National Asset Loan Management Ltd v Henry A. Crosbie
| Jurisdiction | Ireland |
| Judge | Mr. Justice Keane |
| Judgment Date | 18 June 2014 |
| Neutral Citation | [2014] IEHC 342 |
| Judgment citation (vLex) | [2014] 6 JIC 1803 |
| Court | High Court |
| Date | 18 June 2014 |
[2014] IEHC 342
THE HIGH COURT
BETWEEN
AND
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S4
FIRST NATIONAL COMMERCIAL BANK PLC v ANGLIN 1996 1 IR 75 1996/11/3337 1996 IESC 1
BANQUE DE PARIS & DES PAYS-BAS (SUISSE) SA v DE NARAY & WALTERS 1984 1 LLOYDS 21
NATIONAL WESTMINSTER BANK PLC v DANIEL & ORS 1994 1 AER 156 1993 1 WLR 1453
AER RIANTA CPT v RYANAIR LTD 2001 4 IR 607 2002 1 ILRM 381 2001/1/68
SHEPPARDS & CO v WILKINSON & JARVIS 1889 6 TLR 13
PRENDERGAST v BIDDLE (ORSE MORE O'FERRALL) UNREP SUPREME 31.7.1957
CRAWFORD v GILLMOR 1891 30 LRI 238
HARRISRANGE LTD v DUNCAN 2003 4 IR 1 2002/12/2982
NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S69
MCGRATH v O'DRISCOLL & ORS 2007 1 ILRM 203 2006/35/7529 2006 IEHC 195
DANSKE BANK AS T/A NATIONAL IRISH BANK v DURKAN NEW HOMES & ORS UNREP SUPREME 22.4.2010 2010/10/2392 2010 IESC 22
ICDL & ORS v EUROPEAN COMPUTER DRIVING LICENCE FOUNDATION LTD 2012 3 IR 327 2012/18/5066 2012 IESC 55
INVESTORS COMPENSATION SCHEME LTD v WEST BROMWICH BUILDING SOCIETY 1998 1 AER 98 1998 1 WLR 896 1998 1 BCLC 531 1997 CLC 1243 1997 PNLR 541 1997 147 NLJ 989
ANALOG DEVICES BV & ORS v ZURICH INSURANCE CO & AMERICAN GUARANTEE & LIABILITY INSURANCE CO 2005 1 IR 274 2005 2 ILRM 131 2005/2/242 2005 IESC 12
REARDON SMITH LINE LTD v HANSEN-TANGEN 1976 3 AER 570 1976 1 WLR 989 1976 2 LLOYDS 621 1976 120 SJ 719
SWEENEY v DUGGAN 1997 2 IR 531 1997 2 ILRM 211 1997/6/2236
MERIDIAN COMMUNICATION LTD & CELLULAR THREE LTD v EIRCELL LTD 2002 1 IR 17 2003/36/8461
Summary Judgement – Costs – Company – Assets Manager – Loan Facilities – Banks – Defence – Practice and Procedures – Property - Demands
Facts: In the case at hand, the plaintiff sought summary judgement against the defendants in the sum of €77,095,090.59, together with interest and costs. The plaintiff was a company formed by the National Asset Management Agency ("NAMA"), in accordance with the powers conferred on NAMA under the National Asset Management Agency Act 2009 ("the NAMA Act"). The defendant, a company director, acknowledged that the sum in question remained outstanding in respect of a number of personal loan facilities he received from, and personal guarantees he executed in favour of, Allied Irish Banks plc ("the bank"). The bank was a "participating institution", as s. 4 of the NAMA Act defined that term, and the debts due by the defendant to the bank pursuant to those loan agreements and guarantees had been transferred to the plaintiff, as a subsidiary of NAMA. By letter dated the 10th March 2014, the plaintiff demanded payment by the defendant of the various sums due. The defendant averred that he had a full defence to the plaintiff's claim. His defence was that he entered into a solemn and binding written agreement with the plaintiff in August 2012, under which it was agreed that - in consideration of the defendant providing security interests in certain assets to the plaintiff, and of his divesting himself of certain other assets - the plaintiff would no longer have recourse to the defendant's remaining assets, including the defendant's family home, his son's home and a business carried on by the defendant's wife.
