Wednesday 26 October 2016

Harry Crosbie: There's been a gross injustice done over €77m debt

Tim Healy

Published 14/12/2015 | 17:38

Harry Crosbie
Harry Crosbie

BUSINESSMAN Harry Crosbie says a gross injustice has been done to him because NAMA failed to honour an agreement that certain personal assets, including the family home, would not be part of the enforcement of a judgment against him for a €77m commercial debt.

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He is appealing a High Court decision last year granting the judgment to NAMA company, National Asset Loan Management Lt (NALM). 

He says while he is liable for the debt, NALM was not entitled to seek an order enforcing the judgment against his home in Hanover Quay, Dublin, his son Simon's home in Blackrock, Dublin, and against some of his wife Rita's assets.

Last year, Mr Justice David Keane ruled NALM was entitled to summary judgment orders for €77m arising from debts and guarantees of liabilities of two of his companies, Shoal Trading Ltd and Ossory Park Management Ltd.

The judge found Mr Crosbie failed to show any reasonable prospect of a genuine defence to the NAMA claim such as would entitle him to a full court hearing on the matter.

The judge also later ruled NALM was entitled to to enforce the judgment against certain of his assets.

The decision was appealed to a three-judge Court of Appeal which began hearing the case Monday (Dec 14).  It resumes next week.

Michael McDowell SC, opening Mr Crosbie's appeal, said the proceedings against his client were "unjust from beginning to end" including that he was not  allowed to make his case at a full hearing.

The High Court judge (Keane) applied a wholly inappropriate test to a letter which was used to argue the case that Mr Crosbie enjoyed immunity for certain personal assets from enforcement of the debt, he said.

The August 2012 letter from Mr Crosbie's solicitors to NALM precluded enforcement over personal assets and from making him bankrupt.

It was "a gross injustice to allow NALM ignore that agreement" which Mr Crobie benefits from very substantially, counsel said.

NALM had argued there was no such agreement and if there was, it was "a temporary little arrangement" which could be set side by NALM, counsel said.

It had also argued that that what Mr Crosbie had agreed to was some sort of collateral remedy which, in event of judgment being given, that it would not be used against him but, the NALM side argued, that was a separate matter.

However, Mr McDowell said, as soon as it got judgment, NALM sought to register a judgment mortgage against the assets.   A stay was put on the registering of the judgment pending the outcome of the appeal.

"The reality of the High Court order clearly had the effect of giving NALM direct access to the assets which we say they solemnly agreed would never be subject to any redress or enforcement", Mr McDowell said.

Counsel said as part of the agreement between Mr Crobie and NALM, the businessman's 50 per cent interest in the O2/Point arena was taken over and later sold for €35m.

The High Court had also refused to allow Mr Crosbie bring separate proceedings over that disputed agreement because he had not first got permission of the court as required under the NAMA Act, the appeal court heard.

Paul Sreenan SC, for NALM, said at no part in the agreement and memoranda of understanding between NALM and Mr Crosbie was it said there would be no enforcement of the debt.

Mr Crosbie was an experienced businessman, well familiar with terms such as "debt forgiveness" and "full and final settlement".   These were terms which were specifically not accepted by NALM in its negotiations with him, counsel said.

In relation to the 50 per cent shareholding in O2/the Point, that interest had previously been taken over by NALM and the proceeds of the sale used to pay down part of Mr Crosbie's personal indebtedness and was something he received the full value of.

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