THE SALE of a Finglas shopping centre site for €13 million against the wishes of builder Brian Cunningham was central to his company’s unsuccessful marathon legal action against First Active, a High Court judge said yesterday.

Mr Justice Frank Clarke said he was satisfied there was not enough evidence to say the site was sold at “anything other than its proper value”.

The judge had last December ruled the Cunningham Group had failed to establish a prima-facie case either against First Active or a receiver sent in by the bank to take over the group in 2003.

Yesterday, he delivered a 169-page judgment outlining his reasons for his decisions.

The judge outlined how the sale of the shopping centre site in Finglas in 2002, which the Cunningham Group had bought for €9.5 million in 1998, was undertaken in the face of strenuous opposition by Mr Cunningham.

The Finglas venture was one of a number in which Cunninghams was involved. Others included an apartment/commercial development called Bailey Point in Salthill, Galway, and a housing scheme on the Malahide Road, Dublin.

The judge said the fate of all three developments, which were put into receivership by First Active, arose from difficulties over the Finglas site which First Active wanted to be sold to part-fund the Cunningham Group’s other projects. Mr Cunningham was “strenuously” opposed to this.

The decision to sell the site was taken by the board of the main Cunningham Group company, Moorview Developments Ltd, which included former taoiseach Albert Reynolds as its chairman and former IDA chief executive Pádraic White, and was taken at a time when the group was struggling, the judge said.

The Finglas property was eventually sold for €13 million to a client of First Active, but there was a further diminution of the funds available when the Cunningham Group’s solicitor, the now struck-off Michael Lynn, deducted €800,000 in legal fees, the judge noted. A number of attempts to get Mr Lynn to testify during the High Court action failed last year.

The financial position of the Cunningham Group was to worsen shortly afterwards at a time when Mr Cunningham employed another struck-off solicitor, Elio Malocco, in what the judge described as “a rather curious capacity” to write letters, in Mr Cunningham’s name, to First Active and others within the Cunningham Group.

It was impossible to avoid the conclusion that the effect of many of those letters was to “create as much difficulty for those parties as possible”. It was during this letter- writing campaign that relations between Mr Cunningham and his fellow directors (including Mr Reynolds and Mr White) “deteriorated significantly” and did not fall short of what First Active had characterised as “open warfare”.

After a crisis meeting between First Active and the Cunningham Group directors (excluding Brian Cunningham) in April 2003, a receiver was appointed.

Mr Justice Clarke said there was no evidence on the core claim of fraudulent misrepresentation by First Active in relation to the future funding of Cunninghams following the sale of Finglas.