Court denies stay of receivership sale for proceeds of crime property due to lack of injustice evidence.

[2025] IEHC 395

[2024 No. 21 CAB]

[2007 No. 5 CAB]

PROCEEDS OF CRIME

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1996

BETWEEN:

CRIMINAL ASSETS BUREAU

Applicant

-AND-

BARRY O’BRIEN and MAJELLA O’BRIEN

Respondents

JUDGMENT of The Hon. Mr. Justice Alexander Owens delivered on 24 day of June

2025

1. These proceedings relate to a dwelling on a site in Oaktate, County Louth (Oaktate). Oaktate is located off the main road from Dundalk to Carrickmacross, some 11.2 km from Carrickmacross and 13.4 km from the centre of Dundalk.

2. Barry O’Brien and Majella O’Brien are trying to prevent a court-appointed receiver from selling Oaktate.

3. They bought Oaktate in 2003. They borrowed €250,000 from EBS Building Society (EBS) at that time and executed a charge over it to secure repayment of their loan.

4. As long ago as January 2010, in proceeding 2007 No. 5 CAB, this Court determined that they used proceeds of crime to acquire or build Oaktate. This order prevented them from disposing of it. This Court rejected their claim that this order should not be made on the statutory ground that it would give rise to “a serious risk of injustice” to themselves and their family. This Court appointed an officer of the Criminal Assets Bureau (the Bureau) as receiver and directed him to take possession of Oaktate and sell it.

5. This receivership was stayed pending an appeal to the Supreme Court. This appeal was dismissed in July 2013. In 2016 the original receiver was replaced. This Court also authorised registration of the charge executed by Barry O’Brien and Majella O’Brien in favour of EBS as a burden on the Land Registry Folio relating to Oaktate.

6. No steps were taken to sell Oaktate in the period between 2013 and October 2024.

Barry O’Brien and Majella O’Brien continued to reside in Oaktate with their family.

They had two more children during that period.

7. In October 2024 the Bureau also applied to this Court in proceeding 2024 No. 21 CAB for a disposal order for the transfer of “any” net proceeds of an intended sale by the receiver to the Minister for Public Expenditure, National Development Plan Delivery and Reform (the Minister).

8. The Bureau applied to this Court in proceeding 2007 No. 5 CAB to appoint a replacement receiver. I granted this application on 18 December 2024. I also gave liberty to Barry O’Brien to apply for a stay on exercise by the receiver of powers conferred by the 2010 order.

9. Barry O’Brien and Majella O’Brien have not kept up payments on their mortgage.

Their mortgage debt may now exceed the value of Oaktate. They now want this Court to stay the receivership to facilitate a transfer of Oaktate under the “Mortgage to Rent” scheme. This would allow them to remain in occupation of their home as social housing tenants of a transferee from their mortgagee. In 2022 a proposed transferee indicated that it was unwilling to advance an application by Majella O’Brien to participate in this scheme.

10. Alternatively, they wish for a stay on the receivership to allow them to continue to live in Oaktate until their mortgagee sells it.

11. Barry O’Brien and Majella O’Brien can only succeed in resisting a sale of Oaktate by the receiver by demonstrating to my satisfaction that the order made against them in 2010 should be set aside or varied to allow a transfer of title by their mortgagee under the “Mortgage to Rent” scheme because the 2010 order now causes “any … injustice.”

12. The analysis of proportionality which I am obliged to engage in at this stage relates to whether I should put a stay on the receivership to permit them an opportunity to advance a full-blown application under s.3(2) of the Proceeds of Crime Act 1996 (the 1996 Act) to enable them to advance one or other of their two proposals for the disposal of Oaktate.

13. I must carry out the balancing exercise required by the judgment of Hogan J. in Clare County Council v. McDonagh [2022] 2 I.R. 122 ([2022] IESC 2) in any case where this Court is enforcing powers which result in loss of enjoyment of a dwelling.

