National Asset Loan Management Ltd v Henry A. Crosbie and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Keane
Judgment Date31 July 2014
Neutral Citation[2014] IEHC 414
Date31 July 2014
Docket Number[No. 774S/2014]

[2014] IEHC 414

THE HIGH COURT

[No. 774S/2014]
[No. 5261P/2014]
National Asset Loan Management Ltd v Crosbie
No Redaction Needed
COMMERCIAL

BETWEEN

NATIONAL ASSET LOAN MANAGEMENT LIMITED
PLAINTIFF

AND

HENRY A. CROSBIE
DEFENDANT
HENRY A. CROSBIE
PLAINTIFF

AND

NATIONAL ASSET MANAGEMENT AGENGY AND NATIONAL ASSET LOAN MANAGEMENT LIMITED

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S69

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S12

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S84

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 PART 10 CHAP 2

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S181

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 PART 10 CHAP 3

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S183

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S192

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S2

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012 PARA 26-74

OKUNADE v MIN FOR JUSTICE & ORS 2012 3 IR 152 2013 1 ILRM 1 2012/37/10891 2012 IESC 49

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

EMERALD MEATS v MIN FOR AGRICULTURE 1993 2 IR 443 1992/7/1990

IRISH PRESS PLC v INGERSOLL IRISH PUBLICATIONS LTD 1995 1 ILRM 117 1995/3/905

REDMOND v IRELAND 1992 2 IR 362 1992 ILRM 291

PRENDERGAST v BIDDLE UNREP SUPREME 31.7.1957

ABBEY INTL FINANCE LTD v POINT IRELAND HELICOPTERS LTD & ELITALIANA SPA 2012 2 IR 694 2012/1/130 2012 IEHC 374

CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88 1984 ILRM 45

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S192(1)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S181(1)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182(1)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182(2)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182(3)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S184(4)(A)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S184(4)(B)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182(6)

DALY v NATIONAL ASSET MANAGEMENT AGENCY (NAMA) UNREP PEART 12.9.2011 (EX TEMPORE)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S189

Personal Loans – Stay on enforcement – Striking out order – Plaintiff seeking a stay on enforcement or execution of the judgment against him – Whether plenary proceedings should be struck out for being an abuse of process

Facts: The plaintiff, Mr Crosbie, was found by the Commercial Court in June 2014 (the first proceedings) to have failed to satisfy Keane J that he had a fair or reasonable probability of having a real or bona fide defence to the claim of the defendant, National Asset Loan Management Ltd (NALM), to judgment against him in respect of a number of personal loans that he had obtained and a number of guarantees that he had entered into. In asserting a defence to the claim by NALM, Mr Crosbie had contended for the existence of a binding written agreement between the parties whereby, in consideration of Mr Crosbie providing security interests in certain assets, and of his divesting himself of certain other assets, NALM would no longer have recourse to Mr Crosbie”s remaining assets. Keane J concluded that the agreement contended for is incapable of conveying to any reasonable person that it is an agreement on the part of NALM not to seek a money judgment against Mr Crosbie. In the second proceedings, admitted into the Commercial Court in July 2014, Mr Crosbie sought four separate declarations, an injunction preventing National Asset Management Agency (NAMA) and NALM from enforcing, by litigation or bankruptcy procedures, Mr Crosbie”s indebtedness, and damages for misfeasance in public office against NAMA and NALM. The first application was brought to the High Court on behalf of Mr Crosbie in the first proceedings for a stay on enforcement or execution in certain specified ways of the judgment against him, pending the determination by the High Court of the second proceedings. He highlighted the financial loss he will incur to the extent that NALM succeeds in enforcing that judgment against those of his assets to which, he contended, it has previously agreed to relinquish any claim. The second application was brought to the High Court on behalf of NAMA and NALM for an order striking out the second proceedings, or part of them, for failure to comply with s. 182 of the National Asset Management Agency Act 2009. They submitted that Mr Crosbie”s plenary proceedings constitute an abuse of process as a result of his failure to address the provisions of s. 182 in instituting them. They contended that the second proceedings related to Mr. Crosbie”s indebtedness arising from personal loan facilities and guarantees and that those facilities, and every other right arising directly or indirectly in connection with them, are ‘bank assets’ within the meaning of the 2009 Act.