Held by Justice Keane that the test to be applied on an application for summary judgment was whether the defendant had satisfied the court that he had a fair or reasonable probability of having a real or bona fide defence to the plaintiff's claim. The defendant submitted that he had a full defence to the plaintiff's claim which was that there was an agreement in force between the parties, in the terms set out in the McCabe letter, that precluded the plaintiff from seeking judgment against the defendant in the sum at issue. In addressing that issue with reference to the principles governing the construction of express and implied contractual terms, Justice Keane proposed to consider also whether there was any real risk of injustice being done by determining those questions within the somewhat limited framework of a motion for summary judgment. In light of ICDL v European Computer Driving Licence Foundation Ltd [2012] 3 I.R. 327 and I.C.S. Ltd v. West Bromwich B.S. [1998] 1 W.L.R. 896 amongst others, Justice Keane reasoned that there were no words in the McCabe letter to the effect that it recorded either a full and final settlement or compromise of all claims between the parties; or a comprehensive agreement between the parties; or any equivalent form of agreement. He stated that even if words could be identified in the McCabe letter - and they had not been- that on one possible interpretation might express or imply that the agreement was intended to represent a comprehensive settlement, those words would have to be construed contra proferentem in circumstances where it was common case that the letter was prepared by the defendant's legal advisors. Furthermore, Justice Keane determined that there were also no words within the letter to the effect that the plaintiff would refrain, or forbear, from seeking a money judgment against the defendant in respect of the monies lawfully due and owing by the defendant to the plaintiff under the facility letters or the guarantees, or both, or that the plaintiff would refrain, or forbear, from taking enforcement action against the plaintiff generally. Effectively, it was reasoned that there were no word in the McCabe letter to the effect that the plaintiff was to have no personal recourse to the plaintiff, beyond that represented by the security thereby obtained by the plaintiff from the defendant. Consequently, having considered the entirety of the situation and the facts of the particular, while being conscious of the obligation on the court only to exercise the power to grant summary judgment with discernible caution, Justice Keane concluded, that the issue of construction on which the sole ground of defence advanced on behalf of the defendant depended was relatively straightforward and did not require fuller argument. Accordingly, he determined that he did not believe that there was any real risk of injustice being done by determining that question within the framework of a motion for summary judgment. He stated that the defendant had failed to satisfy him that had a fair or reasonable probability of having a real or bona fide defence. Bearing in mind the constitutional basis of the right of access to justice of both plaintiff and defendant, he therefore concluded that the plaintiff was entitled to liberty to enter judgment in the terms of the endorsement to the Summary Summons.
In these proceedings, the plaintiff seeks summary judgment against the defendant in the sum of €77,095,090.59, together with interest and costs.
The plaintiff is a company formed by the National Asset Management Agency ("NAMA"), in accordance with the powers conferred on NAMA under the National Asset Management Agency Act 2009 ("the NAMA Act").
The defendant is a company director.
The defendant acknowledges that the sum at issue remains outstanding in respect of a number of personal loan facilities he received from, and personal guarantees he executed in favour of, Allied Irish Banks plc ("the bank"). The bank is a "participating institution", as s. 4 of the NAMA Act defines that term, and the debts due by the defendant to the bank pursuant to those loan agreements and guarantees have been transferred to the plaintiff, as a subsidiary of NAMA.
By letter dated the 10 th March 2014, the plaintiff demanded payment by the defendant of the various sums due.
The defendant avers that he has a full defence to the plaintiff s claim. His defence is that he entered into a solemn and binding written agreement with the plaintiff in August 2012, under which it was agreed that - in consideration of the defendant providing security interests in certain assets to the plaintiff, and of his divesting himself of certain other assets - the plaintiff would no longer have recourse to the defendant's remaining assets, including the defendant's family home, his son's home and a business carried on by the defendant's wife.
There is no issue between the parties on the test to be applied.
In First National Commercial Bank v Anglin [1996] 1 I.R. 75 at 79, the Supreme Court ( per Murphy J., Hamilton C.J. and Denham J concurring) endorsed the following test laid down in Banque de Paris v de Naray [1984] 1 Lloyd's Law Rep 21, which had been referred to in the judgment of the President of the High Court and reaffirmed in National Westminster Bank Plc v Daniel [1993] 1 W.L.R. 1453:
"The mere assertion in an affidavit of a given situation which was to be the basis of a defence did not of itself provide leave to defend; the Court had to look at the whole situation to see whether the defendant had satisfied the Court that there was a fair or reasonable probability of the defendants having a real or bona fide defence."
Murphy J. continued:
"In the National Westminster Bank case, Glidewell L.J. identified two questions to be posed in determining whether leave to defend should be given. He expressed the matter as follows:-"
'I think it right to ask, using the words of Ackner L.J. in the Banque de Paris case, at p. 23, 'Is there a fair or reasonable probability of the defendants having a real or bona fide defence?' The test posed by Lloyd L.J. in the Standard Chartered Bank case, Court of Appeal (Civil Division), Transcript No. 699 of 1990 'Is what the defendant says credible?', amounts to much the same thing as I see it. If it is not credible, then there is no fair or reasonable probability of the defendant having a defence.'"
Murphy J. prefaced the...
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National Asset Loan Management Ltd v Crosbie
...?77,095,090.59. The decision of the trial judge to grant judgment on the summary application and his reasons are in a written judgment [2014] IEHC 342 delivered on the 27th June, 2014 (but incorrectly recorded as 18th June 2014). 2 There was a further application heard by the trial judge se......