Re Sean Dunne (a bankrupt)

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian J. McGovern
• Judgment Date: 10 April 2014
• Neutral Citation: [2014] IEHC 285
• Court: High Court
• Date: 10 April 2014

[2014] IEHC 285

THE HIGH COURT

[No. 2478/2013]

Dunne (a bankrupt), In re

IN THE MATTER OF SEAN DUNNE, A BANKRUPT

RSC O.76 r73

RSC O.76 r76(1)

BANKRUPTCY ACT 1988 S28

SIMPLE IMPORTS LTD & SEVEN IMPORTS LTD v REVENUE COMMISSIONERS & ORS 2000 2 IR 243 1999/23/7430 2000 IESC 40

K (INFANTS), IN RE 1962 3 AER 1000 1962 3 AER 178 1962 3 WLR 752

IRISH BANK RESOLUTION CORP LTD & ORS v QUINN & ORS UNREP KELLY 11.12.2012 2012/18/5283 2012 IEHC 510

DIRECTOR OF CORPORATE ENFORCEMENT v SEYMOUR UNREP O'DONOVAN 16.11.2006 2006/15/3126 2006 IEHC 369

DIRECTOR OF CONSUMER AFFAIRS v SUGAR DISTRIBUTORS LTD 1991 1 IR 225 1991 ILRM 395 1991/2/365

MARKS v BEYFUS 1890 25 QBD 494

D v NATIONAL SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN (NSPCC) 1977 1 AER 589 1978 AC 171 1977 2 WLR 201

BANKRUPTCY ACT 1988 S61

Bankruptcy - Official Assignee - Duties - Return of items - Cross examination - Validity of Warrant - Beneficial Ownership of premises - Reliance on Hearsay evidence - Confidential papers - Application for stay pending the determination of application - Dual Bankruptcy

Facts: On 4 ^thDecember 2013 a motion was issued on behalf of Traviata Ltd, Gayle Dunne, John Dunne and Lucy Rainey, directing the Official Assignee to return items of property seized at a property in County Kildare (the premises) to the applicants, an order directing the Official Assignee to account to the applicants in respect of items of property removed and for an injunction restraining the Official Assignee from entering upon the premises. On 28 ^th February 2014, the bankrupt issued a notice requiring the attendance of the Official Assignee for cross-examination and the matter was put before the Court. The issue arising before the Court was the bankrupt”s challenge to the validity of the warrant obtained pursuant to s. 28 of the Bankruptcy Act 1988. There was a dispute of the issue of the beneficial ownership of the premises and contents. The bankrupt alleged the premises were owned by Traviata Ltd. Mr Justice Brian J McGovern stated it was the Official Assignee”s duty to determine whether there was any property of the bankrupt at the premises which could be claimed as part of the bankrupt”s estate. The bankrupt disputed the Official Assignee”s belief that there were items in his premises. Mr Justice Brian J McGovern cited Simple Imports Ltd v Revenue Commissioners [2000], to the effect the District Judge would be entitled to rely on hearsay material which would not be admissible in legal proceedings and advised he was bound by such decision. Mr Justice Brian J McGovern stated the bankrupt had shown no grounds upon which the s. 28 warrant was defective and that the judge was entitled to rely on hearsay evidence. Mr Justice Brian J McGovern stated it was a matter for the Court to decide whether its” officers should be cross-examined and John Dunne, Gayle Dunne and Traviata Ltd sought reliefs as to the return of goods on the premises. Mr Justice Brian J McGovern cited Irish Bank Resolution Corporation & Ors v Quinn & Ors[2012], referred to cases such as Director of Consumer Affairs v Sugar Distributors[1991] and Marks v Beyfus[1890] and held the Official Assignee was entitled to rely on information without disclosing its” source when he made an application for a s.28 warrant.

