Nama asks for legal challenge by McKillen to be fast-tracked

THE NATIONAL Asset Management Agency (Nama) and the State will ask the Commercial Court next Monday to fast-track the first legal challenge to the agency by businessman Paddy McKillen and 14 of his companies over the proposed transfer to Nama of €80 million of the companies’ loans.

Mr McKillen claims the €80 million credit facilities from Bank of Ireland are “fully performing”, not impaired, there is no default on repayments and transfer of the loans would have a “drastic and significantly detrimental” impact on his business and property rights.

He has also expressed “grave concern” about the impact internationally of transfer of the loans to the “toxic bank”, the implications for his companies’ ability to raise additional facilities and the valuations placed on the loans by Nama.

For instance, Nama had obtained a £725.9 million valuation from CBRE for assets on which a loan for the UK Maybourne Hotel Group was secured when he had last month obtained a valuation £994.78 million from Cushman Wakefield Hospitality Ltd, he said.

He was concerned such valuations would drive down the realisable value of his companies property portfolio.

Mr McKillen said his companies had not purchased any Irish assets since 1998 “and hence have not engaged in speculative development”. His companies instead invested in “world-class retail centres and other quality assets”.

Concern that his loans would end up in Nama had already led to a reluctance by banks to fund a Captain America’s and Wagamama food chain outlets which he intended to open in Blanchardstown shopping centre, creating 100 jobs, Mr McKillen said.

He was also critical of the manner in which Nama had dealt with the issue of the proposed transfer.

The 14 companies and Mr McKillen are challenging the proposed transfer to Nama of credit facilities of some €80 million advanced by Bank of Ireland alone, Paul Coughlan, for Nama and the State, told Mr Justice Peter Kelly yesterday. The case was “of very considerable urgency given the subject matter”.

Mr Justice Kelly granted Mr Coughlan leave to bring a motion at short notice on Monday to transfer the proceedings by Mr McKillen to the Commercial Court, the division of the High Court which fast-tracks business disputes.

John Gleeson SC, for Mr McKillen, said the application to transfer the case to the Commercial Court on Monday would not be opposed.

The proceedings are by Dellway Investments, 13 other companies and Mr McKillen against Nama and the State. The companies also have loans with Anglo Irish Bank and Irish Nationwide Building Society but the action relates to the B of I facilities. Mr McKillen says he is reserving his rights relating to the other facilities.

In an affidavit, Mr McKillen said he believed, although the loans at issue were not impaired, that various properties had been valued significantly lower than their market value. An investment property owned by him at Place Vendome in Paris was valued by Nama at €25.6 million when he had last month obtained a valuation of €35-40 million for it, he said.

Other properties at Old Bond Street, London, were valued by Nama in November 2009 at €14.7 million when he had entered into a contract in May last for sale of that property for €18.2 million. Nama had told Bank of Ireland its approval was required for that sale and such conditions were contrary to his interest, he said.

Mr McKillen was concerned about the possible impact on his reputation of transfer to Nama when it was regarded by international financial institutions as a bad or toxic bank set up by the State to deal with distressed loans against properties which had failed.

The borrowers of those loans “are perceived, perhaps wrongly” as having engaged in reckless conduct over the past 10 years in Ireland requiring State assistance to bail them out, he said. His companies loans were “simply not in this category” but were advanced for and secured against “well-let fully functioning commercial offices, retail shopping centres and hotels”.

Mr McKillen wants declarations the procedures and processes adopted by Nama are lacking in natural and constitutional justice and deny his companies the opportunity to argue their loans are not in fact “eligible bank assets” within the meaning of the Nama Act 2009.

It is claimed Nama has denied the applicants reasonable opportunity to refinance their borrowings so as to ensure their credit facilities do not represent eligible bank assets and has also denied them the chance to make representations as to the value at which their credit facilities are transferred.

The proposed transfer breaches their property rights under the Constitution and European Convention on Human Rights, it is claimed.

Unknown to them, the companies claim Anglo had, in November 2009, in response to a request from Nama, provided information to it about their credit facilities with Anglo. Anglo objected to Nama acquiring those loans and that matter was now subject of a review procedure, but the companies were not allowed to participate in that.