The High Court has refused Gerard Burke and Caroline Burke’s applications to dismiss or strike out proceedings brought by AIB Mortgage Bank and Allied Irish Banks PLC over three property transfers the banks allege were made to defraud creditors.
In a judgment delivered on 10 March 2023, Mr Justice Cregan rejected the defendants’ arguments that the banks had delayed bringing the case and that the fraud and conspiracy claims should be removed from the pleadings. The court did not decide whether the allegations were true. It said that question would be for the trial.
The banks’ case concerns transfers made in May 2018, April 2019 and March 2020. They allege the properties were transferred to Caroline Burke, Gerard Burke’s daughter, for no or inadequate consideration while Gerard and Teresa Burke owed substantial sums to the banks. The banks are seeking orders setting aside the transfers.
Gerard and Teresa Burke had consented to judgments in July 2015 for €9.5 million and €8.9 million respectively, which remained unsatisfied. The judgment records that the banks first learned of the earliest transfer in November 2018, and issued the present proceedings in May 2020.
The defendants argued that the banks should have brought the case sooner and relied on Order 122, Rule 11, which allows an application to dismiss a case where there has been no proceeding for two years. The judge said that rule did not apply: steps in the proceedings had occurred within the relevant two-year period. He also held that the case arose from later property transfers and was a separate cause of action from the 2015 debt judgments. The banks had brought the proceedings within the applicable six-year period, he said.
The defendants also sought to strike out the fraud and conspiracy claims as frivolous, vexatious, scandalous or insufficiently pleaded. The judge found the allegations clear and appropriate to the case as pleaded, while stressing that their merits remained for trial. He noted that the defendants could seek further particulars and that applications to amend their defences would be heard in due course.
The defendants disputed the banks’ account of the transfers. Their affidavits described transactions involving a third party, sales to repay a secured lender, and a family home conveyed for consideration with a life interest. The banks disputed those explanations, and the judgment records that supporting details and documents had not been provided. These matters were not finally determined in the applications.
The court refused both applications: to strike out the proceedings for delay and to strike out the fraud and conspiracy pleadings.