A receiver can go ahead with the possession of a Victorian building previously used as a theatre and antiques showroom in Dublin’s Capel Street, the Court of Appeal has ruled.
Numbers 114-116 is a three-storey building constructed in 1871 and has a notable arcaded ground floor, window surrounds and cornice. It has gone through many uses over the years, including as the Torch Theatre/Dublin Coffee Tavern Company and an antiques showroom after it was bought in 1988 by James Oman.
In 2004, it was used by Mr Oman as security on a commercial loan of €1.2 million from AIB.
In 2016, the bank obtained judgment against Mr Oman for €1.6 million in relation to that outstanding loan.
Later, the bank appointed a receiver over the property, a move resisted by Mr Oman. Following settlement talks, Mr Oman consented to possession, but around this time his wife, Angela Oman, said she was going to take proceedings to establish her alleged interest in the property.
In a judgment on behalf of the three-judge Court of Appeal, Mr Justice Brian McGovern dismissed Mrs Oman’s case and also lifted a stay she obtained against the bank and receiver on the possession order.
Mr Justice McGovern said Mrs Oman claimed to have contributed IR£30,000 towards the 1988 purchase price of IR£110,000. The Oman family lived in an apartment in number 115 from 1988 to 1992, when Mr Oman bought a residence in Belgrave Square, Rathmines, Dublin.
Apartment
The apartment was left vacant and not used as part of the business carried on in the remainder of 114-116, the judge said.
Mrs Oman claimed the apartment was a separate and distinct property from 114-116 but, the judge said, no evidence was offered to show that it was treated separately when the property was bought in 1988.
The judge said as part of putting the property up as security for the €1.2 million loan, Mr Oman formally declared it was not a family home and no one else had an interest in it.
In 2018, Mr Oman brought new proceedings claiming the deed of mortgage on the premises was invalid and he also claimed the apartment had been “at all material times” a family home. He also brought separate proceedings claiming AIB denied him an opportunity to fully and properly defend the €1.6 million judgment case.
Both these cases were struck out as an abuse of process.
Mrs Oman’s separate case against AIB and the receiver resulted in an order in July 2018 that the premises be vacated. However, a stay was put on it pending an appeal. Dismissing her appeal, Mr Justice McGovern said there can be no doubt Mrs Oman knew of the 2017 possession proceedings against her husband and she took no steps to intervene. In the 13 years since the deed of mortgage was executed, she made no claim to a beneficial interest in the property, he said.
He entirely agreed with the High Court judge’s comment that Mrs Oman’s claim to not understand she had any role in the original possession proceedings could be characterised as “disingenuous or misleading because she gave no basis for the belief or understanding”.
When one looked at the other proceedings and the surrounding facts “one is driven inexorably to the conclusion that these [Mrs Oman’s] proceedings are a collateral attack on the order for possession of the property and are a clear abuse of process,” he said.