Tuesday 20 March 2018

Family of businessman who took his own life over €31m debt can continue case

Philip De Vere Hunt
Philip De Vere Hunt

Tim Healy

THE family of businessman who left a suicide note telling of his desperation at being pursued over an unpaid €31m bank debt can continue to plead a case he made that he was not personally liable for the money, the High Court ruled.

Philip De Vere Hunt (64), Ardmayle House, Cashel, Co Tipperary, was found dead at his cattle mart property in Cashel on December 18, 2012, the day a case over the debt was due to be heard.

At his inquest, coroner Paul Morris said Mr De Vere Hunt’s dealings with NAMA, which had taken over the €31m debt to AIB, had “brought him to the end of his tether”.

Before he ended his life, he left a “very, very sad note” which described his “sense of desperation” on the matter, Mr Morris said.

He feared that the family farm could be taken away from them, Mr Morris said.

The coroner also said it was "time that someone shouted stop” regarding the banks’ approach to debtors.

Subsequent to his death, proceedings seeking judgment for the €31m against him were adjourned pending progress on administration of his estate.

NAMA company, National Asset Loan Management Ltd (NALM), later alleged that prior to his death, Mr De Vere Hunt had transferred debt-free property to his son Robert. 

NALM then applied to have that transfer declared void and to reconstitute the proceedings against the estate.

A firm of solicitors for the family took over administration of the estate and they sought to file a new defence and counter-claim to NALM's judgment proceedings.

The estate sought an order from Mr Justice Brian Cregan that the 2009 NAMA Act does not require leave of the court to delivery that defence/counter-claim.   If such permission was required, an order to that effect should be granted by the court.

Mr Justice Cregan granted leave to the estate to make, in its counter-claim, a plea of there having been a mutual mistake between the parties as to whether Mr De Vere Hunt enjoyed limited liability for repaying the loan when the loan agreement was entered into.

The judge refused to grant leave to allow them plead breach of contract against NALM and said such a claim should be made directly against AIB if the defendant so wished.

He also refused leave to pursue a misrepresentation claim against NAMA and said that should also be made against AIB, if so wished.

He said the defendant did not actually require leave of the court to pursue NAMA for misrepresentation or delay claims or to challenge the constitutionality of parts of the NAMA Act.

Mr Justice Cregan said Mr De Vere Hunt and Pat Moloughney, Newpark, Dualla, Cashel, Tipperary, were party to a loan agreement with AIB in June 2010 in which they were advanced around €30m.

The two men's company, BPD Capital,  was behind a 77,000 square foot shopping centre at Old Cork Road,

Cashel.   The failed to repay the loan on agreed terms, AIB claimed.

The men refused to pledge any of their unencumbered assets to support the debt because, they argued, the liability was restricted to secured assets supporting the loans.  They also claimed their partnership agreement would not have allowed them pledge personal assets.

The bank said the loan facilities were subject to full recourse (to their assets).

The men sought to defend the claim for judgment and counter-claimed.

Mr Justice Cregan said by June 2012, events had moved on and Mr Moloughney was declared bankrupt in the UK.

The hearing of the men's application to challenge the judgment application was due to be heard on the same day Mr De Vere Hunt's body was found.

When the matter next came before the court in May 2013, NALM applied for and was given judgment for €31m against Mr Mcloughney, given he was now a bankrupt.

Last January, an application to re-enter the case against the De Vere Hunt estate was made after the transfer of assets to the son was discovered.

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