Mary Carolan

A businessman has no arguable defence to a bank’s claim for €6.2m summary judgment orders being granted against him over loans secured on Gorey Business Park in Co Wexford, a High Court judge has ruled.

Mr Justice Max Barrett said he was mindful of the time and energy James Osborne, Fort Road, Gorey,  has devoted to Gorey Business Park, which employs 400 people, over decades.

He was also mindful, “most of all”, the cost of legal representation is such Mr Osborne was compelled through circumstance to argue his case in person, the judge added

It was a “lamentable” but “inexorable” consequence, based on the facts and law, KBC Bank was entitled to summary judgment against Mr Osborne as sought, the judge held.

KBC appeared, in its dealings with Mr Osborne, to have acted within the spirit of forbearance and reasonableness that informs the Central Bank’s Consumer Protection Code, he said.

Efforts to reach agreement, involving Mr Osborne selling most of his units in the park to reduce his debt, came to an end last September and the bank then sued to recover the sums owed to it.

In this case, the amounts involved were “vast”, dealings between the parties were “considerable”, documents were lengthy but the matters at issue are “simple”, he said. Borrowing happened, default had arisen, recovery was sought and “no defence is apparent”.

Mr Osborne had no arguable defence based on claims under the Consumer Credit Act as these were clearly commercial loans, he ruled. Nor was there any basis for his claim he was effectively in “partnership” with the bank.

Dring the court proceedings, Mr Osborne also sought to emphasise his honesty but KCB had rightly indicated it had never impugned that, the judge added.

He has adjourned making final orders in the case to Monday to allow the sides consider his judgment and make any consequential applications.

KBC, represented by Rossa Fanning BL, had said its summary judgment application was part of an “enforcement strategy” it had “reluctantly” decided to follow against Mr Osborne. It has also appointed a receiver.

Representing himself during the hearing of the application for summary judgment, Mr Osborne argued the business park is “extremely viable” with almost 100 per cent occupancy of retail units there and expressed concern the bank’s approach and plans for sale would not realise its full value,.

Work at the park is continuing and the value of the asset was being maintained, he said. If it was established he owes the money claimed, he would make sure it was repaid, Mr Osborne added.

KBC granted loans on dates from 2002 related to acquisition and development of units at the business park. Some facilities were repaid and the bank also agreed to restructure certain facilities.

The bank said it had over a number of years asked Mr Osborne to provide additional security and also sought assignment of certain leases but those requests were not met. It appeared the business park generated annual rental income of some €603,000 but that was not being paid to the bank despite conditions in the facility letters, it added.

Last September, the bank formally demanded Mr Osborne immediately pay some €6.2m. It took the legal action “with reluctance” when it could not reach a consensual agreement regarding Mr Osborne’s obligations to it, it said.