Bank of Ireland & anor -v- O'Donnell & anor [2016] IECA 227 (27 July 2016)

Bank of Ireland & anor -v- O'Donnell & anor [2016] IECA 227 (27 July 2016)

The Court held that both the right of residence and the claim under the Family Home Protection Act 1976 are personal rights, not assignable, and do not vest in the Official Assignee upon bankruptcy. Therefore, the bankrupts may defend the proceedings and assert these claims in their own right.

Citation
[2016] IECA 227
Parties
Respondent/plaintiff: The Governor and Company of Bank of Ireland; Respondent/plaintiff: Tom Kavanagh; Appellant/defendant: Brian O’Donnell; Appellant/defendant: Mary Patricia O’Donnell
Jurisdiction
Ireland
Judgment Date
27 July 2016
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal allowed in part and varied
Legal Topics
Vesting of Property in Bankruptcy, Right of Residence, Family Home Protection Act 1976, Personal Vs. Proprietary Rights, Standing to Defend or Counterclaim Post Bankruptcy
Bankruptcy Law Property Law Family Law Vesting of Property in Bankruptcy Right of Residence Family Home Protection Act 1976 Personal Vs. Proprietary Rights Standing to Defend or Counterclaim Post Bankruptcy

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Parties

The Governor and Company of Bank of Ireland

Respondent/plaintiff

Tom Kavanagh

Respondent/plaintiff

Brian O’Donnell

Appellant/defendant

Mary Patricia O’Donnell

Appellant/defendant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Does a right of residence in a house on unregistered land vest in the Official Assignee upon bankruptcy?
  2. 2 Can a bankrupt defend trespass proceedings or assert claims under the Family Home Protection Act 1976 in their own right, or only through the Official Assignee?
  3. 3 Are claims under the Family Home Protection Act 1976 and rights of residence personal or proprietary for bankruptcy purposes?

Ratio Decidendi

The Court held that both the right of residence and the claim under the Family Home Protection Act 1976 are personal rights, not assignable, and do not vest in the Official Assignee upon bankruptcy. Therefore, the bankrupts may defend the proceedings and assert these claims in their own right.

Court Disposition

Appeal allowed in part and varied

Orders

  • The bankrupts are entitled to defend the proceedings and assert claims of right of residence and under the Family Home Protection Act 1976 in their own right;
  • Other claims relating to the property or estate remain vested in the Official Assignee;