Treasury Holdings & Others v National Asset Management Agency & Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 22 March 2012
• Neutral Citation: [2012] IEHC 66
• Court: High Court
• Date: 22 March 2012

Treasury Holdings & Ors v National Asset Management Agency (NAMA) & Ors

JUDICIAL REVIEW

IN THE MATTER OF SECTION 193 OF THE NATIONAL ASSET MANAGEMENT AGENCY ACT, 2009

BETWEEN

TREASURY HOLDINGS, SPENCER DOCK DEVELOPMENT COMPANY LIMITED, SDDC (No. 1) LIMITED, SDDC (No. 2) LIMITED, SDDC (No. 3) LIMITED, SDDC (No. 4) LIMITED, FAXGORE LIMITED, REAL ESTATE OPPORTUNITIES PLC., COOLRED LIMITED, TENDERBROOK LIMITED, WINTERTIDE LIMITED, TWYNHOLM LIMITED, RIGOL LIMITED, RUSHRID LIMITED, IREO IRISH REAL ESTATE OPPORTUNITIES FUND PUBLIC LIMITED COMPANY, CARRYLANE LIMITED, CALLSIDE DEVELOPMENTS LIMITED, RADTIP PROPERTIES LIMITED, SENCODE LIMITED, LORNABAY LIMITED, BALLYMUN SHOPPING CENTRE LIMITED, MONTEVETRO II LIMITED AND TREASURY HOLDINGS CHINA LIMITED

APPLICANTS

AND

THE NATIONAL ASSET MANAGEMENT AGENCY and NATIONAL ASSET LOAN MANAGEMENT LIMITED AND BY ORDER, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

KBC BANK IRELAND PLC, IRISH BANK RESOLUTION CORPORATION LIMITED LUKE CHARLTON AND DAVID HUGHES

NOTICE PARTIES

[2012] IEHC 66

[55 J.R./2012]

THE HIGH COURT

JUDICIAL REVIEW

Leave to apply

National Asset Management Agency - Decision to enforce securities and appoint receivers - Test to be applied - Substantial issue - Whether demonstration of substantial issue on one ground reduced standard for additional grounds to "arguable" - Whether intention of Oireachtas was to raise threshold in leave application under statute - Whether application for leave could be made ex parte - Public law - Whether decision by respondent a matter of public law - Scheme of act establishing respondent - Exercise of statutory powers by respondent - Fair procedures - Audi alterem partem - Whether applicants entitled to be heard prior to making of decision by respondent - Whether applicants affected by decision made - Whether representations which would have been made could have been lawfully considered by respondent - Whether breach of applicants' right to be heard remedied by subsequent actions of respondent - Duty to act in fair and reasonable manner - Whether duty to act in fair and reasonable manner different to reasonableness challenge - Whether challenge related to manner in which decision made - Whether applicants should be prejudiced by absence of relevant documentation - Relevant considerations - Whether respondent failed to have regard to relevant consideration - Whether respondent failed to have regard to potential purchaser of loans in question - Improper purpose - Whether improper purpose contended for must be set out - Whether improper purpose contended for must be supported by credible evidence - Bad faith - Whether facts alleged supported contention of bad faith - Certiorari - Discretionary remedy - Breach of undertaking - Whether genuine dispute as to terms of concluded standstill agreement - Whether applicants had shown entitlement to certiorari - Whether grant of certiorari would serve no purpose - Whether success of applicants would require respondent to alter procedure by which it reached decisions - Whether damages would be an adequate remedy - Whether applicants would be entitled to damages if successful - Whether court should require fortified undertaking as to damages - Whether injunctive relief pursued by applicants - Whether sufficient facts before court to consider undertaking as to damages - McNamara v An Bord Pleanála (No 1) [1995] 2 ILRM 125 and Dellway Investments Ltd v National Asset Management Agency [2010] IEHC 375 (Unrep, High Court, 8/11/2010) followed - In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, Dellway Investments Ltd v National Asset Management Agency [2011] IESC 13 (Unrep, SC, 12/4/2011), East Donegal Co-Operative Livestock Mart Ltd v AG [1970] IR 317 and McCormack v Garda Síochána Complaints Board [1997] 2 IR 489 applied - G v DPP [1994] 1 IR 374, Zockoll Group Ltd v Telecom Éireann [1998] IR 287, Deane v Voluntary Health Insurance Board [1992] 2 IR 319, O'Keeffe v An Bord Pleanála [1993] 1 IR 39, Listowel Urban District Council v McDonagh [1968] IR 312, Pine Valley Developments v Minister for the Environment [1987] IR 23, Broadnet Ltd v Director of Telecommunication Regulation [2003] 3 IR 281, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, R v Lancashire County Council ex p Huddleston [1986] 2 All ER 941 and Smith v East Ellow Rural District Council [1956] AC 736 considered - Rules of the Superior Courts 1986 (SI 15/1986), O84 - National Asset Management Agency Act 2009 (No 34), ss 2, 4, 9, 10, 11, 12, 17, 35, 84, 90, 91, 99, 147, 148, 149, 182, 193 & first sch - Leave granted for certain grounds (2012/55JR - Finlay Geoghegan J - 22/3/2012) [2012] IEHC 66

