O’Donnells given two weeks to vacate after losing appeal

Retired solicitor Brian O’Donnell and his wife Dr Mary Patricia have two weeks before they have to vacate their home, Gorse Hill.

The couple yesterday lost an appeal against a High Court order that they vacate the home on the Vico Road in Killiney, Co Dublin.

The Court of Appeal’s Ms Justice Mary Finlay Geoghegan, presiding, said the family can remain there until April 29 to allow them seek to appeal to the Supreme Court on a point of exceptional public importance.

In dismissing the appeal, the three-judge court ruled Bank of Ireland, which is owed €71.5m by the O’Donnells, had made out its case that the O’Donnells had no right of residence in the house which was used as security on the couple’s debts.

The court said the bank had made a strong case against an Isle of Man company, Vico Ltd, which the Supreme Court had previously ruled owns Gorse Hill. The bank’s receiver Tom Kavanagh was entitled to possession of the property once Vico’s entitlement came to an end, it said.

The bank had also made out a strong case that the receiver is now entitled to an order that the O’Donnells vacate the house. They did not have a right of residence which extended in time beyond the right of Vico to possession, the court said.

Among the reasons for this, the court found, were the nature of ownership arrangements between the O’Donnells and Vico which the Supreme Court had already ruled on. There was also evidence Mr O’Donnell, as a partner in the law firm Brian O’Donnell and Partners, acted in connection with the taking out of a mortgage from the bank on the property in 2006.

That agreement required confirmation that there were no other claims over the property and that confirmation was given by Mr O’Donnell’s firm, the court said.

When the O’Donnells, in 2011, came to an agreement with the bank over their €71.5m debt they also agreed to give up immediate vacant possession.

While the O’Donnells now contend the agreement was procured by fraud, the court had to have regard to the present status of that agreement as valid and binding.

When the receiver was appointed in July 2012, the O’Donnells never brought proceedings themselves to prevent possession or, having becoming directors of Vico, got the company to take proceedings.

The court was satisfied the bank had established a strong case it was likely to succeed at the full hearing of the action. The court also supported the High Court’s finding that damages would not be an adequate remedy for the bank if the injunction against trespass was not granted. The O’Donnells have been declared bankrupt and while they have sought to have that annulled — judgment is due today — the appeal court had to consider their position as it now is.

It further held the balance of convenience favoured upholding the High Court order. While Gorse Hill was acquired as a family home, it has not been the O’Donnell parents’ home since the end of 2011.

Later yesterday, the court also awards costs against the O’Donnells.