Archive for December 22nd, 2012

The Northern Ireland environment minister, the SDLP’s Alex Atwood has capped a manic year of approving major planning applications in Northern Ireland where the local economy and jobs have been to the fore of the Minister’s decision-making, and yesterday, we learned that (London)Derry is to get a major new Asda store after the Minister examined a number of schemes for retail development, approving one and rejecting three.

The developer, Genova North West, has received the green-light for the GBP 30m (€37m) development of the Asda store at the Crescent Link Retail Park in the Waterside east of the city. Locals including the Chamber of Commerce seem delighted that there will be a major Asda outlet in the city, which will both attract shoppers and deter city residents from travelling to Strabane for their shopping. The Asda store will replace an existing Homebase store at the Crescent Link site.

There are at least five other proposals for major development in (London)Derry and yesterday, three received the thumbs-down from the environment minister. D&A Properties’ plans for a 15,000 sq ft food store in Drumahoe was refused because of its potential impact on other stores and transport facilities. A rival plan to bring Sainsbury’s to the Crescent Link by developer GSB Guernsey Trading Limited were refused outright yesterday. And finally, a plan to develop a Tesco store in the west of the city was also rejected.

NAMA developer, the McGinnis group and their company, Caw Properties Limited, wait to hear if their plans to develop a 100-bed hotel and retail facility in the east of the city are approved, as does Niche Drinks which is planning to develop its premises on Rossdowney Road, also in the east of the city.

Genova is controlled by the Newry-based Murdock family, best known for a range of shopping centres in Northern Ireland and the UK, as well as nursing homes. In September 2011, the BBC reported that some of its loans had been transferred to NAMA, though it also had loans from non-NAMA banks, including Bank of Scotland (Ireland). It is not known if NAMA will have any involvement in the development of the Asda store in (London)Derry but in October 2012, the Northern Ireland Minister for Finance and Personnel, Sammy Wilson said that NAMA had approved over €125m of advances to Northern Irish developers, though some of this will have been for projects outside Northern Ireland.

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“I am afraid that I cannot regard Mr  O’Donnell  as a frank, or even a wholly truthful, witness.” Judge Newey in British High Court, 21st December 2012

Yesterday, in London’s High Court, Mr Justice Newey delivered an early Christmas present to Bank of Ireland when he denied the petition by the O’Donnells – husband Brian, and wife Mary Patricia – to be declared bankrupt in the UK. The written judgment is available online here.

The case rested on the so-called “Centre of Main Interest”  or COMI, and the Judge ultimately decided that on 27th March 2012, when the O’Donnells petitioned for bankruptcy in the UK, that the COMI was NOT “sufficiently ascertainable by third parties”. The Judge concluded “it seems to me that an objective observer would have taken the  O’Donnells ‘ COMI to be in Ireland as at 27 March of this year. I find, accordingly, that the  O’Donnells ‘ COMI was in Ireland rather than England when the petitions with which I am concerned were presented. It follows that the petitions must be dismissed”

The O’Donnells contended that a range of business and other interests allowed them to claim England as their COMI. The Judge didn’t agree and was quite scathing of their evidence, particularly that from Brian O’Donnell. Dismissing some oral evidence as unconvincing or unlikely, the Judge was more sympathetic to the wife, but even then, the Judge went on to say “parts of her evidence were, however, less convincing. At points, I felt that she was reflecting the “party” line”

The judgment is interesting in that it confirms substantial commercial and other interests in the UK on the part of the O’Donnells for a lengthy period, yet makes clear the need for debtors to communicate their centre of interest to creditors, and also weighs the evidence to compare different jurisdictions to see which best fits with the COMI definition.  Other banks and perhaps even NAMA will scrutinise the judgment, though in the past, NAMA has said it is neutral on the jurisdiction in which a debtor declares themselves bankrupt – not so IBRC which had Sean Quinn’s Belfast bankruptcy overturned.

It is now likely that Bank of Ireland will seek to bankrupt the pair in Ireland where the Personal Insolvency Bill has just now gone to President Higgins for signing into law, but as things stand, the O’Donnells face a 5-12 year bankruptcy term if Bank of Ireland immediately moves against them.

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