Hotelier Paddy McKillen jnr has advanced a “contradictory” and “dishonest” narrative in his bid to have set aside a bankruptcy summons over an alleged €2.1 million debt, it has been claimed before the High Court.
It was “clear” from WhatsApp messages between McKillen jnr and David Agar of Herbert Street Finance company (HSF) in late 2022 that the hotelier was “in desperate straits” and relying on his friendship with Agar to get funds, HSF barrister Bernard Dunleavy also said.
After things “turned sour”, and HSF was not repaid, it issued the bankruptcy summons last January and McKillen jnr has advanced no basis to set that aside, counsel submitted.
There was no evidence in support of McKillen jnr’s claim that the December 2022 loan was illegal in that it allegedly was not a commercial loan by HSF to McKillen jnr’s company, Cool Dust, but one made personally to McKillen jnr as a consumer, he said.
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The businessman’s evidence, that he genuinely expected the funds advanced would stabilise the Pinnacle apartment development in south Dublin and HSF would be repaid from that development, was “exactly” as described in the HSF affidavits.
The funds were ultimately used to pay other liabilities of McKillen jnr and companies of his, but there was no evidence that HSF knew, as McKillen jnr alleged, of that in advance, counsel said.
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Gary McCarthy, counsel for McKillen jnr, of Torquay Road, Foxrock, Dublin, said there was no sworn evidence of dishonesty or bad faith on the businessman’s part in seeking to have the summons set aside.
The law requires the court “shall” set aside a bankruptcy summons if the debtor raises a real and substantial issue to be tried in plenary proceedings and McKillen jnr had raised several issues, he submitted.
These include that the alleged debt was overstated and the loan was illegal in that it was not a commercial loan made by a registered credit institution but rather one extended to McKillen jnr personally, McCarthy said. The facility involved an “extraordinary” rate of interest.
Having heard the sides, Judge Liam Kennedy said he would give judgment on the set-aside application at a later date.
Issued last January, the summons, a first step in bankruptcy proceedings, alleged McKillen jnr would have committed an act of bankruptcy unless he paid an alleged debt of €2.1 million or applied to have the summons dismissed on grounds he was not indebted to HSF in any sum, or only in the sum of €20,000.
HSF claimed the €2.1 million debt arose on foot of McKillen jnr covenanting to pay on demand the obligations of Cool Dust Ltd to HSF up to a maximum of €3 million.
It claimed sums of €2.3 million were received in part payment of Cool Dust’s obligations, but about €2.14 million remains due and owing, plus daily interest.
In the set aside application, McKillen jnr denied he was indebted to HSF in any sum exceeding €20,000.
In separate proceedings initiated in March, he claimed the December 2022 facility agreement was void and unenforceable and no sum was due by him to HSF.
It is also alleged McKillen jnr has been wholly or partially discharged from his obligations under the indemnity due to material alterations to the facility agreement made without his knowledge or consent, including application of funds received from third parties without his consent and alleged transactions/dealings of which he was unaware.
He was also claiming damages on grounds including that the bankruptcy proceedings are an abuse of process and for alleged breach of contract.
During Monday’s hearing, several WhatsApp messages were read, including one from McKillen jnr on Christmas Eve, 2022, thanking Agar for “doing the deal with us in Mount Merrion”.
In a September 2024 message from McKillen jnr, which counsel said was sent “after things turned sour”, McKillen jnr told Agar he “can’t believe you threatened to try and put a lean on Edel’s house”, saying he had known Agar all his adult life and his father had known him for more than 40 years.
McKillen jnr said he had “rooted” for Agar during the latter’s “very tough time” with Nama (the National Asset Management Agency). McKillen jnr said he had “sold the hotels”, “I paid you back 2m from that”, told Agar he would “never let you down” and to “stick with” the deal
In reply, Agar sought “a solution post haste” and expressed concern about other creditors.
McKillen jnr has been behind many of Dublin’s most significant entertainment and dining venues over the past 20 years.
Founded with his long-time friend Matt Ryan, McKillen jnr’s Press Up grew fast by developing its own restaurants and existing, successful operations including Wagamama, Elephant & Castle and Wowburger.
By September 2024, Cheyne Capital had taken a majority stake in the business, later renaming it Elective Hospitality Group.
