Businessman Harry Crosbie objects to conditions including maximum €5,000 monthly living expenses being sought by Nama for not enforcing a €77m judgment against his home and other assets pending further legal proceedings, the Commercial Court has heard.
Nama sought such conditions because it believes Mr Crosbie is seeking to “walk away from his debts and leave them in the lap of the taxpayer”, Paul Sreenan SC, for the agency, said.
Mr Crosbie has failed to give an undertaking not to deal with his assets and Nama believed he had not fully disclosed all those, including valuable antiques, counsel added. As a public body seeking to recover debts for the taxpayer, Nama believed it must be entitled to register its judgment against various assets, including Mr Crosbie’s home at Hanover Quay, Dublin.
Michael McDowell SC, for Mr Crosbie, said an undertaking by Nama that it would not move to bankrupt Mr Crosbie without giving him five days notice was “valueless”, but his client was happy to undertake to Nama, as it had sought, not to petition for his own bankruptcy either here or abroad, counsel said. Mr Crosbie wanted to avoid bankruptcy and he contended Nama was not entitled to petition for that.
Mr Crosbie was very concerned Nama apparently intended to move to register judgment mortgages on his family home when it was his case that an August 2012 “binding agreement” with Nama prevented it enforcing against assets including his own family home.
Nama has “skirted” round the issue of the purpose and meaning of the August 2012 agreement, counsel added. The “extraordinary novelty” of this case was that Nama had entered into an agreement and now sought to “tear it up”.
Mr Crosbie had previously addressed Nama’s claims he had not fully disclosed his assets in a statement of affairs, counsel added. Mr Crosbie was also not seeking to prevent the sale of the Grand Canal Theatre but was contending he was entitled to damages over the premises being wrongly included in a “scoop” of his assets by Nama.
In an affidavit, Mr Crosbie said execution of the €77m judgment would be a “grave injustice” and have “catastrophic and irreversible” consequences for himself and his family. This was despite a binding agreement by Nama to release its security over his home and allow him deal with it as he so decided. If Nama succeeded in enforcing, that would render his home unsaleable and prevent him borrowing any money on its security for any purpose.
Having heard final arguments from both sides, Mr Justice David Keane yesterday reserved his decision on Mr Crosbie’s application for a stay on enforcement of the €77m judgment which the judge found last month Nama was entitled to enter against Mr Crosbie.
The businessman wants the stay pending the outcome of his legal proceedings alleging Nama is precluded from enforcement under the provisions of an alleged agreement between the parties contained in solicitors letters of August 2012.
The judge also reserved his decision on Nama’s application to strike out Mr Crosbie’s proceedings against Nama, yet to be heard. Nama contends those proceedings were brought in breach of Section 182 of the Nama Act which, it argues, prevents claims for any orders against Nama other than damages, being brought without court permission.
In submissions, Mr McDowell argued Nama had benefited from sale of assets under the August 2012 agreement but still “curiously” denied any agreement. Mr Crosbie strongly denied any breach of the agreement which he argued was “permanent”.
In his action, yet to be heard, Mr Crosbie alleges he has a binding agreement with Nama under the August 2012 letters which precludes the agency enforcing his debts either by litigation or bankruptcy proceedings. He is also claiming damages.
Nama’s €77m judgment arose from personal debts of Mr Crosbie and guarantees of liabilities of Shoal Trading Ltd and Ossory Park Management Ltd.
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.
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