Thursday 23 November 2017

O'Donnells not entitled to continue to defend bank's action aimed at preventing them trespassing on former Killiney home, High Court rules

Brian O'Donnell
Brian O'Donnell

Retired solicitor Brian O’Donnell and his wife Mary Patricia are not entitled to continue to defend a bank's action aimed at preventing them trespassing on their former family home at Gorse Hill, Killiney, the High Court ruled.

The decision arises out of the fact that the couple are bankrupt.

Among various defences and a counterclaim to Bank of Ireland's action, the couple alleged they have a "right of residence" permitting them live in Gorse Hill after their four children were obliged, by court orders and after a long legal battle, to vacate the luxury property last March.

In their counterclaim, the couple also alleged the €71m judgment obtained by Bank of Ireland against them in December 2011 should be set aside on grounds including alleged fraud.

The couple moved into Gorse Hill after their children left but the bank got an injunction last April requiring them leave and not return until the full proceedings were determined.

The bank wants to sell Gorse Hill, valued at more than €5m, as part of its efforts to execute the €71m judgment.

In a pre-trial application, Chris Lehane, the trustee administering the couple's bankruptcy argued they, as bankrupts, were not entitled to defend and counterclaim because Gorse Hill forms part of their estate in bankruptcy.

That estate is vested in him,  they no longer have any interest in it and he does not intend to defend the case, he argued.

Ms Justice Caroline Costello Thursday (Oct 22) granted Mr Lehane an injunction restraining the couple advancing their defence and counterclaim.

The law here, and in England and Wales, is that bankrupts cannot defend proceedings which relate to "things in action", such as property which form part of their estates and which are not "personal" to bankrupts, she said.

The O'Donnells defences and counterclaim all relate to the estate vested in Mr Lehane, she said.

The defences included a claim of a right to residence but it was "incontestable" a right to residence is an interest in property, she held.

The couple were also not entitled to advance a defence related to the Family Home Protection Act because that law has no application to the disputed transactions concerning Gorse Hill, she said.

It was clear Gorse Hill was owned by a company, Vico, and Mr O'Donnell had arranged the relevant loans which were guaranteed by Vico.

Separately, the Supreme Court is to hear Mr O'Donnell's application for an extension of time to appeal against the 2011 judgment.

The Court of Appeal will also deal at a later stage with an appeal by Vico against a High Court order preventing it bringing proceedings against the bank related to Gorse Hill. Vico is also suing other individuals and companies based outside Ireland.

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