Thursday 14 December 2017

Unparalleled insight into how NAMA operates

Treasury Holdings' mammoth case against NAMA runs into a sixth day today, but when the dust settles the decision will come down to matters of procedure.

Treasury's task is to convince Justice Finlay Geoghegan that there are grounds to argue that NAMA acted unfairly towards the borrower when it sent in the receivers.

Treasury Holdings went to court seeking permission to take a legal case known as a judicial review -- where it can challenge the grounds for the receivership appointments.

If Treasury gets the go-ahead the judicial review hearing will focus on whether NAMA acted fairly, and took all of the right steps when the receivership decision was made.

The question of "fairness" or unfairness is central to the case only because NAMA is a state agency.

Other banks, including KBC Bank, which has also sent in receivers to Treasury properties, are under no obligation to act "fairly" towards debtors.

If loans owed to an ordinary bank go unpaid the lender can be as selfish as it likes, at least within the terms of their loan contract.

For NAMA it's different. As an arm of the State, it has extra duties when it goes about its business.

We only know this because of previous legal challenges cases taken against NAMA by developers Paddy McKillen and David Daly.

Both cases showed that the courts expect NAMA to act less like a bank and more like other parts of the State when it deals with companies and individuals.

In practice that means keeping borrowers informed over matters affecting their loans, and giving them an opportunity to make a case before any action the debtors thinks could be damaging.

Treasury's lawyer Michael Cush was involved against NAMA in both those cases.

Treasury owners Johnny Ronan and Richard Barrett are hoping he can make it three in a row.

The Treasury case laid special emphasis on their view that NAMA took a decision to send in the receivers well in advance of consultations with the borrower, and without considering offers from third parties to buy the Treasury loans.

They say that doesn't pass the fairness test.

In response, NAMA's Paul Sreenan says the agency followed lengthy process before the receivers were appointed. He says it acted fairly in trying circumstances.

He also argues that Treasury is effectively insolvent -- this could also have a significant bearing because the McKillen and Daly cases both dealt with "performing loans", ie the debtors were meeting all of their obligations to NAMA.

The receivers were only sent in after NAMA demanded repayment of debts and Treasury was unable to meet the deadline, he said.

The NAMA view is that Treasury was not holding up its side of the contract, so the fairness hurdle should be lowered.

Treasury's final argument is that even insolvency should not deprive a debtor of constitutional rights.

Six days of evidence have provided unparalleled insight into the relations between property giants NAMA and Treasury but the decision will be a little bit less exciting.

A ruling will, however, add just a little more to our understanding of just what the rules are for the country's biggest property company.

Donal O'Donovan

Irish Independent

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