Mary Carolan

The National Assets Management Agency (Nama) is to seek orders striking out an action by businessman Harry Crosbie alleging the agency is not entitled to enforce some €77 million loans against him or seek his bankruptcy.

Nama claims the case, initiated by Mr Crosbie after Nama brought a case seeking €77m summary judgment against him, is an abuse of process involving a “mirror image” of arguments by Mr Crosbie in his unsuccessful defence to the agency’s €77m claim and breaches provisions of the Nama Act.

Mr Crosbie contends the issues raised by him, concerning whether he entered a binding agreement with Nama in August 2012 restraining its enforcement powers, have yet to be fully determined and and he is entitled to a full hearing of them. He alleges an agreement in letters from his solicitors dated August 2012 precludes Nama enforcing his debts to the agency either by litigation or bankruptcy proceedings. He also wants declarations debts secured on the Bord Gais Energy Theatre cannot be enforced by Nama and is further suing the agency for damages for alleged misfeasance in public office. Mr Justice David Keane ruled late last month Nama was entitled to €77m summary judgment after finding Mr Crosbie had not raised an arguable defence to Nama's demand and there was nothing in the August 2012 letters preventing Nama seeking a money judgment.

Lawyers for Mr Crosbie will apply to Mr Justice Keane tomorrow, July 8th, for a stay on enforcement and execution of the €77m judgment pending the outcome of his own action.

At the Commercial Court yesterday, Mr Justice Peter Kelly granted an application by Paul Sreenan SC, for Nama, to fast-track Mr Crosbie's case in the Commercial Court. Nama intends to bring a preliminary application to strike out the case as an abuse of process, counsel said.

Michael McDowell SC, for Mr Crosbie, consented to the case being fast-tracked. When counsel asked that no directions be made concerning the hearing of Nama's strike out application until Mr Crosbie's application for a stay on execution of the €77m judgment is decided, Mr Justice Kelly said Mr Justice Keane could deal with the directions matter. Mr McDowell said, in his case, Mr Crosbie contends he has a binding agreement with Nama set out in letters from his solicitors, William Fry, in August 2012. His argument was the €77m judgment should not be enforced to the extent set out in that agreement. Those letters provided, in exchange for Mr Crosbie giving Nama security over various assets, Nama would release charges over the homes of Mr Crosbie and his son Simon and not take enforcement action against those or against businesses of Simon Crosbie or Rita Crosbie. It also provided that sale proceeds of a French property could be used to discharge debts on a house in Ireland owned by Rita Crosbie and Nama was to try and settle Mr Crosbie's debts with KBC and ABN AMRO banks.

Nama moved to enforce the €77m loans after alleging Mr Crosbie failed to disclose substantial assets to the agency when first asked to do so. The agency argued 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 said it wanted judgment so it could secure that against assets owned by Mr Crosbie not currently secured in favour of any other party. Nama believed there was equity in the Vicar Street music venue, valuable antiques and an interest in unencumbered properties in France. It also claimed Mr Crosbie voluntarily transferred some €2.9m between 2008 and 2011 and Nama would be better placed to investigate those transactions if it got judgment.

Mr Crosbie denied he misled Nama as to whether he had unencumbered assets and claimed Nama was effectively trying to bankrupt him and is bound by the August 2012 agreement under which it got some €35m from sale of assets. Nama's €77m judgment arose from personal debts of Mr Crosbie and guarantees of liabilities of Shoal Trading Ltd and Ossory Park Management Ltd (OPML).

Judgment is not being sought for other sums due under a separate €353m facility for development of the Point Village, recourse for which is limited to assets provided as security, plus an additional personal recourse amount.