Seán Dunne has appealed a refusal to permit him cross-examine his Irish bankruptcy official in a forthcoming hearing aimed at extending the developer’s bankruptcy over alleged non-cooperation and hiding income and assets.
Mr Dunne, adjudicated bankrupt here in July 2013, was due to exit bankruptcy in July 2016 but cannot pending the hearing of the application by official assignee Chris Lehane to extend it by the maximum five years permissible.
Mr Dunne opposes any extension and the High Court was previously told it was of “paramount importance” to him to “get free of the shackles of bankruptcy”. On Wednesday, Mr Dunne appealed to the Court of Appeal against the High Court’s refusal last February to permit cross-examination of Mr Lehane in the extension hearing.
Ms Justice Caroline Costello said she was unable to identify conflicts in affidavits of Mr Dunne and Mr Lehane “relevant to the issues to be determined” so as to make cross-examination of Mr Lehane necessary to justly decide the extension application.
Outlining the appeal, Bill Shipsey SC, for Mr Dunne, argued the developer is entitled under rules governing bankruptcy to cross-examine Mr Lehane about the basis for his application. The High Court also has discretion to direct cross-examination, he said.
There was no basis for extending the bankruptcy and a number of affidavits from Mr Dunne showed “manifest contests” concerning Mr Lehane’s allegations. The fact Mr Lehane had been provided with relevant documents and materials via the US trustee administering Mr Dunne’s bankruptcy there was also an example of his client’s co-operation, counsel added.
Serious dispute
Mark Sanfey SC, for Mr Lehane, argued that Mr Dunne had failed in his affidavits to show a serious dispute on the facts on which Mr Lehane based his belief underlining the extension application and there was no basis for cross-examination.
An example of non co-operation was Mr Dunne had given Mr Lehane his address as a property in Connecticut that is “unoccupied and unfurnished”, counsel said. Mr Dunne was also not entitled to “thumb his nose” at Mr Lehane by asserting co-operation with his US trustee was sufficient to establish co-operation in his Irish bankruptcy.
The High Court had found affidavits from Mr Dunne had not contested most of the facts concerning his engagement with Mr Lehane and the most recent affidavit from Mr Dunne did not change the position, he argued.
At the conclusion of arguments, the three-judge Court of Appeal, comprising Ms Justice Mary Finlay Geoghegan, Mr Justice Michael Peart and Mr Justice Gerard Hogan, reserved judgment to a later date.
Ulster Bank had petitioned the High Court in February 2013 to have Mr Dunne adjudicated bankrupt here over default on some €164 million in loans. The following month, Mr Dunne filed for bankruptcy in Connecticut, US, when he claimed to have debts of $1 billion and assets of $55 million.
In July 2013, he was adjudicated bankrupt here. In seeking to cross-examine Mr Lehane, Mr Dunne said the latter had made specific allegations concerning the Lagoon beach hotel in South Africa; “Walford”, Shrewsbury Road, Ballsbridge, and a property at Churchfields, the K Club, Straffan, Co Kildare.
Mr Lehane disputes the validity of transfers of those properties by Mr Dunne, has obtained freezing orders concerning the Lagoon Beach hotel and has also taken proceedings against Gayle Dunne and John Dunne, a son of Seán Dunne.
