Wednesday 21 March 2018

O'Donnell children not in lawful occupation of home, claims bank

Blaise O'Donnell
Blaise O'Donnell

BANK of Ireland has claimed the four adult children of solicitor Brian O'Donnell are not in lawful occupation of the family's luxury home.

And the bank wants their legal action over the property speedily determined, the Commercial Court heard today.


According to a statement of affairs from Brian O'Donnell and his wife, Dr Mary Patricia O'Donnell, the property at Gorse Hill, Vico Road, Killiney in Co Dublin was valued at €30m in 2006 and is worth  €6-€7m now.


Alexandra, Blake, Bruce, Blaise are challenging the appointment by the bank of a receiver and manager over Gorse Hill on June 7, 2012. They are also challenging mortgages and guarantees entered into in 2006 by Vico Ltd, the Isle of Man company which owns Gorse Hill.


The bank claims the two ordinary shares in Vico Ltd appear to be held on trust for the children under a trust settlement of September 1997 created by their parents, whom the bank is pursuing for payment of some €75m.


As part of a security package for the restructuring of various loans, the bank claims Vico Ltd entered on June 1st 2006 into two separate mortgages and charges in favour of Bank of Ireland over the Gorse Hill property.


Vico Ltd also entered, it is alleged, into a number of guarantees and indemnities relating to debt owed by the O'Donnell parents and that the 2006 mortgage related to all sums owed from Vico Ltd to the bank, including sums owed under guarantees.


Under a settlement of other proceedings against the couple, the bank claims Vico Ltd entered into a futher guarantee and indemnity concerning the debt owed to the bank.  It also claims the children signed statutory declarations confirming they have no interest in Gorse Hill other than as beneficial shareholders of Vico Ltd.


In their challenge to the bank's bid for possession, the children allege the various mortgage deeds, guarantees and indemnities given by Vico Ltd concerning Gorse Hill in 2006 are invalid on grounds they were allegedly procured by "unconscionable application of undue pressure and influence and breach of trust, negligence, and breach of duty".


The matter came before Mr Justice Peter Kelly yesterday when he was asked to set a timetable for exchange of legal documents in advance of the hearing of the case but the sides disagreed how much time was necessary for that.


Proinsias O Maolachain, for the four children, said they have the services of a small firm of solicitors, not "an office floor" of solicitors, and needed some leeway.  The bank had sought a lot of documents and agreement had been reached in that regard while extensive documents were also sought from non-parties.


This was a case where knowledge of what happened is with trustees and the bank and, to some extent, his clients' parents, counsel said. He asked that his side have until June 3 to provide witness statements.


Cian Ferriter SC, for the bank, said June 3 was too much time, the case was initiated in July 2012 and the O'Donnells must know what case they were advancing. The bank contended they were not in lawful occupation of Gorse Hill and was aiming for a trial in late June.


Mr Justice Kelly made a series of directions for exchange of documents, including that witness statements be provided by May 23 next. He considered that was reasonable time, the judge said.

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