EBS secures summary judgment

The Educational Building Society has secured summary judgment orders for €31.7 million, plus interest of more than €1.6 million, against Kingspan co-founder Brendan Murtagh and another businessman over their failure to make certain payments under a settlement agreed last year in proceedings brought over unpaid loans for land developments in Co Cork.

Mr Justice Peter Kelly noted the terms of settlement had included a proposed raising by the defendants of $60 million dollars in funds and the handing over to the EBS of a painting by artist Jack B Yeats entitled Looking towards the lake. That painting was handed over but the fund-raising had not been completed to date, he was told.

Given the admitted breaches of the settlement, counsel for the EBS applied at the Commercial Court today for final judgment orders against Mr Murtagh, “Dunheeda”, Kingscourt, Co Cavan, and Greg Coughlan, “Fastnet House”, Ardbrack, Kinsale, Co Cork.

Declan McGrath, for the defendants, said he could not dispute there had been default of the provisions of the settlement agreement and that the EBS was entitled to apply for summary judgment.

However, he urged, because the measures for the raising of the $60 million funds on behalf of the defendants by Assured Capital Management via a “bond” was near finalisation and could be adversely affected by the entry of judgment, he was asking that the judgment order should not actually be made for another two weeks.

The fund-raising, the court heard, required the defendants to pay some €250,000 to EBS by November 30th last in partial discharge of VAT liabilities and also to pay a further €250,000 each month afterwards until the full VAT liability to EBS was paid off.

The settlement also provided the defendants were to use funds raised to pay EBS some €300,000 per month from March 2010 to pay interest on other loans and to use their best efforts to increase those repayments from September 2010.

If there was any breach of the terms of settlement, the EBS would be entitled to final judgment for all monies owed, it was also agreed.

After Mr McGrath made his submissions, counsel for the EBS said his instructions were to seek judgment now but the matter was in the hands of the court.

Granting summary judgment, Mr Justice Kelly said it was acknowledged there had been a breach of the settlement obligations.

In addition, given the EBS’s refusal to consent to the application not to enter judgment at this stage and the acknowledgement time was “of the essence” here, he would also decline to direct that the judgment order not be drawn up now.

The case arose from loans provided by EBS to two companies, Ballycarney Properties Ltd and Moira Properties Ltd, both with addresses at Lapps Quay, Cork, for the purchase and development of sites totalling 32 acres at Little Island, Cork.