The High Court has set aside in full a bankruptcy payment order requiring Sean Dunne to pay €7,000 a month, with the decision applying from the date the order was made in October 2018.
In a judgment delivered on 5 May 2021, Humphreys J. found that Mr Dunne’s net personal income was €1,371.69 a month over the period considered. The court said that level did not warrant a payment order in the circumstances. It also discharged an order that had restrained dealings with his pension and formally dismissed a contempt motion brought over alleged non-compliance with the payment order.
The original order required payments from 25 November 2018 to 25 July 2021. The Official Assignee had opposed Mr Dunne’s application to vary or set it aside, arguing that his incoming funds averaged €11,251.40 a month and that, after allowed expenses, he had €8,877.66 a month available. The judge said that calculation did not distinguish adequately between money provided for Mr Dunne and money provided for his children.
The court considered the pension in principle to be capable of counting as income for a bankruptcy payment order if a bankrupt had a right to draw it down. But the pension manager’s affidavit said Mr Dunne could not draw down the pension until age 70 or crystallisation, neither of which had occurred. The judge found that evidence had not been met by evidence of equal weight and excluded the pension from the means calculation for this application.
The judgment also held that money given to a bankrupt for the benefit of children does not thereby become the bankrupt’s income or asset for the purposes of such an order. Mr Dunne had provided figures showing net personal income of €34,292.22 over 25 months. The judge noted that the figures were not contested on their merits, apart from the legal arguments addressed in the judgment.
The court dismissed Mr Dunne’s motion for third-party discovery against accountant and adviser James Ryan, without prejudice to seeking discovery in a future application where it is relevant and necessary. The judgment said documents for foreign proceedings should generally be sought through those proceedings or an applicable international evidence procedure.
The court also struck out paragraphs 2 to 84 of an affidavit as irrelevant complaints about earlier judges and proceedings. It confirmed that the in camera order would not apply to this judgment, while continuing to cover pleadings, affidavits and proceedings insofar as they refer to family law proceedings. The court did not determine Mr Dunne’s separate appeal concerning the duration of his bankruptcy.