14. The evidence which I have received is not sufficient to justify a stay on further enforcement of the receiver’s obligations to act on foot of the 2010 order.

15. Barry O’Brien and Majella O’Brien have provided limited evidence in support of their application for a stay. It is far from clear that there is any realistic prospect that they will be able to avail of the “Mortgage to Rent” scheme.

16. They have yet to adduce sufficient evidence to demonstrate that they can make a stateable case that a sale of Oaktate by the receiver now would produce a result which would be so disproportionate to their rights as to cause an injustice.

17. The balance of justice does not lie with allowing them to reside in Oaktate until, if ever, their mortgagee gets around to enforcing its security by taking possession and selling it.

18. The Bureau’s application for a disposal order is premature. This application relates to a non-existent asset.

19. I will now explain how I have arrived at these conclusions. I will set out relevant provisions of the 1996 Act and explain their interaction with Article 40.5 of the Constitution of Ireland.

20. In general, no person who enjoys a benefit from property representing proceeds of crime can legitimately complain about being deprived of that benefit, unless that person gave full value for that benefit while unaware of criminal provenance or can otherwise show “serious risk of injustice.” In this context, a benefit may take the form of ownership, occupation, use or other control of property derived from use of proceeds of crime. The 1996 Act gives statutory effect to this principle.

21. Section 3(1) of the 1996 Act gives the High Court power to make a finding against a respondent who is found to be in “control” of specified property; that it represents or was acquired with proceeds of crime. If this Court so finds, it must issue an order which prevents any respondent and others from dealing with or depleting the value of that property (an interlocutory order). However, the Court may not make an interlocutory order in respect of specified property “if it is satisfied that there would be a serious risk of injustice” if such an order were made.

22. An interlocutory order conclusively determines, as between the parties to any application for that order, the legal status of any specified property as representing proceeds of crime.

23. These provisions apply to all types of property, including domestic dwellings.

Inviolability of the dwelling, save in accordance with law, as guaranteed by Article

40.5 of the Constitution of Ireland, is not an absolute right. Rights to family life and privacy recognised by the European Convention on Human Rights are not absolute either. These rights and protections are qualified by provisions of the 1996 Act in any case where a dwelling is found to represent proceeds of crime.

24. In general, and “subject …to special problems which may arise in particular cases, a person in possession of the proceeds of crime can have no constitutional grievance if deprived of their use”: see Keane C.J. in Murphy v. G.M. [2001] 4 I.R.

113 at 153. This general observation applies to dwellings acquired with proceeds of crime.

25. A respondent who seeks to resist the making of an interlocutory order in respect of specified property which has been found to be derived from proceeds of crime must establish that the making of that order would result in “a serious risk of injustice”:

see s.3(1) of the 1996 Act. A respondent who seeks to have an interlocutory order set aside or varied must establish that the order “causes…injustice”: see s.3(3) of the 1996 Act. A respondent who seeks to resist an application for a disposal order of property found to be derived from proceeds of crime under s.4(1) of the 1996 Act must establish that the making of such order would result in “a serious risk of injustice”: see s.4(8) of the 1996 Act.

26. These proportionality tests oblige respondents and others claiming interest to demonstrate that any specific item of property found to be derived from proceeds of crime ought not to be subject to the statutory regime of restraint, sale and disposal. This obligation to establish “injustice” applies to all types of enjoyment of all forms of property.

27. The interest of members of a family unit in being allowed to remain in occupation of a dwelling “of itself cannot operate to defeat the public interest requirement of depriving persons of property obtained by means of the use of the proceeds of crime”: see Criminal Assets Bureau v. O’Brien [2010] IEHC 12 at para. 4.3.

28. Respondents to proceedings which result in an interlocutory order and those associated with them can have no legitimate expectation that they will be permitted to continue to occupy residential property which has been found to represent proceeds of crime.

