The Court of Appeal has dismissed Thomas McFeely’s appeal against an order extending his bankruptcy by four years and 10 months, leaving in place a discharge date of 30 May 2020.
The appeal concerned a High Court order made by Costello J. on 1 June 2016 under section 85A of the Bankruptcy Act 1988. The maximum extension permitted was five years. The High Court reduced that period by two months, taking account of McFeely’s age, then 67. He had been adjudicated bankrupt on 30 July 2012.
The Official Assignee had sought the extension, alleging that McFeely failed to cooperate with the administration of his estate and failed to disclose assets. The High Court found that the failures were deliberate and ongoing. Among the matters it considered were McFeely’s address, a statement of affairs it found incomplete, and interests in apartments at Aras na Cluaine and units at the Old Saw Mills Industrial Estate in Dublin 12.
McFeely challenged the use of documents taken from Coalport Building Company’s leased business premises at 1 Holles Street, Dublin. The High Court had concluded that the section 27 warrant did not authorise entry to premises leased to Coalport and that the receiver could not give permission to enter. As there was no cross-appeal on that conclusion, the Court of Appeal proceeded on the basis that the entry was unlawful.
However, the appeal court held that McFeely had not shown that his own constitutional rights were breached. It said the rights affected by entry to the leased premises, if any, were Coalport’s, and that McFeely could not raise a claim on the company’s behalf. The court also held that, in the circumstances, the trial judge was entitled to admit and rely on the seized materials in the civil bankruptcy proceedings.
The appeal court separately upheld the High Court’s finding that the evidence, including affidavit evidence from both sides, supported a conclusion that McFeely had not met his statutory cooperation obligations. It also rejected his argument that the Official Assignee’s decision to bring the extension application was reviewable in the manner he proposed. The court said the application itself did not determine McFeely’s rights; the court’s decision on it did.
On proportionality, the Court of Appeal found no error in the High Court’s near-maximum extension. It considered the established non-cooperation to be at the upper end of the seriousness spectrum and dismissed the appeal.