The bankrupt sought an order for the delivery of confidential papers connected to Family Law Litigation of which he was involved and Mr Justice Brian J McGovern held whether the Official Assignee was entitled to retain and examine papers which he seized at the premises was an issue for argument or agreement, which did not involve cross-examination. Mr Justice Brian J McGovern held the application by the bankrupt for an order staying further applications by the Official Assignee pending the determination of his application to show cause against the bankruptcy was moot as the application was determined in a previous judgment by him and likewise the bankrupt”s application for an order restraining the Official Assignee from exercising any of his functions or powers must also fail. Due to the bankrupt”s prior US bankruptcy, all the bankrupt”s property was vested in the US bankruptcy estate and Mr Justice Brian J McGovern held it had to be considered against the background of a dual bankruptcy in the United States and in the Republic of Ireland to the fact by a US bankruptcy order, the automatic worldwide stay on proceedings against the bankrupt pursuant to US law was varied to allow for the adjudication hearing in this jurisdiction.

Held by Mr Justice Brian J McGovern he refused the reliefs sought by the bankrupt and Gayle Dunne, John Dunne, Traviata Ltd and Lucy Rainey and held if no order was made directing the cross-examination of any of the afore-mentioned individuals, he would make no order on the Official Assignee”s application for cross-examination of those parties.

1 JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 10th day of April 2014

2 1. This matter comes before the court on foot of a number of notices of motion. On 3 ^rd December, 2013, the bankrupt issued a notice of motion seeking to cross-examine the Official Assignee. This motion was returnable for 9 ^th December, 2013, and was heard on 5 ^th March, 2014. On 6 ^th March, 2014, I delivered a judgment arising out of the hearing of that motion. I concluded that the Official Assignee is not a "witness" within the meaning of O. 76, r. 73, and that if the bankrupt wished to cross-examine the Official Assignee on foot of an application made pursuant to O. 76, r. 76(1), it would be necessary for him to bring an application to the court for liberty to cross-examine, setting out on affidavit the matters on which he wishes to cross-examine the Official Assignee and why it is necessary for him to do so.

3 2. On 4 ^th December, 2013, a motion was issued on behalf of Traviata Ltd., Gayle Dunne, John Dunne and Lucy Rainey, directing the Official Assignee to return items of property seized at 19, Churchfield, Straffan, County Kildare to the applicants, an order directing the Official Assignee to account to the applicants in respect of items of property removed and for an injunction restraining the Official Assignee from entering upon or interfering with the property at 19, Churchfield, Straffan, County Kildare. This motion was returnable for 9 ^th December, 2013, and was adjourned on 5 ^th March, 2014, to the hearing that took place on 19 ^th March, 2014.

4 3. On 28 ^th February, 2014, the bankrupt issued a notice requiring the attendance of the Official Assignee for cross-examination on three affidavits. This application was brought pursuant to O. 76, r. 73 of the Rules of the Superior Courts. This matter was canvassed in argument before the court on 5 ^th and 19 ^th March, 2014.

5 4. By notice of motion issued on 13 ^th March, 2014 (returnable for 19 ^th March, 2014), the bankrupt sought an order directing the Official Assignee to attend for cross-examination on his affidavits sworn on 26 ^th November, 2013, 9 ^th December, 2013 and 10 ^th February, 2014. He also sought an order excising so much of the said affidavits of the Official Assignee as contain hearsay evidence, and he sought a declaration that the Search Warrant of 26 ^th November, 2013, permitting the Official Assignee to search the premises at 19, Churchfield, Straffan, County Kildare is defective on its face and invalid.

6 5. In March 2014, the Official Assignee brought a motion pursuant to O. 76, r. 73 and/or O. 40, r. 1 of the Rules of the Superior Courts directing that the following parties attend for cross-examination on their affidavits:

7 The bankrupt, in respect of affidavits sworn on 30 ^th November, 2013, and 17 ^th January, 2014;

8 John Dunne, in respect of affidavits sworn by him on 6 ^th and 11 ^th December, 2013;

9 Gayle Dunne, in respect of affidavits sworn on 30 ^th November, 2013, and 18 ^th December, 2013, and

10 Martine Fleming, in respect of affidavits sworn on 29 ^th November, 2013, and 9 ^th January, 2014.

11 6. At the hearing of the motion on 19 ^th March, 2014, counsel for the Official Assignee informed the court that if no order for cross-examination was directed against the Official Assignee, he will not be seeking to cross-examine the other deponents.

12 7. The main issue arising on foot of the various motions before the court is the bankrupt's challenge to the...