29. An issue in any case is whether evidence demonstrates that enforcement of remedies which the law gives for the purpose of depriving wrongdoers and those associated with them of benefits acquired through use of proceeds of crime will result in disproportionate interference with other rights which the law is obliged to vindicate or take into account.

30. The effect having to give up occupation of a dwelling is always relevant to proportionality determinations under s.3(1), s.3(3) and s.4(8) of the 1996 Act. The special status of those in occupation of dwellings, whether lawfully or not, must be given appropriate weight: see Clare County Council v. McDonagh. This special status arises from the inviolability of the dwelling under Article 40.5 of the Constitution.

31. In carrying out these determinations this Court is obliged to examine in detail any evidence tendered and give adequate reasons for any decision which would have the effect of depriving any persons of occupation of their home: see Clare County Council v. McDonagh.

32. This analysis must be conducted within parameters allowed by the 1996 Act.

Respondents must show that continuance of an interlocutory order causes injustice and that it should be set-aside or varied.

33. A non-exhaustive list of factors which may be relevant to these determinations is set out in the judgment of MacMenamin J. in Criminal Assets Bureau v. Kelly [2012] IESC 64 at para. 34: see also the judgment of Butler J. in Criminal Assets Bureau v. Cash [2025] IECA 36.

34. If evidence demonstrates that continued enforcement of an interlocutory order which affects a dwelling would have disproportionate adverse effect on occupants, then it will be unjust that it should remain in place without discharge or variation.

35. The interests of occupants of a dwelling in continuing to reside in their home are also relevant to proportionality determinations in other contexts, such as whether or not a court should grant an interlocutory injunction: see Clare County Council v.

McDonagh.

36. The main issue which I must decide is whether I should put a stay on exercise by a receiver of his powers with a view to permitting Barry O’Brien and Majella O’Brien to pursue an application for an eventual transfer of Oaktate under the “Mortgage to Rent” scheme. A secondary issue is whether I should stay exercise by the receiver of his powers to allow the mortgagee to enforce its security over Oaktate and sell it.

37. An interlocutory order does not, of itself, operate to transfer control or management of property found to be proceeds of crime to the Bureau. In some cases state agencies such as the Garda Síochána are already in possession of property which has been seized in exercise of statutory powers. In other cases property consists of shares or credit balances in accounts maintained in credit institutions. In other cases this property may comprise of land or buildings occupied by a respondent to the application or by some other person as a lessee, family member or permissive occupant.

38. The statutory mechanism for transfer of control and management of property specified in an interlocutory order is set out in s.7 of the 1996 Act. This empowers the High Court to appoint a receiver to take possession and control of property, and to manage and sell it in accordance with court directions. This enables this Court to deprive any respondent and others of benefits from use of property which has been found to comprise or represent proceeds of crime.

39. Section 7(1) of the 1996 Act provides as follows:

“Where an interim order or an interlocutory order is in force, the Court may at any time appoint a receiver-

(a) to take possession of any property to which the order relates,

(b) in accordance with the Court's directions, to manage, keep possession or dispose of or otherwise deal with any property in respect of which he or she is appointed,

subject to such exceptions and conditions (if any) as may be specified by the Court, and may require any person having possession or control of property in respect of which the receiver is appointed to give possession of it to the receiver.”

40. The 1996 Act envisages that a period of not less than 7 years must elapse between the date when an interlocutory order comes into force and the date when the High Court may make a disposal order under s.4(1) for the transfer of that property in favour of “the Minister or to such other person as the Court may determine.”

41. Section 3(3) of the 1996 Act provides as follows:

“Where an interlocutory order is in force, the Court, on application to it in that behalf at any time by the respondent or any other person claiming ownership of any of the property concerned, may, if it is shown to the satisfaction of the Court that the property or a specified part of it is property to which paragraph (I) of subsection (1) applies, or that the order causes any other injustice, discharge or, as may be appropriate, vary the order.”

42. Para. (I) of s.3(1) of the 1996 Act applies to any “particular property” which is shown to the satisfaction of the Court by evidence tendered by any person “does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime”.

