The High Court’s refusal to adjourn proceedings brought by a receiver appointed by a financial fund which is seeking the repossession of a house owned by GAA manager Davy Fitzgerald is to be appealed to the Court of Appeal.
A stay has, as a result of the appeal, been placed on proceedings brought by receiver James Anderson of Deloitte, who was appointed by Pepper Finance Ireland DAC to seek the possession of the property at Clonara, Sixmilebridge, Co Clare. Mr Fitzgerald owns the house but his sister, Helen Fitzgerald, has resided there for several years.
Mr Fitzgerald acquired the property with loans from ACC Bank that were purportedly acquired by Pepper in 2019.
Mr Justice Garrett Simons last week dismissed Ms Fitzgerald’s pretrial application to have the repossession proceedings adjourned until the Residential Tenancies Board (RTB) had adjudicated on an issue raised by her. She had claimed that her tenancy could only be lawfully ended by the service of a valid notice of termination.
She claims no such notice has been served on her and has made a referral to the RTB, which provides a dispute resolution service for tenants and landlords. She further claimed that the repossession proceedings should be put on hold and adjourned until the RTB had determined the matter. The application was opposed by the plaintiffs.
Binding tenancy
The judge refused the adjournment application and said the case should be readied for hearing before the High Court on the grounds that the determination of issues raised by Ms Fitzgerald, including if she can assert that she has a binding tenancy against the plaintiffs, lies with the High Court and not with the RTB.
There was nothing in the 2004 Residential Tenancies Act stating that the RTB has exclusive jurisdiction to decide whether or not a valid tenancy ever existed, the judge added.
When the matter was mentioned before Mr Justice Simons on Monday, the judge said the receiver and the fund were entitled to their legal costs. However, after being told that the matter was being appealed, the judge placed a stay on the repossession application and the costs orders pending the outcome of the appeal. The judge also gave the sides liberty to apply to the court should the need arise.
When the dispute was previously mentioned before the courts last year, Mr Fitzgerald’s lawyers raised several issues about loans from ACC, including the ones acquired by Pepper.
Fraud
The former Clare hurler’s claims include that he is the victim of a fraud that has resulted in proceedings being brought against him before a Portuguese Court. Mr Fitzgerald claims that his name had, without his knowledge or consent, been put on “false” mortgage documentation in respect of “six or seven” properties in Portugal.
He has brought proceedings over the fraud that he claims has been committed against him, which he has linked to the repossession action. Mr Fitzgerald also claims that the repossession claim should be before the Circuit Court and not the High Court.
He further claims that he wants to redeem the mortgage of more than €200,000 but says he cannot do so because Pepper is demanding an interest surcharge of €25,000, which he claims it is not entitled to.
Mr Fitzgerald’s lawyers have raised questions about the validity of the transfer of the loans from ACC to Pepper and claims that he was given insufficient and heavily redacted information about his loan from Pepper.
Lawyers for the fund and the receiver have rejected Mr Fitzgerald’s criticisms.