Friday 27 June 2014 22.41
High Court made its ruling today
NAMA is entitled to €77 million summary judgment orders against businessman Harry Crosbie, the High Court has ruled.
Mr Justice David Keane found Mr Crosbie had failed to show any reasonable prospect of a bona fide defence to the NAMA claim such as would entitle him to a full court hearing on the matter.
In those circumstances, he ruled NAMA is entitled to summary judgment but adjourned final orders for a week to let the sides consider his ruling.
NAMA moved to enforce the €77m loans after Mr Crosbie failed to disclose substantial assets to the agency when first asked to do so, the Commercial Court was told during the summary judgment application last month.
A letter sent by solicitors for NAMA in August 2012 said full and complete disclosure was a requirement of NAMA’s January 2012 Memorandum of Understanding with Mr Crosbie and his “lack of candour” in dealings with NAMA was “simply not acceptable”, especially when Mr Crosbie and related companies collectively owed NAMA more than €420m.
NAMA was terminating the memorandum, reserving all its rights and wanted Mr Crosbie to take various steps, including resigning directorships of companies and sell various properties, the letter said.
Mr Crosbie had argued NAMA was effectively trying to bankrupt him and it was not entitled to summary judgment.
He argued NAMA was bound by an agreement set out in a letter of 24 August 2012 relating to management and disposal of assets and liabilities of Mr Crosbie and companies connected with him.
NAMA obtained some €35m from the sale of assets under that agreement but and was now seeking to resile from aspects of that agreement, he said.
That alleged agreement was the basis for Mr Crosbie’s defence to summary judgment and he argued, on foot of it, he was entitled to a full plenary hearing.
Mr Crosbie also rejected claims by NAMA he misled it as to whether he had unencumbered assets.
Under the 24 August 2012 agreement, Mr Crosbie, his wife and son resigned as directors of several companies and NAMA agreed to release charges and any claims by it concerning Mr Crosbie’s home at Hanover Quay, Dublin or the home of his son Simon.
The businesses of two companies were also to be transferred to Simon Crosbie for “nominal consideration” subject to sale of sites in Dublin Port, with proceeds to be given to NAMA.
Harry Crosbie was also to sell property in Dublin Port to Dublin Port Company.
The agreement also provided, without prejudice to Rita Crosbie’s claim to full ownership of a property at Eze, France, Mr Crosbie would try to sell a 50% interest in that within 18 months.
The agreement stated NAMA would not object to the proceeds of sale being used to discharge Mrs Crosbie’s debts relating to her house in Wexford.
Mr Crosbie was to arrange for sale of three apartments in Villefranche sur Mer, France and for his 45% of the sales proceeds to go to NAMA.
NAMA was also to try and settle Mr Crosbie’s debts with KBC and ABN AMRO banks. The agreement also stated NAMA has no interest in the property or business of Cafe H.
In his judgment today, Mr Justice Keane found the letter could not be construed as establishing a reasonable prospect of bona fide defence to the claim for summary judgment.
The letter could not be read as meaning NAMA had relinquished its entitlement to call in the loans or to seek a money judgment, he said.
NAMA’s claim arises from personal debts of €55m of Mr Crosbie and his guarantees of the liabilities of Shoal Trading Ltd and Ossory Park Management Ltd (OPML). The agency took over AIB loans of Mr Crosbie and his companies in 2010.
It is not seeking judgment concerning other sums due under a separate €353m facility for development of the Point Village.
Recourse for the €353m is limited to assets provided as security, plus an additional personal recourse amount.
NAMA appointed receivers in April 2013 on foot of an unmet demand for repayment under the loans and guarantees. Earlier this year, it served a further demand on Mr Crosbie seeking payment by 17 March last of €77m.