43. This allows claims by “the respondent [to the application leading to an interlocutory order] or any other person claiming ownership of any of the property concerned” to have that order set aside or varied by showing either that the property affected by that order does not constitute proceeds of crime, “or that the order causes any other injustice.” Any rights of respondents and of those who have legitimate interests in property which has been found to represent proceeds of crime are thus protected.

44. Section 4 of the 1996 Act provides as follows:

(1) Subject to subsection (2), where an interlocutory order has been in force for not less than 7 years in relation to specified property, the Court, on application to it in that behalf by the applicant, may make an order (“a disposal order”) directing that the whole or, if appropriate, a specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to the Minister or to such other person as the Court may determine.

(2) Subject to subsections (6) and (8), the Court shall make a disposal order in relation to any property the subject of an application under subsection (1) unless it is shown to its satisfaction that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime.

(3) The applicant shall give notice to the respondent (unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts), and to such other (if any) persons as the Court may direct of an application under this section.

(4) A disposal order shall operate to deprive the respondent of his or her rights (if any) in or to the property to which it relates and, upon the making of the order, the property shall stand transferred to the Minister or other person to whom it relates.

(5) The Minister may sell or otherwise dispose of any property transferred to him or her under this section, and any proceeds of such a disposition and any moneys transferred to him or her under this section shall be paid into or disposed of for the benefit of the Exchequer by the Minister.

(6) In proceedings under subsection (1), before deciding whether to make a disposal order, the Court shall give an opportunity to be heard by the Court and to show cause why the order should not be made to any person claiming ownership of any of the property concerned.

(7) The Court, if it considers it appropriate to do so in the interests of justice, on the application of the respondent or, if the whereabouts of the respondent cannot be ascertained, on its own initiative, may adjourn the hearing of an application under subsection (1) for such period not exceeding 2 years as it considers reasonable.

(8) The Court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice.”

45. Others who claim to have an ownership interest in property which is subject to an interlocutory order, can avail of s.3(3) and ss. 4(1) and 4(8) of the 1996 Act to preserve their rights, or to prevent or postpone the making of a disposal order, if they can show that “the [interlocutory] order causes any other injustice”, or that “there would be a serious risk of injustice” to them if the Court were to make a disposal order. The legal effect of a disposal order of a specified property on a respondent to an interlocutory order is to permanently terminate any residual right of that respondent in or to that property: see s.4(4).

46. If continuance of an interlocutory order over property without discharge or variation can be shown to cause injustice to a respondent or another person it will also follow that a disposal order of that property will carry a serious risk of injustice to that respondent or other person, unless it can be made subject to conditions which can protect legitimate interests. Section 4(3) of the 1996 Act allows for notification of those who may be adversely affected by a disposal order. They can then assert their rights.

47. Section 4(1) of the 1996 Act provides that a “disposal order” takes the form of a direction for transfer of property which is the subject of that order.

48. Deprivation of any residual rights of respondents to property takes effect on the date of a disposal order and not on any subsequent date when property is vested on foot of that order.

49. A disposal order affects existing property. At that stage any role of a receiver is confined to taking necessary steps to vest that property in the Minister or such other person as the Court may determine. If that property is transferred to the Minister, it may be sold and the proceeds must be disposed of for the benefit of the Exchequer: see s.4(5) of the 1996 Act.

50. It is not possible for this Court to make a disposal order for the transfer of an item of possible future property such as net receivables on foot of a future contract to sell a house. For this reason I am dismissing the current application by the Bureau for a disposal order of any net proceeds of a future sale of Oaktate.

51. A respondent may apply to have an interlocutory order varied or discharged on grounds that “it causes any other injustice” at any time prior to the making of a disposal order. It follows that a respondent may raise this issue to resist an application for enforcement, such as for the appointment of a replacement receiver, or for a direction that possession of property be delivered up to receiver with a view to sale.

