A businessman has failed to show the former home of himself and his ex-wife, bought in trust by her parents for €3.65 million, was a wedding 'gift', the High Court has ruled.
Ms Justice Bronagh O’Hanlon rejected claims by Brendan O’Rourke, who married Diane O’Rourke in August 2004, that he was lead to believe Furness Hall in Naas was, or would become the property of himself and Diane O’Rourke after three years of marriage.
Nor had he shown the property was a wedding “gift” to the couple from her parents, the judge ruled.
His claims had been disputed by his former father in law, developer Dermot O’Rourke, who said he always intended to buy his daughter a property for her to live in and would decide, after an undetermined number of years, whether to give the property to her.
“Until I knew the marriage was going to last, which I wasn’t certain about, there would be no question of giving beneficial ownership to anybody,” Dermot O’Rourke had told the court.
Deficit
The judge said Dermot O'Rourke and his wife Perle had accepted Furness Hall is now in negative equity. She also noted their daughter had in 2012 surrendered keys of the property to Ulster Bank which claims sums due to it under loans made to Dermot O'Rourke are a multiple of the value of Furness Hall.
The judge said Brendan O’Rourke remains in possession of Furness Hall, has had use of it rent free for 13 years, has excluded all others from it over “a long number of years” and has used it for rental and business purposes.
She was giving judgment on Thursday on proceedings by Brendan O’Rourke against Dermot O’Rourke, the latter’s wife Perle and Ulster Bank DAC.
The judge said Dermot O’Rourke agreed in June 2004 to buy Furness Hall for €3.65 million.
The property was to be acquired by Dermot O’Rourke and his wife Perle as trustees for the benefit of their daughter Diane.
She dismissed Brendan O’Rourke’s claims the use of the trust structure was motivated solely by tax considerations and not out of Dermot O’Rourke’s concerns about the marriage.
She accepted Dermot O’Rourke’s evidence the property was bought in trust and he had concerns about the marriage between Brendan O’Rourke and his then 23 year old daughter.
It was “quite clear” the legal title to Furness Hall is, and has at all material times, been in the name of Dermot O’Rourke and his wife Perle, she found.
She also noted, arising from further borrowings of Dermot O’Rourke, there was a trust deficit of some €200,000. She found Furness Hall was never transferred to either Brendan O’Rourke or Diane O’Rourke.
Neither of them, for example, had paid Capital Acquisitions Tax on the property and there was no completed gift, she said. She accepted evidence of Diane O’Rourke and her father in relation to the trust being set up as a place for the married couple to live in and nothing further was promised.
Brendan O’Rourke’s claim that he thought the property could be gifted to him and a mortgage taken out on it without his signing any documents, and without the necessary tax obligations being complied with, was “simply not believable”. Unfortunately for the plaintiff, some of his evidence is unreliable and in some instances it is “fabricated”, she said.
It was “simply not credible” he did not know the property was held by a trust. Addressing his claims of having spent up to €1.8m on maintaining and renovating the property in reliance on alleged representations as to ownership, she said whatever monies were spent by him and Diane O’Rourke on Furness Hall were for their immediate enjoyment of the property.
The defendants had claimed the value of works done by him had a value of about €250,000 and had denied the works were done in reliance on representations made to him.
