A High Court judge has found that an elderly widow was defrauded out of her family home by one of her daughters.
Marie Gibson sued parties, including her daughter Pauline Gibson, a solicitor who allegedly advised the parties on a loan agreement for the property, and a fund-appointed receiver over what Mr Justice Brian Cregan found was the fraudulent transfer of Marie’s home at Castletymon Green, Coolock, Dublin 5, in 2003.
In his judgment on Wednesday, Mr Justice Cregan found that solicitor Kevin O’Gorman had been negligent in the performance of his duties towards Marie Gibson in 2003 and throughout the transaction.
The judge made the finding as he set aside a transfer made between Marie and her late husband John Gibson and their daughter Pauline Gibson in 2003.
He held that no valid transfer of the house had occurred between the Gibsons and Pauline.
Even if there had been one, the judge said he would have no hesitation in setting it aside on the grounds of fraud and undue influence committed by Pauline Gibson.
The judge described the case as “a lamentable tale”.
The judge said that shortly after the death of her husband in 2017, Marie Gibson, who is an elderly widow in her 80s, discovered that in 2003 her daughter Pauline defrauded her parents out of their family home and purportedly arranged for the transfer of the property to herself.
While the house was worth €250,000 in 2003, Marie Gibson and her husband did not get a cent from the purported transfer of their home, the judge said.
He said their daughter borrowed €190,000 from First Active in 2003 by way of mortgage on the property.
If this fraud was not enough, said the judge, Mr O’Gorman acted as solicitor for both parties to the transaction.
“Mr O’Gorman conducted the transaction in a grossly negligent fashion and failed to advise Marie Gibson and her late husband either properly or at all in relation to the transaction,” the judge said, adding that Mr O’Gorman was not accused of fraud.
Marie and her husband “were never made aware that they were purportedly transferring their home in its entirety to their daughter for no consideration”, he said.
The judge added that while the purported transfer in 2003 was never stamped or registered by Mr O’Gorman, he sought to re-execute the transfer in 2009/10.
The judge said that Pauline Gibson forged their signatures on these documents, resulting in the property being registered in Pauline’s name.
Shortly after the death of her husband, Marie Gibson learned that her daughter had defaulted on the 2003 bank loan, which had been acquired from EBS by Promontoria Oyster DAC.
It appointed a receiver over the property, which the Gibsons acquired from Dublin City Council in 1977.
Only asset
The judge said Marie consequently went to her current solicitors, Gaffney Halligan, who instructed Hugh O’Flaherty BL in the proceedings.
“It was just as well that she did,” the judge said, as her legal team has pursued this case with great tenacity, thoroughness and professionalism since that time.
Mr Justice Cregan was ruling in proceedings brought by Marie Gibson, against Mr O’Gorman, practising under the title Kevin O’Gorman & Company Solicitors, her daughter Pauline Gibson, and receiver Paul McCleary.
She sued Mr O’Gorman for professional negligence.
Mr O’Gorman claimed he advised the plaintiff and her husband in 2003 “to consider carefully what they were doing” and had believed that they had got independent financial advice from another party.
He said he spelled out what would happen if Pauline did not repay the loan and said that they were happy to proceed.
Pauline Gibson, who was sued by her mother for fraud, deceit and unjust enrichment did not take part in the proceedings.
The receiver took a neutral role in the action and was before the court for Marie Gibson’s application seeking orders rescinding the sale of the property and preventing him from taking possession of a property Mrs Gibson has resided at since the late 1960s.
The judge said the house was Mrs Gibson’s only asset and she intended to leave it in equal parts to her five children in her will.
The judge noted that Mrs Gibson has made a new will disinheriting Pauline.
The fraud came to light shortly after Mr Gibson’s death when his affairs were being managed by family members, the judge said, adding attempts were made by the family to contact Pauline, without success.
Marie told the court that since her husband’s funeral she has not spoken to or met with Pauline. The family does not have her number or know where she currently lives.
Mrs Gibson claimed that in 2003 Pauline asked for a loan to help carry out renovations on Pauline’s then-family home on Fortfield Road in Terenure.
She was not aware of the amount of money her daughter, who she trusted, was proposing to borrow or what was meant when her daughter wanted to borrow money against her parents’ house.
The judge said Mrs Gibson and her husband required proper legal advice regarding the transaction.
While they signed forms in a pub at her daughter’s request, the judge said the property fully transferred to their daughter without Mrs Gibson’s knowledge.
The judge did not accept Mr O’Gorman’s evidence and did not find him to be a “credible or reliable witness”.
Where there was a conflict of evidence between Mrs Gibson and Mr O’Gorman, the judge was of the view that she was a frank, straightforward forward and honest witness. The court accepted her evidence on relevant matters.
The judge said several issues in the case are outstanding, including the quantification of damages the plaintiff is entitled to. He adjourned the matter to a date in January.