A HIGH Court judge has described as “a typical stalling-type defence” that advanced by Co Offaly Fianna Fáil councillor Gerard Killally and auctioneer Richard Connor, manager of the Co Offaly senior GAA football team, against allegations that they made “secret profits” of several million euro from a number of land deals in Co Offaly.
Mr Justice Peter Kelly said yesterday the defence submitted on behalf of Mr Killally and Mr Connor, practising as Gerad Killally Auctioneers, was “not in acceptable form” for Commercial Court proceedings.
He said the defence involved a traverse – blanket denial – of all the claims against them, and this was “of no assistance” to the court in identifying the issues in the proceedings against both men.
The judge said the court required to know what the issues were before a trial and before discovery issues were dealt with. However, this defence was a “typical stalling-type defence” and he would not let the case advance on that basis.
Instead, the judge directed that a procedure involving sworn answers to specific questions – interrogaries – should be followed in the proceedings. When those sworn answers were received, the issues in the case and the “true defence” would be much clearer and the parties would also be able to see what discovery was required, he said.
He directed that process should begin, and adjourned the proceedings for five weeks to facilitate it.
The case was admitted to the Commercial Court last October when Mr Justice Kelly noted it involved “serious allegations”.
Three businessmen – Adrian Daly, Racefield House, Cappincur, Tullamore; Declan Guing, Carrick Road, Edenderry and Frank Lawlor, Clonmullen Lodge, Edenderry – initiated the action over partnerships formed between various combinations of the sides to acquire lands and deal in lands.
It is claimed the defendants introduced the respective partnerships to the deals, acted as negotiators and agents for the partnerships and made secret profits from deals not disclosed to the partnerships.
The plaintiffs are seeking damages for alleged negligence, misrepresentation, breach of duty, breach of contract and also want an inquiry for damages for alleged unjust enrichment.
One of the claims relates to the Daingean Road Partnership formed in 2005 between Mr Guing, Mr Lawlor and the defendants to acquire and deal in lands at Cappincur, Tullamore. It is claimed the partnership was to acquire those lands for €6.5 million from another party and this was the best price available.
It is claimed the defendants did not disclose they had an interest in the transaction and concealed the true nature of the transaction. A series of secret transactions were procured by the defendants whereby the lands were first sold for €5 million, leaving the defendants making a secret profit of €1.5 million, it is alleged.
In separate proceedings last month, Mr Killally and his wife were ordered by Mr Justice Kelly to repay commercial loans totalling some €2.6 million to Bank of Ireland. The order was against Mr Killally and his wife Naomi, of Shean, Edenderry, who were separately represented.
Bernard Donleavy, for Ms Killally, said his client believed the debt was overstated by some €250,000. Noting the amount sought by the bank was some €2.9 million and that it was entitled, if it chose, to apply for a money judgment, the judge entered judgment against the Killallys in the sum of €2.6 million. He adjourned to later this month the hearing of the dispute over whether the remaining monies up to €300,000 were owed. The bank had claimed the loans were advanced to purchase commercial properties and to refinance existing facilities.