52. A respondent may rely on events which have occurred after the date of an interlocutory order in making this case.

53. Barry O’Brien and Majella O’Brien bought the site on which Oaktate stands in March 2003. The site cost is not disclosed. They borrowed €260,000 from EBS at that time and executed a charge over Oaktate to secure their loan. They built a house on the site. This structure was partially destroyed by a fire in November 2003.

They rebuilt their house and moved into occupation with their children.

54. A valuer’s report prepared in 2022 discloses that Oaktate is a 2 storey, 4 bed, detached house with a sunroom and a stairs into attic space on a site of 1,900 sq.

m. The internal floor area of the house is given at 300 sq. m., approx. A large shed/garage which has been built at the rear of the house may require planning permission. The floor area of this garage and shed is 90 sq. m., approx. Access from the public road is via a gate and tarmac driveway to the front of the property.

55. This report was obtained to establish that Oaktate at that time qualified for inclusion in the “Mortgage to Rent” scheme. The open market value of Oaktate was assessed as €400,000.

56. The Land Registry Folio discloses that Barry O’Brien and Majella O’Brien were registered as owners of Oaktate in April 2006.

57. The status of EBS charge is protected by ss.3(3) and 4(8) of the 1996 Act. These provisions enable its owner to apply to this Court to recognise it and permit enforcement. Were this Court to make a disposal order of Oaktate in specie in favour of the Minister under s.4(1) of the 1996 Act, any transfer would be subject to any rights of the registered charge-holder.

58. The EBS loan and charge over Oaktate were transferred to Mars Capital Finance Ireland DAC (Mars) in April 2021. Mars is now entitled to be registered as owner of that charge in succession to EBS. On 18 December 2024 I varied the interlocutory order to permit this registration.

59. The registered title to Oaktate is also subject to a judgment mortgage which was registered in favour of the Bureau in 2011 against Barry O’Brien’s interest. I presume that this related to unpaid tax.

60. The effect of the determination of the High Court in 2010 was that Barry O’Brien and Majella O’Brien were no longer recognised by public law as entitled to Oaktate.

This judgment mortgage, not being for value, ranks behind the charge for value in favour of EBS. It has a precarious status as a security. I strongly suspect that any right of the Bureau to enforce it is statute-barred.

61. An order of the High Court under s.2(1) of the 1996 Act was registered as an inhibition on the Land Registry Folio for Oaktate in March 2007. The Bureau then began proceeding 2007 No. 5 CAB against Barry O’Brien and Majella O’Brien seeking interlocutory orders in respect of Oaktate and other properties which they controlled.

62. In January 2010 the High Court determined that these properties were acquired with proceeds of crime. The Court made interlocutory orders in respect of all of these properties, including Oaktate.

63. The High Court also appointed the then Chief Legal Officer of the Bureau as receiver of Oaktate and the other properties. The Court directed him to take possession of Oaktate forthwith and to manage and sell it, subject to a stay of nine months. This order envisaged that the Bureau would repay any charge over Oaktate and that the net proceeds of sale be held until after expiry of the 7 year period prescribed by s.4(1) of the 1996 Act.

64. If matters had proceeded as envisaged in 2010, Oaktate would have been sold after the appeal was dismissed in 2013. Any net proceeds of this sale would have been disposed of for the benefit of the Exchequer in 2017.

65. An affidavit by the current Bureau officer states that if he sells Oaktate, “it is not anticipated that the sale will generate a surplus over the amounts due to Mars.” I have not been told when this house went into negative equity.

66. Failure to pay this mortgage should come as no surprise. While the reason for nonpayment has not been explained, the mortgagors had little incentive to keep-up payments on a house which was likely to be taken from them. The longer they were allowed to stay put, the less likely it was that there would be a return for the Exchequer from net proceeds of a sale.

