Dellway Investments & ors v NAMA & ors

Supreme Court Judgement - Dellway Investments & ors v NAMA & ors (Patrick McKillen)

by Cathal N. Young, O'Reilly & Co. Solicitors & Notaries Public in Dublin

This is an appeal of the above named appellants against an order of the High Court refusing their application for certain reliefs by way of judicial review against the above named respondents. The application for relief by way of judicial review, as amended, centred upon a purported decision of the first named respondent, NAMA, to acquire from particular banks’ certain ‘eligible bank assets’, (hereafter eligible assets) within the meaning of s. 69 of the National Asset Management Agency Act 2009. These assets consist of substantial loans made by the banks concerned to the appellants. It is relevant to note at this point that it is common case that NAMA has not actually acquired those eligible assets since it has not taken the necessary legal step pursuant to s. 87 of the Act of 2009. The exercise of its powers under that section is a necessary legal step before any decision to acquire eligible assets has practical or legal effect in that respect.

It would appear that in or about late May 2010 the appellants first became aware that NAMA proposed to exercise its powers pursuant to the Act of 2009 to acquire their eligible assets, that is to say their credit facilities, from both Bank of Ireland and Anglo Irish Bank. The appellants had initiated their application for leave to seek judicial review on July 1st 2010 by way of a motion returnable for July 5th 2010.

The Appellants

The first fifteen appellants are companies, bodies corporate and/or partnerships incorporated in the State, in the United Kingdom and in France in respect of which the sixteenth appellant, Mr. Patrick McKillen, has a 50% or 100% beneficial interest. Mr. McKillen is a businessman and property developer. These appellants have extensive loan credit facilities with Anglo Irish Bank and the Bank of Ireland (although the appellants have focused in these proceedings on their loans from the latter which constitute the vast bulk of such loans) which, for the purpose of these proceedings are not disputed as constituting “eligible assets” within the meaning of s. 69 of the National Asset Management Agency Act, 2009 (hereafter referred to as “the Act of 2009”) and Regulation 2 of the National Asset Management Agency (Designation of Eligible Bank Assets) Regulations 2009.

The Respondents

The National Asset Management Agency, commonly and hereafter referred to as NAMA, was established by the Act of 2009 under which, as explained later in this judgment, it has powers to acquire the interest of certain banks in “eligible assets”, including those relating to the appellants. As also explained later in this judgment, relevant to the powers and actions of NAMA is the work of an interim team, from the National Treasury Management Agency, and in particular a purported decision of that interim team to acquire those assets on 11th and 14th December 2009, carried out in anticipation of the establishment of NAMA. The Act of 2009 came into force by virtue of a Ministerial Order under the Act, on 21st December 2009. The Board itself was appointed on 22nd December 2009. The third named respondent is sued in his capacity as representative of the State, the second named defendant.

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Reference Info: n/a | Ireland

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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