Held by Keane J that the High Court has discretion to grant a stay on a judgment, referring to Delany and McGrath, Civil Procedure in the Superior Courts 3rd ed. (Dublin, 2012). He applied the principles in Okunade v Minister for Justice [2012] 3 IR 152, holding that were the Court to accede to Mr Crosbie”s application for a stay, the countervailing risk of injustice to NALM and NAMA is that, in the event that Mr Crosbie”s claims are found to be without merit, the relevant assets might by then have been dissipated or applied in satisfaction of his other debts, leaving NAMA and NALM with an irrecoverable loss to the value of those vanished assets. Keane J held that he was satisfied that the provisions of s. 182 apply to the second proceedings in that they have been commenced by Mr Crosbie as a debtor and guarantor in relation to the loans and guarantees that are the subject of the summary judgment granted against him in the first proceedings, each of which falls within the definition of ‘bank asset.’

Keane J held that he should refuse the application for a stay in the first proceedings, and made an order striking out Mr Crosbie”s claim for the reliefs sought in the originating plenary summons in the second proceedings. Keane J held that as the interlocutory application in the second proceedings is now concluded, he will hear the parties in relation to the appropriate order as to costs in respect of that application, and as to the levels of those costs for the purpose of measuring them, pursuant to the provisions of s. 189 of the 2009 Act.

Application refused in part.

Mr. Justice Keane
1

On the 27th June 2014, the Commercial Court granted summary judgment in proceedings entitled "National Asset Loan Management Ltd v. Henry A.Crosbie, Record No. 774S of 2014". The relevant application had been heard on the 14th May 2014. For clarity, I will refer to those proceedings in this judgment as "the first proceedings." On the 12th June 2014, the defendant in the first set of proceedings, Mr. Crosbie, commenced separate plenary proceedings entitled "Henry A. Crosbie v. National Asset Management Agency and National Asset Loan Management Ltd, Record No. 5261P of 2014." For the remainder of this judgment, I will refer to those proceedings as "the second proceedings." The second proceedings were admitted into the Commercial Court on the 7th July 2014.

2

There are two applications now before the court. The first is an application on behalf of Mr. Crosbie in the first proceedings for a stay on enforcement or execution in certain specified ways of the judgment against him. The stay that is sought is not one pending appeal, nor is it one for a time certain. It is a stay pending the determination by the High Court of the second proceedings.

3

The second application is brought on behalf of NAMA and NALM and is for an order striking out the second proceedings, or part of them, for failure to comply with s. 182 of the National Asset Management Agency Act 2009 ("the NAMA Act").

4

I heard both applications together on the 11th July 2014.

5

In my judgment in the first proceedings, I found that Mr. Crosbie had failed to satisfy me that he had a fair or reasonable probability of having a real orbona fide defence to the claim of National Asset Loan Management Ltd ("NALM") to judgment against him in the sum of €77,095,090.59 in respect of a number of personal loans that he had obtained and a number of guarantees that he had entered into.

6

In asserting a defence to the claim by NALM, Mr. Crosbie had contended for the existence of a solemn and binding written agreement between the parties whereby, in consideration of Mr. Crosbie providing security interests in certain assets to the plaintiff, and of his divesting himself of certain other assets, NALM would no longer have recourse to Mr. Crosbie's remaining assets.

7

In my judgment, I concluded that the agreement contended for, the terms of which are contained in a letter written by Mr. Crosbie's solicitor on the 24th August 2012 ("the McCabe letter"), is incapable of conveying to any reasonable person, having the background knowledge available to the parties, that it is an agreement on the part of NALM not to seek a money judgment against Mr. Crosbie.

8

In reaching that conclusion, I acknowledged that, taking the terms of the agreement evidenced by the McCabe letter at the high water mark from Mr. Crosbie's perspective (as the Court is obliged to do in considering the test for summary judgment), those terms are capable of establishing certain binding obligations owed to Mr. Crosbie by both NALM and the National Assets Management Agency ("NAMA"), in consideration of certain steps taken by Mr. Crosbie.

9

I pause here to note that, in identifying asserted propositions of fact or law that - if proved in evidence or established by argument - may be capable of establishing a fair or reasonable probability that a defendant has a real orbona fide defence, the Court is not purporting to adjudicate on whether those propositions are, in fact, correct.

10

The relevant propositions that I identified in...

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1 cases
  • National Asset Loan Management Ltd v Crosbie
    • Ireland
    • Court of Appeal (Ireland)
    • 24 June 2016
    ...the refusal of that second application and the reasons therefore were given in a written judgment delivered on the 31st July, 2014 [2014] IEHC 414. It is of relevance to the issue on appeal that there is no appeal against that part of the order of the High Court of the 31st July, 2014, whic......

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