A judgement is expected late next week in the appeal taken by solicitor Brian O’Donnell against a High Court order requiring him and his wife to vacate a mansion in the Dublin suburb of Killiney.
The case will resume in the Court of Appeal next Tuesday, when the three-judge court will briefly hear arguments on additional written submissions that are to be lodged by Bank of Ireland and the O’Donnells.
Ms Justice Mary Finlay Geoghegan said the court was “very anxious to finalise this matter” and hoped to be in a position to give its judgement by the end of next week.
Mr O’Donnell and his wife Mary Patricia O’Donnell want the appeals court to overturn last week’s High Court decision granting a trespass order to Bank of Ireland and receiver Tom Kavanagh. The receiver wishes to sell the house, Gorse Hill, which is valued at €7 million, to meet part of a €71.5 million debt owed by the O’Donnells for various unpaid property loans.
The submissions to be lodged early next week centre on Mr O’Donnell’s challenge to the validity of the appointment of the receiver, a point that will be dealt with on Tuesday afternoon.
At Friday’s hearing, Cian Ferriter SC, for Bank of Ireland, said the appellant was seeking to remain at Gorse Hill “rent free” at Bank of Ireland’s expense while pursuing legal action on points that had “no valid basis.”
Mr Ferriter said the terms of a 2011 settlement agreement, which he said showed Mr O’Donnell agreed to vacate the Killiney mansion in the event of the bank exercising its right of security, was “simply fatal” to Mr O’Donnell’s case. “This settlement agreement remains binding and operative,” he said.
Mr Ferriter argued that while Mr O’Donnell claimed Vico Limited, the entity that owned the house at Gorse Hill, had given him and his wife a right to reside at the property, no such right could have outlasted the bank’s security becoming enforceable. He added that Bank of Ireland was potentially losing €12,000 a month in rental income on the property while the O’Donnells, whose permanent residence was in England, remained in the house. Because the O’Donnells were bankrupt they would not be in a position to pay any damages if the courts found against them, he said.
Mr Ferriter said there was no credible evidence the O’Donnells could point out that showed their right of residence, which at any rate would have been given up by the settlement agreement with the bank. “They have no arguable right to reside because they have agreed to vacate,” he added.
Mr O’Donnell has argued there was evidence of objective bias by Mr Justice Brian McGovern who, he submitted, should have recused himself from hearing the case after the O’Donnells raised issues in relation to the judge’s wife and previous litigation relating to a partnership that involved Mrs McGovern. Mr Ferriter said there was “no credible, valid basis” to the suggestion that Mr Justice McGovern should have recused himself.
The appellant also claims the 2011 settlement agreement was procured by deception and that in any event it became void from the moment that the bank obtained a judgment in relation to Gorse Hill. “When you have a judgment, the settlement agreement becomes moot,” he said.
Representing himself, Mr O’Donnell told the court they had paid back €700 million to banks worldwide but Bank of Ireland alone had sought to collapse their business and engage in “a firesale” of their properties. He and his wife had enjoyed a right of residence in Gorse Hill since 2000, he said, and it was their only residence in Ireland although they do lease a house in England.
He said the bank had suffered no loss by not having taken possession of the house, and its spending on legal and receivers’ fees in the case probably exceeded its valuation of Gorse Hill.
