Cork developer Michael O’Flynn has been blocked by the High Court from raising any objections to the personal insolvency agreement of a neighbour John O’Driscoll over a guarantee on a €2.2 million loan.
The developer who contended that Mr O’Driscoll from Ovens, Co Cork and a brother of Rugby international Mick O‘Driscoll was allegedly not insolvent failed in his bid to overturn a Circuit Court ruling that he had no right to be heard on the matter.
In the High Court, Mr Justice Alexander Owens upheld the Circuit Court ruling that because Mr O’Flynn, who had been invited by Mr O’Driscoll’s personal insolvency practitioner to file a proof of debt did not do so, he did not have locus standi which is a right to be heard.
Mr Justice Owens in a ruling from the bench said ”a person who has not proved his debt might as well be in Burundi, that person is not engaged in the process.”
The judge said the Personal Insolvency Act was quite clear and participation in the creditor process depends on proof of debt.
Mr Justice Owens also awarded costs against Mr O’Flynn.
The High Court decision is being regarded as significant in relation to other personal insolvency cases. It means that the Personal Insolvency Agreement for Mr O’Driscoll now goes ahead as planned.
At issue in the O’Flynn application is an alleged debt of €750,000 plus interest relating to a guarantee on a €2.2 million loan to Ezeon Entertainment Ltd, a company set up in 2007 and which operated the Silly Goose, a pub in Cork which was listed for sale last month.
The other guarantor on the loan is listed in court documents as Ronan O’Gara of Douglas, Co Cork, coach and former rugby player.
In an affidavit to the court Mr O’Flynn also from Ovens, Co Cork said Ezeon purchased and renovated the pub funded by borrowings from Anglo Irish Bank.
The company traded successfully for about two years but with the economic downturn, business was affected, and the borrowings were transferred to NAMA which in turned sold the loan to Blackstone, the US private equity investor.
Mr O Flynn took over the debt from Blackstone in 2014 and the loan guarantee was put in place.
Last year, Mr O’Driscoll was issued with a protective certificate, which shields a debtor from creditors while a PIA, or another debt settlement arrangement, is formulated.
A PIA drawn up by practitioner Alan McGee was subsequently approved at a creditors’ meeting in January this year. Mr O’Flynn did not attend or vote at the meeting.
The approved PIA involved debt of €339,000 with two main creditors, a bank and Revenue. Mr O ’Flynn’s debt was recorded as debt not proven and given a €1 nominal value.
Counsel for Mr O Driscoll , Niall O hUiginn BL instructed by Eugene Carley solicitor told the court Mr O’Driscoll is clearly insolvent.
Mr O’Flynn he said had a “fundamental misunderstanding” of personal insolvency.
Mr O’Flynn, Counsel said, wanted to hold the alleged debt over Mr O’Driscoll.
“To prove a debt has to mean something. Mr O’Flynn has not proven his debt. He chose not to do so. He is not above the process ,” Counsel added.
Other creditors he said had engaged with the process, but one had been “standing on the sidelines throwing stones.”
Counsel for Mr O’Flynn Ciaran Lewis SC contended his client was stuck in the statutory scheme but not outside it.