67. The Bureau’s Chief Legal officers, who were court-appointed receivers, failed to carry out this Court’s directions. If there are reasons for their delay or forbearance from taking steps to sell Oaktate, these have not been explained to me. Neither side has raised this passage of time as an issue of particular concern. They do not appear to be unduly exercised about it.

68. There comes a point at which failure by a party to progress litigation may become an abuse of court process. Passage of time may also be relevant to exercise of discretion to vary or discharge interlocutory orders on grounds of injustice.

69. Failure by the Bureau to remove Barry O’Brien and Majella O’Brien from Oaktate could not of itself give rise to any legitimate expectation that they would be allowed to live there indefinitely. However, this feature is relevant to exercise of this Court’s power to vary or set aside an interlocutory order on grounds of injustice and to stay enforcement of a receiver’s powers until a hearing of this type of application.

70. If a family has been living for a long period of time in their home, as is the case here, it is likely that they will suffer much more disruption in their lives if they are obliged to vacate. If this results from prolonged inaction by a public body empowered or mandated by law to remove them, that will also be a relevant consideration. They are entitled to certainty in their lives.

71. If the receiver is allowed to proceed to sell Oaktate, this family, including young children, will be obliged to leave their home and find some other accommodation in or near Dundalk, where the younger children are at school.

72. In this case the balance of justice would firmly lie with maintaining residence of Barry O’Brien and Majella O’Brien with their family in Oaktate if they can show that they have an arguable case that they could succeed in an application for discharge or variation of the interlocutory order on either of the two grounds which they rely on in their application for a stay.

73. A likely lack of a net surplus after Oaktate is sold is also relevant to the balance of justice in the event that Barry O’Brien and Majella O’Brien can establish an arguable case that the interlocutory order should be varied. On the best outcome for the State, the Exchequer will not benefit. The sole purpose of enforcement at this stage is to deprive them of enjoyment and control of proceeds of crime. This, of course, assumes that any claim of Mars to recover the mortgage debt is not statute-barred.

74. On 18 December 2024 the two current applications came on for hearing before me.

The first was in proceeding 2007 No. 5 CAB. It included a request to appoint the current Bureau Chief Legal Officer as replacement receiver, with the power to sell Oaktate, as conferred by the 2010 order.

75. The second was in proceeding 2024 No. 21 CAB. The Bureau sought a disposal order of any net proceeds of an eventual sale by the receiver of Oaktate.

76. On 18 December 2024 I appointed the current Bureau Chief Legal Officer as replacement receiver with the powers conferred by the 2010 order. This was subject to a stay until the outcome of a hearing in the proceeds of crime list on 19 February 2025.

77. I gave liberty to apply for a stay on further exercise by the receiver of the powers conferred by the 2010 order. I also adjourned further consideration of both applications to 19 February 2025.

78. On 19 February 2025 I further adjourned these applications on the basis that they would be heard on 19 March 2025. I directed that any affidavits should be filed and served within two weeks and gave liberty to appear on that date to any person who wished to be heard in relation to those applications.

79. On 18 March 2025 Majella O’Brien swore an affidavit in support of an application that I should stay exercise by the receiver of his powers under the 2010 order.

80. At the hearing on 19 March 2025 the Bureau contended that Barry O’Brien and Majella O’Brien should be precluded from advancing their application for a stay otherwise than in response to its application for the disposal order.

81. The Bureau does not wish to obtain a disposal order for immediate transfer of Oaktate to the Minister. Then Bureau application for a disposal order of any net proceeds of sale by a receiver on foot of a future contract of sale of Oaktate is premature for reasons which I have already explained. The application for a stay can only relate to the receivership.

82. While the affidavit of Majella O’Brien does not explain the “Mortgage to Rent”

scheme, I am familiar with it. It regularly features in evidence in applications for approval of personal insolvency arrangements.

