Retired solicitor Brian O'Donnell and his wife Mary Patricia cannot, arising from their bankruptcy, defend a bank's action aimed at preventing them trespassing on their former family home at Gorse Hill, Killiney, a High Court judge has ruled.
Among various defences and a counterclaim to Bank of Ireland’s action, the couple alleged they had a “right of residence” permitting them to live in Gorse Hill after their four children were obliged, by court orders and after a long legal battle, to vacate the property last March.
In their counterclaim, the couple also alleged the €71 million 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 secured an injunction last April requiring them to leave and not return until the full proceedings were determined.
Judgment
The bank wants to sell Gorse Hill, valued at more than €5 million, as part of its efforts to execute the €71 million judgment, obtained under a March 2011 settlement agreement which provided, if the settlement broke down, as it did, the O’Donnells would yield possession of Gorse Hill.
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 formed part of their estate in bankruptcy. That estate was vested in him, they no longer had any interest in it and he did not intend to defend the case, he said.
Ms Justice Caroline Costello yesterday granted Mr Lehane an injunction restraining the couple advancing their defence and counterclaim.
‘Incontestable’
The O’Donnells’ defences and counterclaim all related 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 was an interest in property, Ms Justice Costello said.
The couple were also not entitled to advance a defence related to the Family Home Protection Act because that Act had 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.
The couple said they had an interest in Gorse Hill while the bank insisted they had no such interest, the judge said.
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 with an appeal by Vico against a court order preventing it bringing proceedings against the bank related to Gorse Hill. Vico is also suing other individuals and companies based outside Ireland.
