The family of a businessman who left a suicide note telling of his desperation at being pursued over a €31 million loan are opposing a legal action by a Nama company aimed at recovering the debt.
The representatives of the estate of Philip De Vere Hunt may pursue his claims he was not personally liable for the debt, the High Court ruled.
Mr De Vere Hunt (64), Ardmayle House, Cashel, Co Tipperary, was found dead at his cattle mart property in Cashel on December 18th, 2012, the same day a case over the debt was due to be heard.
At his inquest, coroner Paul Morris said Mr De Vere Hunt’s dealings with Nama, which had taken over the €31m debt to AIB, had “brought him to the end of his tether”.
Before he ended his life, Mr De Vere Hunt left a “very, very sad note” which described his “sense of desperation” on the matter and his fear the family farm could be taken away from them, Mr Morris said.
The coroner also said it was “time that someone shouted stop” regarding the banks’ approach to debtors.
After his death, proceedings seeking judgment for the €31 million were adjourned pending progress on administration of his estate.
Nama company, National Asset Loan Management Ltd (Nalm), later alleged, prior to his death, Mr De Vere Hunt had transferred debt-free property to his son Robert.
The company then applied to have that transfer declared void and sought to reconstitute the proceedings against the estate.
A firm of solicitors for the family took over administration of the estate and sought to file a new defence and counter-claim to Nalm’s judgment proceedings.
The estate sought an order from Mr Justice Brian Cregan the 2009 Nama Act does not require leave of the court to delivery that defence/counter-claim.
If such permission was required, an order to that effect should be granted by the court, it was submitted.
Mr Justice Cregan granted leave to the estate to make, in its counter-claim, a plea of mutual mistake between the parties whether Mr De Vere Hunt enjoyed limited liability for repaying the loan when the loan agreement was entered into.
The judge refused to grant leave to allow them plead breach of contract against Nalm. Such a claim should be made directly against AIB if the defendant so wished, he said.
He also refused leave to pursue a misrepresentation claim against Nama and said any such claim should also be made against AIB, if so wished.
The defendant did not actually require leave of the court to pursue Nama for misrepresentation or delay claims or to challenge the constitutionality of parts of the Nam Act, he said.
Mr Justice Cregan said Mr De Vere Hunt and Pat Moloughney, Newpark, Dualla, Cashel, Tipperary, were party to a loan agreement with AIB in June 2010 in which they were advanced about €30 million.
The two men’s company, BPD Capital, was behind a 77,000 square foot shopping centre at Old Cork Road, Cashel.
They failed to repay the loan on agreed terms, AIB claimed.
The men refused to pledge any of their unencumbered assets to support the debt because, they argued, the liability was restricted to secured assets supporting the loans. They also claimed their partnership agreement would not have allowed them pledge personal assets.
The bank said there was no merit to this claim and the loan facilities were subject to full recourse to their assets.
The men sought to defend the claim for judgment and counter-claimed.
Mr Justice Cregan said by June 2012, events had moved on and Mr Moloughney was declared bankrupt in the UK.
The hearing of the men’s application to challenge the judgment application was due to be heard the same day Mr DeVere Hunt’s body was found. When the matter next came before the court in May 2013, Nalm applied for and was given judgment for €31 million against Mr Mcloughney, given he was now a bankrupt.
Last January, an application to re-enter the case against the De Vere Hunt estate was made after the transfer of assets to the son was discovered.