83. This scheme is designed to enable mortgagors, who are unable to meet their payments, to give up their homes and become social housing tenants. In order to be eligible, borrowers must qualify to be treated as social housing tenants. Where borrowers are admitted into this scheme, their mortgagee sells their dwelling to an approved housing body in return for a payment which is agreed between the approved housing body and that mortgagee.

84. Their home is then owned by the approved housing body. They pay rent which is adjusted from time to time by reference to household income. They are also given an option to buy their home after 5 years if their circumstances improve.

85. Barry O’Brien and Majella O’Brien want a stay on the receivership to enable them to process an application under the “Mortgage to Rent” scheme.

86. If they could show that this application has some reasonable prospect of being successful, this Court might well be persuaded to vary or set aside the interlocutory order to permit Mars to transfer Oaktate to an approved housing body on grounds that to do otherwise would cause injustice. This injustice might be to Mars and/or Barry O’Brien and Margaret O’Brien and their family.

87. A stay for such purposes, if granted, would have the same effect as an interlocutory injunction. It will be appropriate to grant this stay if Barry O’Brien and Majella O’Brien demonstrate by evidence that they have a viable claim to qualify for participation in the “Mortgage to Rent” scheme, and an arguable case that the interlocutory order should be varied to permit Mars to transfer Oaktate to an approved housing body under the scheme.

88. If Barry O’Brien and Majella O’Brien could demonstrate that they have a real prospect of succeeding in being admitted to the “Mortgage to Rent” scheme, this would give them a viable route to lawful occupation of a dwelling which they and their family currently enjoy as a benefit derived from proceeds of crime.

89. Barry O’Brien and Majella O’Brien did not provide me with sufficient information to prove the likelihood that they are currently eligible to participate in that scheme or in relation to the possible merits of a variation application of the interlocutory order on grounds that injustice would otherwise result. They produced no evidence that they engaged their lender or in the mortgage arrears resolution process.

90. They did not state whether they were or are employed, or what their household income was or is, or whether they have assets or means which would enable them to meet commitments or to buy Oaktate back from their proposed lessor.

91. They did not state what their monthly mortgage payments were or when they stopped making these payments. They did not tell me why they stopped paying or how much they now owe or what their arrears now are, or whether they are disputing liability or relying on some defence, such as that their mortgagee’s claim is statute-barred and their mortgage is extinguished.

92. In para. 11 of her affidavit sworn on 18 March 2025 Majella O’Brien avoided making any concession of liability in relation to “the debt claimed by Mars DAC.”

For all I know, they may have stopped paying their mortgage many years ago.

93. Majella O’Brien disclosed that they now have 7 children. Her affidavit indicated that all of their children continue to reside in Oaktate. The youngest of their four minor children was born in June 2017. Three of their children are adults in employment.

These children are aged 26, 27 and 32. They are able to contribute to household income.

94. Majella O’Brien averred that in 2022 she initiated an application to become a “Mortgage to Rent” tenant of Home For Life Ltd. She exhibits an “MTR Property Questionnaire” for Oaktate which she completed and submitted on 25 May 2022. In para.5 of this questionnaire she was asked whether or not any litigation was threatened or pending since she bought Oaktate, and, if so, to provide details. She omitted to answer these questions. She should have disclosed that the Bureau obtained an interlocutory order affecting Oaktate in 2010.

95. She also exhibits a letter dated 12 August 2022 from Louth County Council as evidence demonstrating eligibility for special housing support. This letter listed herself and her four minor children. It confirmed that on the basis of her current circumstances she was then eligible for special housing support. She has not explained why her husband and her three adult children were not referred to in this letter.

96. She also exhibits a letter from Home For Life Ltd dated 25 August 2022. This stated that her application was being progressed and stated as follows: “All going to plan, you will receive a formal Offer Letter from your lender… You may have already received this letter.” This letter was accompanied by other documents, including an draft option to re-purchase Oaktate and a draft statutory declaration.

