A judge will have to decide whether solicitor Brian O’Donnell and his wife Mary Patricia may proceed with a counter-claim over Bank of Ireland’s trespass injunction relating to their former family home in Killiney, Co Dublin.
At the Commercial Court on Monday, Mr Justice Brian McGovern said there would have to be a hearing over whether the O’Donnells are entitled to bring such an action in circumstances where they are bankrupts.
Earlier this year, the couple failed to get their bankruptcy annulled but they 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, 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, 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 they had a legal right of residence.
As part of their defence to the full case, and in a counter-claim, the O’Donnells claim the bank fraudulently obtained a judgment against the couple for €71m.
They argue they had a right of residence at Gorse Hill, subject to two years notice from Vico Ltd, the company which had held the property in trust for their four adult children.
The Official Assignee, the court-appointed official overseeeing the couple’s bankruptcy, says only he is entitled to maintain such proceedings as as they relate to the bankrupts’ estate.
At the Commercial Court on Monday, Mr O’Donnell argued that a right of residence was not assignable and was therefore not a matter which concerned the official Assignee.
Counsel for the Official Assignee disputed thar argument and said it was a property right concerning the estate.
Mr Justice McGovern said this issue would have to be tried separately before other matters.
He gave directions for exchange of documents in that regard before July 27th when the matter will be back before the court.
