Woman loses appeal over sale of family home in Co Westmeath
Posted on 23rd January 2020 at 22:03
A woman has lost her appeal over an order obtained by a bankruptcy trustee for sale of her family home in Co Westmeath.
The Court of Appeal told Anne Daly she has until early April to deliver up vacant possession of her home, Ballinagore House, Ballinagore, Co Westmeath valued at €400,000, unless an alternative agreement is reached with official assignee Chris Lehane.
Bank of Ireland had in 2012 secured judgment for some €4.43 million, on consent, against Ms Daly and her husband Patrick J. Daly, from whom she is separated. Ms Daly subsequently failed to get an extension of time to appeal the consent order.
In 2015, Mr Daly was adjudicated bankrupt. His bankruptcy was later extended for 10 years for non-co-operation with Mr Lehane.
In 2016, Ms Daly was also adjudicated bankrupt and was discharged from bankruptcy in June 2017.
She lives in the family home while her husband lives elsewhere. Their adult daughter no longer lives at home.
Representing herself, Ms Daly had appealed a January 2019 High Court order sanctioning the sale of her home. That order was deferred for six months and further deferred pending the appeal.
On Thursday, a three judge Court of Appeal dismissed her appeal on all grounds.
After judgment was given, Ms Daly told the court she was seeking legal advice and she also referred to correspondence with Mr Lehane.
Ms Justice Caroline Costello, who gave the court’s judgment, said she had until early April to deliver up vacant possession.
The fact a sale order was made did not mean the sale had to proceed and the court was encouraging her to engage with Mr Lehane, with or without lawyers, in the interim, including about possibly buying the house herself, the judge told Ms Daly.
Edward Farrelly SC, for Mr Lehane, said his client had offered mediation and always preferred if an agreement could be reached.
In the judgment, Ms Justice Costello noted Mr Lehane previously secured High Court orders setting aside as void a purported transfer by Mr and Ms Daly of the Ballinagore property to an American citizen and declaring the official assignee was the legal and beneficial owner of the property.
The judge said Ballinagore house was jointly owned by the Dalys, who were both adjudicated bankrupt and it followed there was no interest of a non-bankrupt spouse in the family home.
She rejected arguments by Ms Daly that she was unable to effectively access justice because the High Court had refused to adjourned the sale proceedings in January 2019.
Ms Daly had previously secured an adjournment and discharged her solicitor shortly before the case was due to open, the judge said. It was a matter for Ms Daly whether she discharged her solicitor.
Ms Daly had also told the High Court she was seeking legal aid but had been unable to inform the Court of Appeal whether that application had been decided, she said.
Creditors had “long waited” for realisation of this valuable asset of the bankrupt estates and there was no indication how long an adjournment would be necessary to await a legal aid decision. In the circumstances, the High Court had discretion to refuse the adjournment, she held.
Ms Daly could not contest this matter on the basis of her claim she should not have been adjudicated bankrupt and that this amounted to “special circumstances”, the judge further held.
She dismissed Ms Daly’s additional claim the sale order was disproportionate, saying the only ground advanced in that regard was disability. While Mr Lehane had said there was no evidence of the claimed disability, the High Court had said it would take the apparent disability into account, she said.
The High Court had balanced, in a proportionate way, the interests of the creditors and of Ms Daly, she ruled. Ms Daly had advanced no grounds for the appeal court to interfere with the High Court decision.
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