Treasury Holdings Ltd v National Asset Management Agency

Facts The applicant group of companies had been engaged in dealing with the National Asset Management Agency (NAMA) over its loan book which had had been transferred to NAMA from other banks. The primary role of NAMA was to manage the acquired loan portfolio which was expected to run off over a 7 to 10 year timeframe so as to obtain the best achievable financial return for the State. NAMA had advanced sums to the applicant for capital expenditure but ultimately decided that they were not satisfied with the proposed creditor strategy and would proceed to appoint receivers over the assets of the company pursuant to the terms of security held. The applicants sought leave pursuant to ss. 182 and 193 of the National Asset Management Agency Act 2009 (‘the Act’) to issue judicial review proceedings to quash the decision taken. It was contended by the applicant that the decisions and actions of NAMA were matters of public law and NAMA had an obligation to exercise its powers in a fair and reasonable manner which should have included affording the applicant an opportunity to be heard prior to making demands and taking any steps to appoint a statutory receiver.

Held by Finlay Geoghegan J in granting leave to the applicant: The Oireachtas had intended that the court in accordance with its normal practice would examine each of the grounds advanced and only grant leave on those grounds which had raised a substantial issue. The applicant had raised a substantial issue for determination by the Court that the decisions to enforce the security and to proceed to appoint receivers were decisions taken in the area of public law. The applicant had raised a substantial issue that NAMA was under an obligation to notify it of the proposed decision to enforce security and to give it an opportunity to be heard prior to the taking of a decision to enforce.

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S193

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S9

PESCA VALENTIA LTD v MIN FOR FISHERIES & ORS 1985 IR 193 1986 ILRM 68 1985/6/1462

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182(1)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182(2)

RSC O.84

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S193(1)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S182(4)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S193(1)(B)

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA (NO 1) 1995 2 ILRM 125 1995/3/1122

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

DELLWAY INVESTMENT LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY (NAMA) & ORS UNREP HIGH 8.11.2010 2010/12/2727 2010 IEHC 375

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

G v DPP & DISTRICT JUDGE KIRBY 1994 1 IR 374 1994/3/724

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S194

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S10

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S10(1)(B)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 PART X CHAP 1

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S2

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S11(1)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S11(1)(A)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S11(1)(B)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S11(1)(D)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S12(1)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S12(2)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S12(2)(A)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S12(2)(K)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S35(1)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S4

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 PART IV

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S90

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S90(3)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S90(5)

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S91

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S99

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S147

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S148

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 SCHED 1

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S149

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S17

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S11

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S12

DELLWAY INVESTMENTS LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY (NAMA) & ORS UNREP SUPREME 12.4.2011 2011/12/2745 2011 IESC 13

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S84

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD & CMSR OF AN GARDA SIOCHANA 1997 2 IR 489 1997 2 ILRM 321 1997/4/1431

WOOLF & ORS DE SMITHS JUDICIAL REVIEW 6ED 2007

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S11(1)(D)(ii)

ZOCKOLL GROUP LTD & ORS v TELECOM EIREANN 1998 3 IR 287 1998/10/3239

DEANE & ORS v VOLUNTARY HEALTH INSURANCE BOARD 1992 2 IR 319 1992/6/1609

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

COUNCIL OF CIVIL SERVICE UNIONS & ORS v MIN FOR THE CIVIL SERVICE 1985 AC 374 1984 3 WLR 1174 1984 3 AER 935

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