herald

Sunday 17 December 2017

O'Donnells fail in bid to overturn their bankruptcy

SOLICITOR Brian O'Donnell and his wife Mary Patricia have lost a Supreme Court appeal seeking to overturn their bankruptcy.

A five-judge court unanimously dismissed their claim that the High Court was wrong in finding their centre of main business interest was Ireland rather than England.

The O'Donnells were adjudicated bankrupt by the High Court in August 2013.

Bank of Ireland (BoI) had applied to have them declared bankrupt after they failed to satisfy a judgment for €71.57m against them in December 2011 arising out of a failure to repay property-related loans.

graves

The couple claimed they operated their property business in England, having moved permanently to London in December 2011, and in January 2013 took out a two-year lease on another property in Kent where they live and work.

Among their arguments were that they paid their taxes in England, did not have operational bank accounts in Ireland, were on the electoral register in England and had reserved graves in London.

The High Court in London separately ruled that their centre of main interest was Ireland, not England, after they had sought to avail of the bankruptcy regime there.

In their Supreme Court appeal, they argued that the High Court misapplied a rule that the burden of proof to establish centre of main interest lay on the bank. They also said High Court judge Mr Justice Peter Charleton misapplied the legal principles applicable to determining centre of main interest.

Giving the Supreme Court's decision, Ms Justice Mary Laffoy said the evidence before the High Court showed the O'Donnells were engaged "in an independent business conducted from Ireland".

That involved investing in property here, in the UK, in the US and in mainland Europe, she said.

What was clear, on Mr O'Donnell's own uncontradicted evidence, was that this property investment business was the root of their insolvency, she said.

There was ample uncontradicted evidence that entitled the High Court judge to conclude the couple "conducted the central administration of their business interests and their economic activity as a whole in this jurisdiction".

There was also uncontradicted evidence allowing the High Court to conclude that any of the O'Donnells' creditors would form the view that their centre of main interest was here.

directorships

The mere fact that the couple had unsuccessfully tried to avail of the UK bankruptcy regime cannot be seen as countervailing the facts which had been established as being in the public domain at the time, Ms Justice Laffoy said.

Those facts included their indebtedness to BoI, the registration of their business partnership and their record of directorships in Irish companies.

The judge was satisfied the High Court was correct in concluding their centre of main interest was in this jurisdiction at the time BoI presented its petition to have them adjudicated bankrupt.

hnews@herald.ie

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