Sean Dunne loses bid to set aside Irish bankruptcy

Developer Sean Dunne has lost his Supreme Court bid to set aside his Irish bankruptcy arising from default on loans of €164 million isued to buy properties in Dublin.

A three-judge Supreme Court rejected claims by the now US based developer his July 2013 adjudication of bankruptcy by the Irish High Court cannot stand on grounds including his having previously filed for bankruptcy in the US.

Mr Dunne had argued Irish bankruptcy laws do not allow for a double or dual bankruptcy findings in different jurisdictions.

Ulster Bank and Nama, Mr Dunne's largest creditor, opposed his appeal and argued the Irish adjudication should remain undisturbed.

The appeal arose after Ulster Bank brought a petition in February 2013 to have Mr Dunne adjudicated bankrupt here over default on loans of €164m. The following month, Mr Dunne filed for bankruptcy in the US state of Connecticut, where he was based, when he claimed to have debts of $1billion and assets of $55 million.

In July 2013, he was adjudicated bankrupt in Ireland. When the High Court refused in December 2013 to set aside that adjudication, Mr Dunne appealed to the Supreme Court.

In a detailed 55-page judgment on Friday, Miss Justice Mary Laffoy, with whom the Chief Justice, Mrs Justice Susan Denham and Mr Justice Peter Charleton agreed, dismissed the appeal.

Miss Justice Laffoy said the appeal raised “a fundamental question” in relation to the operation of Irish law on bankruptcy, meaning persoanl insolvency as distinct from corporate insolvency. It was very surprising there was no record of the principal issue raised by Mr Dunne in this appeal having been previously addressed by the Irish courts, she added.

Dealing with the three central claims by Mr Dunne, the judge rejected the first of those, that the High Court had no jurisdiction to make the bankruptcy adjudication order in the context of Mr Dunne having initiated bankruptcy proceedings in the US prior to the Irish adjudication.

The High Court had jurisdiction, when it heard Ulster Bank’s petition on July 29th 2013, to make an order adjudicating Mr Dunne bankrupt notwithstanding the pre-existence of the Chapter 7 proceedings in the US bankruptcy court, the judge said. That jurisdiction was subject to proof that the bank had complied with the applicable statutory and procedural requirements, she added.

She also dismissed Mr Dunne’s claim that the Irish bankruptcy adjudication order was obtained in breach of Mr Dunne’s procedural rights udner the rules of the superior courts here, particulalry his right to notice, including statutory notice, of the proceedings.

Mr Dunne’s failure to appeal the High Court findings concerning whether there was compliance with certain requirements of the 1988 Bankruptcy Act meant the issue whether or not he was domiciled here when the bank’s petition was presented in February 2013 meant that isue was “moot” or pointless and the requirements the relevant provision had overall been complied with, the judge also found.

However, if it was necessary for the Supreme Court to determine the domicile issue, it would not be possible for the court to conclude Mr Dunne had proven he was not domiciled in the State on February 12th 2013, when the bank presented its petition to the High Court, by reason of having acquired a domicile of choise in the US, she said.

She also ruled, when the petition was heard here on July 29th 2013, the High Court was entitled to find there was sufficient service of the petition on Mr Dunne.

In any event, Mr Dunne had not suffered any prejduice having been afforded the opportunity to show cause to pursue all of his arguments against the validity of the adjudication and to appeal to the Supreme Court, the judge added.