DEVELOPER David Daly and his children are out of time to challenge NAMA's move to call in their €457m loans with AIB because they never disputed its acquisition of those loans almost a year ago, the High Court was told yesterday.
Paul Sreenan, for NAMA, said decisions by the Supreme Court in proceedings by property investor Paddy McKillen had made it clear that a legal challenge had to be brought around the time of the acquisition of loans and not -- as in the Dalys' case -- almost a year later.
Mr Daly had not only not objected to the acquisition of the loans, he had "practically embraced" it, counsel said. Therefore he could not now challenge the calling in of the loans, argued Mr Sreenan.
Over the course of a year, NAMA had acquired the assets, paid for them and dealt with them and the Dalys, he said.
Mr Daly had very quickly become aware of the NAMA approach that he should restructure, sell and bring down his debts. Either there would be agreement on his business plan to achieve that or NAMA would put a plan in place for him.
In considering Mr Daly's case, counsel argued, the court should also consider the public interest, which would not be served by allowing a challenge to an assets acquisition made almost a year ago.
The Dalys' claim that their AIB loans could not be called in on demand also "flew in the face" of written loan agreements between them and the bank.
The court should note they had not sworn in documents that they had ever raised an issue of a demand clause with AIB or had ever asked for loans that could not be demanded.
It might be the case, counsel argued, that the Dalys and AIB never thought there would have to be reliance on a contractual entitlement to demand repayment and that the economy would continue to boom -- but that did not alter the entitlement to call in the loans.
Mr Sreenan was making submissions for NAMA in the continuing hearing before Mr Justice Michael Peart of the challenge by Mr Daly, his daughter Joanne and son Paul to NAMA's decision to call in the loans and appoint receivers over properties here and in the UK.
The Dalys are seeking injunctions pending the outcome of a possible full action challenging NAMA's calling in of the AIB loans last month. The proceedings are against a NAMA company, the receivers appointed, NAMA itself, AIB and the State.
They want declarations that various credit facilities entered into by them with AIB in July 2007 and February 2008, and transferred to NAMA last year, are not repayable on demand.
They also claim that certain provisions of the NAMA Act are invalid and unconstitutional.
The case resumes on Tuesday.