The wife of bankrupt developer Sean Dunne wants orders permitting her lawyers to cross-examine a US lawyer about his sworn statements in support of Irish proceedings challenging the validity of transfers of valuable assets by Mr Dunne to his wife.
The Commercial Court will later this month hear Gayle Dunne's application for orders permitting the cross-examination of Timothy Miltenberger, who has sworn affidavits on behalf of Richard Coan, the US trustee administering Sean Dunne's US bankruptcy.
Mr Miltenberger's affidavits are intended for use by Chris Lehane, the official assignee administering Mr Dunne's Irish bankruptcy, in opposing Ms Dunne's application to halt proceedings in Ireland in which Mr Lehane alleges Mr Dunne made invalid transfers to her of various assets, including a hotel in South Africa valued at more than €18 million.
Mr Dunne is a bankrupt in both Ireland and the US. His wife claims the action by Mr Lehane in bringing proceedings here against her is “oppressive” in circumstances where there are also proceedings in the US. She is seeking to halt the Irish proceedings against her as an abuse of process.
In Mr Miltenberger’s affidavits, he says the US trustee knows and understands Mr Lehane has taken actions necessary to protect the former property of Sean Dunne for the benefit of creditors. The US trustee is aware of, and agrees with, all of the acts taken by Mr Lehane, Mr Miltenberger added.
Both Mr Lehane and the US trustee are acting to maximise the recovery of the creditors of Sean Dunne and are working in concert to achieve this goal, he added.
Ms Dunne argues there will be two trials in the two separate bankruptcy proceedings when, she contends, only one is necessary, Mr Miltenberger says. The need for two trials was created by Ms Dunne’s voluntary act of moving property between multiple nation states and taking actions that subject her to the jurisdiction of courts in multiple nation states, he added.
In seeking to cross-examine Mr Miltenberger, Ms Dunne’s lawyers say Mr Miltenberger’s affidavits have been contradicted extensively in an affidavit of another attorney with both attorneys disagreeing on key issues, including the extent to which there is duplication between the Irish and US proceedings.
In his proceedings, Mr Lehane said he remains unclear of the value of certain alleged transactions between Mr Dunne and Gayle but it appeared these involved “tens of millions of euro in total”.
Ms Dunne, with an address at Greenwich, Connecticut, argues her being subject to proceedings here and in the US creates “real potential” that any assets sought to be recovered risk being depleted, which was not in the interests of her husband’s creditor.
Mr Lehane and the US trustee are trying to divide proceedings in two jurisdictions based on location of assets owned by herself rather than location of the alleged transfers from her husband to herself, she claims. The “artificial separation” of the Irish and US proceedings is “wholly unreasonable and oppressive to me”.
Mr Lehane's proceedings relate to two alleged agreements between Sean Dunne and his wife. The first, dated March 2005, provided Gayle Dunne was to get, for the benefit of herself and the couple's children, 70 per cent of profits from sale of various properties, including the Lagoon Beach Hotel, Cape Town, South Africa. The agreement also related to properties and lands in Dublin and Wicklow.
Mr Lehane claims the alleged agreement has no legal status. He claims some transactions envisaged in that alleged agreement did not take place and, on February 15th, 2008, in another alleged agreement, Mr Dunne purported to transfer his “interest” in the Lagoon Beach Hotel to his wife, along with the full book value of all loans made by him to certain companies. The open market value of those was some €1.95 million, the agreement stated.
In her defence, Ms Dunne says she and Mr Dunne previously agreed, if she married Mr Dunne and started a family with him, he would immediately transfer part of his wealth to her. It states agreements were reached in 2005 and 2008 and a formal share transfer took place in October 2008. It is denied Mr Dunne transferred assets or profits to her as alleged by Mr Lehane.
