Businessman Harry Crosbie has lost an appeal over Nama's efforts to recover a €77 million debt under which his personal assets, including his family home, are at risk.
Mr Crosbie claimed a gross injustice has been done to him because Nama failed to honour an agreement that certain personal assets would not be part of the enforcement of a judgment against him for the €77million commercial debt.
Nama said there was no concluded agreement.
He appealed a High Court decision granting the judgment to Nama company, National Asset Loan Management Lt (NALM) claiming he had a full defence to the claim. He also counterclaimed against NALM.
In two separate judgments on Friday, a three-judge Court of Appeal dismissed his appeal.
His case centred on an August 2014 letter from Mr Crosbie’s solicitor to Nama’s solicitors in which the businessman agreed to the disposal of certain assets.
Dublin Port
These included the proceeds of the sale of a site in Dublin Port by a company called Storecom and the sale of Mr Crosbie's property in the port.
The letter stated Mr Crosbie agreed to have no further engagement with Dunnes Stores or with Dunnes' chief executive, Margaret Heffernan, concerning ongoing litigation over the Point Village in Dublin.
He also agreed to endeavour to sell a 50 per cent interest in a property in Eze, France, notwithstanding his wife Rita Crosbie’s claim to full ownership of it. Nama would not object to the proceeds of the Eze sale being used to discharge debts over Mrs Crosbie’s house in Wexford.
Mr Crosbie also agreed to appoint a sales agent to dispose of three interlinked apartments at Villefranche Sur Mer in France and transfer 45 per cent of the sale proceeds to Nama.
Crucially, the letter stated Nama would, on or before March 1st, 2014, release its charge and any claim to Mr Crosbie's home at Hanover Quay, Dublin, and over his son Simon's home at Booterstown Avenue, Blackrock, Dublin.
Mr Crosbie argued this letter was a comprehensive agreement with Nama which was understood to preclude Nama/NALM from taking enforcement proceedings against him, suing for judgment or having him declared bankrupt.
Nama said nowhere in that letter was there any reference to any forbearance to sue on its part. It did not constitute debt forgiveness or an acknowledgement that the agreement was in full and final settlement.
The High Court found the letter was not a binding agreement and, even if it was, it was no longer in force because Mr Crosbie had not fully performed it. It could not give rise to any real defence against Nama’s claim.
In his judgment on the appeal, Mr Justice Michael Peart agreed with the High Court decision.
Liability
It was fair to say Mr Crosbie’s appeal was focused not so much upon denial of liability for the debt — because he conceded the money was owing — but that the August 2012 letter from his solicitor must be construed as an agreement, Mr Justice Peart said.
Mr Crosbie argued this meant he was entitled to pursue a counterclaim whereby he might obtain certain declarations as to the scope and effect of the €77m judgment against him.
Mr Justice Peart said the gravamen of the appeal, by way of his counterclaim, was that Nama should be precluded from enforcing the judgment against his personal assets.
The judge was firmly of the view Mr Crosbie should not be allowed to use the counterclaim to determine whether enforcement steps can be brought. The decision of the High Court in refusing to permit this by way of counterclaim was correct, he said.
It was open to him to make those arguments when Nama seeks to take enforcement steps including taking bankruptcy proceedings, he added.
In her separate judgment, Ms Justice Mary Finlay Geoghegan said Mr Crosbie's claim there was a failure by the High Court to consider his counterclaim was not a sustainable ground for allowing an appeal against the judgment.
