Dunne loses bid to set aside Irish bankruptcy

Developer Seán Dunne has failed to overturn his Irish bankruptcy

. Mr Justice Brian McGovern yesterday dismissed Mr Dunne’s bid to set aside his Irish bankruptcy, meaning a dual bankruptcy process concerning him will proceed both here and in the United States.

In rejecting claims that Mr Dunne (59) was domiciled outside Ireland since 2007, the judge said he had regard to material including an email from Mr Dunne’s wife Gayle Killilea, of December 2010 to Sotheby’s International Realty, stating her husband ”spends far more time in Ireland than the US and has 200 employees and 3 hotels in Dublin, it is unbelievable that they are describing him as a refugee who ‘left Ireland’.”

The judge also had particular regard to an “unambiguous” email by Mr Dunne himself to Ulster Bank in November 2010 stating: “My Domicile is Ireland.” Mr Dunne had not sought to clarify or explain that statement, he added.

The Irish bankruptcy proceedings were initiated by Ulster Bank last February over default on loans for some €161 million issued to buy properties in Dublin. Mr Dunne filed for bankruptcy in the US the following month when he claimed to have debts of $1 billion and assets of $55 million. In July 2013, the Irish High Court adjudicated him bankrupt here.

Parallel proceedings
The US court-appointed trustee managing Mr Dunne's US bankruptcy later granted an application by Ulster Bank permitting parallel proceedings on grounds including they would benefit Mr Dunne's creditors as the vast majority of his properties were in Ireland.

Mr Dunne has personal property worth some €14 million outside the US, Mr Justice McGovern noted in his judgment yesterday, dismissing the bid on all grounds. The bid to set aside his Irish bankruptcy was opposed by Ulster Bank and Nama.

On the issue of domicile, the judge said the relevant period was the three years before the Ulster Bank petition was presented last February. While Mr Dunne claimed he had since 2007 lived in Paris, London, Geneva and the US, the emails and other material indicated he was domiciled in Ireland within the three years before presentation of the petition, the judge found.

He noted Mr Dunne is the registered owner of Ouragh, Shrewsbury Road, Dublin, now leased to the South African government. Ulster Bank also alleged Mr Dunne has an interest in, or use of, a property at the K Club. The evidence on the issue of ownership of the K Club property was "inconclusive" and "somewhat vague. That Mr Dunne referred to Ouragh in the US bankruptcy as his principal private residence tended to support the view that he intended to resume residence there at some time, the judge added.

Principal dwelling
While Ouragh was not his current principal dwelling, it was his principal dwelling in the three years before presentation of the petition.

He ruled that the evidence indicated Mr Dunne had carried on business within the State in the last three years and rejected further arguments that the official assignee could not enter into an arrangement with the US trustee administering Mr Dunne’s bankruptcy. It was “worth noting” that although Mr Dunne was seeking to have the protection of the US courts arising under a Chapter 7 bankruptcy, he and his wife argued that the US courts had no jurisdiction concerning other proceedings brought against them prior to that US bankruptcy, alleging Ms Killilea received fraudulent transfers from Mr Dunne. The couple claim the US courts have no jurisdiction because the alleged transfers occurred in Switzerland.

Such a position tended to “show a willingness to engage in forum shopping”, Mr Justice McGovern remarked.

On Monday, Mr Dunne and others will apply to recover documents and other material, believed to include a number of paintings, seized last week from the house at the K Club.