The High Court has refused to adjourn proceedings brought by a financial fund-appointed receiver seeking the repossession of a house owned by GAA star Davy Fitzgerald.
Receiver James Anderson of Deliotte who was appointed by Pepper Finance Ireland DAC has brought proceedings seeking the possession of a property, which Mr. Fitzgerald owns but where his sister Helen Fitzgerald has resided for several years, at Clonara, Sixmilebridge in Co Clare.
Mr. Fitzgerald acquired the property with loans from ACC Bank that were purportedly acquired by Pepper in 2019.
In a pre-trial application to the court Ms. Helen Fitzgerald sought to have the repossession application adjourned until the Residential Tenancies Board (RTB) had adjudicated on an issue raised by her.
Tenancy
She claims that as a tenant of the property, her tenancy can only be lawfully ended by the service of a valid notice of termination.
She claims that no such notice has been served on her, and has made a referral to the RTB, a body whose functions include the provision of a dispute resolution service for tenants and landlords.
She further claimed that the receiver's repossession proceedings should be put on hold and adjourned until the RTB had determined the matter.
The application was opposed by the plaintiffs.
Ruling on the adjournment application Mr. Justice Garrett Simons refused the adjournment application and said the case should be readied for hearing before the High Court.
In his ruling, the judge said the determination of issues raised by Ms. Helen 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.
RTB jurisdiction
There was nothing in the 2004 Residential Tenancies Act that states that the RTB has exclusive jurisdiction to decide whether or not a valid tenancy ever existed, the judge said.
The judge said that his judgment should be brought to the attention of the RTB.
When the dispute was previously mentioned before the Deputy Master of the High Court, the court official who deals with pre-trial matters, last October Mr Fitzgerald's lawyers raise several issues about loans he acquired from ACC, including the ones acquired by Pepper.
The former goalkeeper and coach on the RTÉ Television programme Ireland's Fittest Family claims include that he is the victim of a fraud that has resulted in proceedings being brought against him before a Portuguese Court.
Portuguese properties
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.
Mr. Fitzgerald claims that a former ACC Bank official Jarlath Mitchell, whom he had professional dealings with several years ago, entered his name on the "false mortgages and documents."
Mr. Michell, it is alleged, was jailed in 2013 for two years after he admitted stealing over €450,000 from customers to pay off debts from unsuccessful investments in the property market.
As a result, Mr. Fitzgerald has brought proceedings against UK-based Mr. Mitchell and ACC Bank and has linked those proceedings to the action brought against him by Pepper and Mr. Anderson.
Mr. Fitzgerald also claims that the repossession claim should be before the Circuit and not the High Court.
Mr. Fitzgerald further claims that he wants to redeem the mortgage of over €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 claim that he was given insufficient and heavily redacted information about his loan from Pepper.
Lawyers for the fund and the receiver rejected Mr. Fitzgerald's criticism of them.
Written By: High Court reporters
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