
Tom McFeely

Tim Healy

DEVELOPER Thomas McFeely and his wife Nina must vacate the family home in Ballsbridge, Dublin, on August 10 when the sheriff can take possession of it over an unpaid loan, a High Court judge ruled today.

Mr Justice Michael Peart rejected a bid by the McFeely's to seek a longer postponement of a possession order given to NAMA arising out of a €9.5m mortgage they took out on the Ailesbury Road house in 2005.

It came just hours after her husband won a Supreme Court appeal over his jailing for contempt of court related to fire safety works at the Priory Hall apartments in Dublin.

It also followed a judge's decision on Monday that he be declared bankrupt. His lawyer also told the High Court that a warrant issued for his arrest in the District Court over an unpaid €24,000 debt to a recruitment company has been "withdrawn by the gardai."

Mr Justice Michael Peart said today he would not give the McFeely's a stay on possession, granted by the Circuit Court last June, pending a High Court appeal of that order which could take several months to determine.

Instead, he gave them until August 10 to find alternative accommodation and to allow the sheriff formally notify them that "the vans would be ready" by that date, a reference to the fact that all their furniture would have to be removed to effect possession.

He rejected the McFeely's claim that they had bona fide grounds for an appeal, saying the matter had already been extensively fought in both the Circuit and High Courts.

While he had sympathy for the McFeelys, who had been given until August 1 to comply with the possession order so that one of their youngest children could complete the Leaving Cert, he said he had to apply the law.

The McFeely's counsel, James Salafia, said while her husband had been adjudicated a bankrupt, she sought a stay on the possession order in her own right after reading newspaper reports that the door of her home would be broken down "with gardai called and so on" to enforce the possession order.

She was a "timid woman" who normally "existed in the shadow of her husband" and was inexperienced in business matters, counsel said. As a housewife, she had no other income than that of her husband and it would not be easy for her to find alternative accommodation.

But NAMA argued the McFeelys had effectively been living rent-free in Ailesbury Road since August 2009 when the last payment on the loan was made and already had had two months to find new accommodation.

Earlier today, a five-judge Supreme Court unanimously allowed Mr McFeely's appeal against an order made on November 4 last by the president of the High Court, Mr Justice Nicholas Kearns, jailing him for three months and fining him €1m for breaching an undertaking he gave in relation to the fire safety works at Priory Hall in Donaghmede.

Mr McFeely had argued before the Supreme Court there was no evidence he deliberately flouted the authority of Mr Justice Kearns.

Residents of the apartments have been evacuated for their own safety by order of the court until specified remedial works are completed.

Mr McFeely argued he had deployed all resources at his disposal to comply with the undertakings he gave.

But when he was ordered off the site by the court on November 4 it meant he was prevented from complying with the undertakings he gave, it was argued.

Dublin City Council, which brought the original proceedings against him, opposed his appeal.

Today Chief Justice Susan Denham said he could not have been held to be in breach of his undertaking because he had been ordered off the site.

"Thus, there was no factual foundation upon which to make a finding of contempt of court or breach of an undertaking," she said.

The Chief Justice also pointed out that this case was about contempt of court and did not relate to providing a remedy for "the deeply concerning situation" for the residents and owners of Priory Hall who have been removed from their homes.

In his concurring judgment, Mr Justice John Murray also suggested more effective enforcement of fire safety standards by builders before they are allowed to sell on properties.

The law under which proceedings against Mr McFeely were brought, Section 23 the Fire Services Act 1981 "does not seem to encompass much in the way of assistance or remedies for the blameless owners and users" of premises like Priory Hall, he said.

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