97. Majella O’Brien does not indicate whether she drew the attention of Home For Life Ltd to the interlocutory order. If she had gone to her solicitor as advised by Home For Life Ltd and completed the draft statutory declaration provided under cover of their letter dated 25 August 2022 she would have been obliged to disclose that.

98. She also exhibited a copy of a letter signed by herself and her husband dated 8 July 2022. This confirmed to Mars their inability to pay their mortgage and their willingness to participate in the “Mortgage to Rent” scheme, subject to approval by their local authority of an application for social housing support.

99. Majella O’Brien asserted in her affidavit that: “[a]s a result of information received from Home for Life it is my belief that Servants/Agents of [the Bureau] made contact with Home for Life. Following that contact, Home for Life were no longer willing to progress our application. I have not received any written confirmation for the reasons for the decision of Home For Life.” She also asserted her belief that in the event that a disposal order is not made there would not be an impediment to transfer of Oaktate by Mars to Home for Life Ltd and that she and her family could then become tenants.

100. In my view these assertions do not demonstrate that either Mars or Home For Life Ltd decided not to progress the “Mortgage to Rent” application relating to Oaktate at the behest of the Bureau or that the Bureau contacted Home for Life Ltd to advise them of the interlocutory order.

101. Given awareness by Mars of the interlocutory order and the inhibition registered against the Land Registry Folio relating to Oaktate, it is inconceivable that Home For Life Ltd would remain unaware of the Bureau’s interest in this matter.

102. Barry O’Brien and Majella O’Brien have not progressed their application under the “Mortgage to Rent” scheme in any way since 2022. They have put nothing before me which demonstrates that they are currently eligible to participate in this scheme. They have provided insufficient evidence to demonstrate that a renewed application under this scheme would have any realistic prospect of success if I were to put a stay on the receivership to allow them to pursue it.

103. They have not provided any evidence relating to other factors which have a bearing on non-payment of their mortgage and might support a decision that it would be unjust not to vary the interlocutory order to permit this proposal.

104. Barry O’Brien and Majella O’Brien advance an alternative submission that as it is likely that there will be no surplus proceeds of sale for the receiver, Mars should be facilitated in selling Oaktate, as happened with another of their properties.

105. In 2016 this Court varied the interlocutory order to allow Bank of Ireland Mortgage Bank to sell this property which was also in negative equity.

106. They say that the powers of the receiver should be stayed to allow Mars to sell Oaktate. The effect of this would be that they would continue to live with their family in Oaktate until either they voluntarily give up possession, or Mars takes possession on foot of an execution order.

107. Some of the judgments relating to the powers conferred by the 1996 Act on this Court to appoint receivers and give directions refer to “equitable principles.”

Equitable principles do not permit grant of an indefinite stay of the sort which is sought here.

108. I consider it most unlikely that Barry O’Brien and Majella O’Brien intend to give up possession of Oaktate to Mars so that it can be sold to repay their mortgage liability. It is much more probable that any attempt by Mars to rely on its security will be fully contested in protracted legal proceedings in the Circuit Court, and then on appeal to this Court.

109. An stay on enforcement of the interlocutory order with a view to leaving it to Mars to enforce its security over Oaktate would allow Barry O’Brien and Majella O’Brien to remain in occupation indefinitely. There is no prospect that any application under s.3(3) of the 1996 Act to vary or set aside the interlocutory order to facilitate a sale by Mars will be made in the foreseeable future.

110. In my view the statutory requirement to show that an interlocutory order causes injustice also applies where respondents seek to prevent the Bureau from taking control of property representing proceeds of crime by the receivership process. The effect of allowing indefinite stay would be that a respondent wishing to avoid enforcement could side-step this statutory requirement.

111. I appreciate that refusal of a stay on this receivership will result in loss for them and their family of their home. In my view this factor, while weighty, is not of itself sufficient to justify a result which would officially sanction continued enjoyment by them of benefit from proceeds of crime.

112. These applications stand adjourned to the June Proceeds of Crime list. Counsel may made submissions on that date on how this receivership should progress.