Monday 18 December 2017

O'Donnells must leave Gorse Hill by tomorrow evening, judge rules

Brian O'Donnell was told by Dublin's High Court he and his wife are trespassing on the luxury residence known as Gorse Hill
Brian O'Donnell was told by Dublin's High Court he and his wife are trespassing on the luxury residence known as Gorse Hill

A HIGH Court judge has found that solicitor Brian O'Donnell and his wife Mary Patricia are trespassing on the former family home.

"You and you wife have to be out of the property by 5 o'clock tomorrow (Friday)", the judge told Mr O'Donnell.

He was speaking after refusing Mr O'Donnell's application for a six month stay on his order preventing him interfering with receiver's right to take over the house. 

If he fails to do so, it will be a matter for Bank of Ireland and the receiver, he said.

The judge said they lived in England and had travelled here to occupy Gorse Hill in Killiney, Dublin.  He was only giving them until tomorrow to remove their belongings.

Mr O'Donnell, who said he would be appealing the decision in relation to trespass, said a stay until tomorrow "is not very reasonable".

The judge gave Bank of Ireland an order preventing the couple from interfering with receiver Tom Kavanagh who had previously been granted possession of Gorse Hill on the Vico Road, Killiney, Dublin.  The receiver wishes to sell the house, valued at around €7m, to meet part of a €71.5m debt owed by the O'Donnells for various unpaid property loans given to them in the past.

Mr Justice Brian McGovern said while the bank and receiver had met the test for an injunction preventing interference, he was not making any determination in relation to the O'Donnells' latest challenge to a settlement agreement and documents relating to the mortgage and charges on the house.

His order was simply maintaining the status quo which was that the receiver had a right to possession pending the full hearing of the O'Donnells' challenge.

"The defendants are prima facie trespassing at Gorse Hill", he said.

He was also satisifed the couple's actions were done in an attempt to frustrate the receiver's lawful efforts to take possession.

The trespass proceedings arose after Mr Justice McGovern rejected an application by the O'Donnell adult children, three of whom had been living in Gorse Hill until recently, for an injunction preventing the receiver from taking over the house. 

That hearing was told while the children,  Blake, Blaise, Bruce and Alexandra, had left the property on foot of a court order, the father and mother, Brian and Mary Patricia O'Donnell had moved in claiming they had a right of residence granted to them by the children.

Bank of Ireland then sought the trespass order against the parents claiming what they did was a a "tactical manoeuvre" to frustrate efforts to take possession of the house.

Cian Ferritter SC, for the bank, said Mr O'Donnell and his wife flew in over a weekend from what has been their permanent home for the last three years in Surrey, England, to take up occupation of Gorse Hill, Vico Road, Killiney.

That house was owned by a company called Vico Ltd over which the O'Donnell couple's debts were partly secured and receiver Tom Kavanagh  was entitled to possession, counsel said.

Mr Kavanagh was entitled to an injunction preventing trespass by the O'Donnells or others and to orders that they deliver up keys and alarm codes for the property, he said.

Mr Kavanagh had been due to take possession, on foot of a Supreme Court order, of the house on March 2 but the court was told Mr O'Donnell had barricaded himself inside and had received support from from an anti-repossession group calling itself the "New Land League"

Mr O'Donnell claimed the bank was trying to "railroad" him and his wife in what had been a pattern of behaviour by the bank for some time.

He sought an adjournment for further time to prepare his case and to deal with applications by him, including to cross-examine the receiver, but this was refused.

Among his arguments, Mr O'Donnell said the bank has known about the right of residency enjoyed by him and his wife at Gorse Hill for the last 15 years and particularly in the last three years since this litigation began. The court heard the bank disputed that right of residency claim.

Mr O'Donnell also claimed there were defects in the documents issued by the bank were invalid as they were not properly sealed and witnessed, that Bank of Ireland Private Banking which was involved in bringing the case was not a licenced bank and that Vico Ltd, the company which owned the house on behalf of their children, had not previously been involved in the proceedings.

He also claimed the bank had never told them how much of their assets had been realised to meet the debt and that it (Bank of Ireland) was the only financial institution which had "persecuted" them.

The bank said the O'Donnell case had been fully dealt with in the High and Supreme Courts and the new case was completely unstateable.

Mr Justice McGovern, after hearing argument from both sides, reserved his decision.

Today,  he rejected the O'Donnell claims that the receiver should not be given possession.  He said it was not the O'Donnell residence as they lived in Kent in England and that anyone who remains on the property is interfering with the receiver's right to possession.

The judge was also critical of the O'Donnells bringing in third parties who made incorrect public statements at a time when court proceedings were ongoing.   He did not accept Mr O'Donnell's claim he had no control over the Land League and had in fact "invited them in".

This showed no regard for the rule of law, he said.

Following the ruling,  Mr O'Donnell told the he would be appealing the decision.   He asked for a stay on the order they deliver up possession.

He also said there were now other appeals in train in relation to a refusal of the judge to disqualify himself from hearing the case and other matters.

Mr Ferritter, for the bank, opposed a stay saying it was "yet another tactical appeal to bog down the bank with vexatious litigation".  On the basis of today's decision, there was no prospect of the Court of Appeal overturning it, he said.

Mr Justice McGovern said Mr O'Donnell, as a solicitor,  should be fully aware of the import of his decision.  He was entitled to appeal but he was only granting a short stay on his order in light of his findings.

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