The Supreme Court dismissed appeals by Thomas Homan and James Homan and affirmed High Court orders made under the Proceeds of Crime Act, 1996. The orders concerned a dwellinghouse at 67 Seannacloc Tower, Blarney, a car and a motorcycle, and the appointment of a receiver with power of sale over the house.
The appeal concerned a High Court order made on 7 September 2001 under section 3 of the Act and a separate order made on 26 October 2001 under section 7 appointing the receiver. In a judgment delivered on 28 November 2006, Mr Justice Hardiman found no ground to disturb the trial judge’s findings or the orders.
The house and its mortgage were in James Homan’s name. Evidence before the High Court included that James signed the building contract and made stage payments by cheque, while the builder saw Thomas at the site about twice a week during construction. Thomas lived in the house with his wife and two children; James lived elsewhere. The plaintiff’s case was that Thomas funded the mortgage repayments through a cash-funded account in James’s name. The trial judge accepted the plaintiff’s evidence and rejected James’s account.
The Supreme Court rejected the appellants’ complaints about the way the section 3 hearing had been conducted, including that no statement of claim had been ordered and that discovery had been refused. Those points had not been pursued through the relevant appeals in the High Court proceedings. The Court also rejected challenges to the admission of hearsay and belief evidence under the statutory scheme. It said an admissible statutory belief could establish a prima facie case, but was not conclusive and could be answered by defence evidence. Here, the trial judge had found reasonable grounds for the plaintiff’s belief, subject to limits concerning one aspect of the belief about James.
The appellants’ limitation argument was raised for the first time in the Supreme Court. The judgment also cited an earlier decision holding that a section 3 order was not an order of forfeiture in the ordinary sense. The Court declined to entertain the late argument.
The receiver order was challenged on the basis that it depended on the section 3 order and that there was no equitable reason for it, given the mortgage payments and the family’s occupation of the house. The Court rejected those grounds. It noted evidence, uncontradicted before the High Court, that the insurance policy was likely to become void, which it considered sufficient to justify a receiver with power of sale. The judgment affirmed the orders; it did not make a separate finding about the appellants’ ultimate entitlement to the property.