A Dublin solicitor and his wife have argued before the Commercial Court it is "unfair" and "unreasonable" of Bank of Ireland to seek €69.5 million summary judgment orders against them over unpaid property loans and guarantees.
Brian O'Donnell and Dr Mary Pat O'Donnell, Gorse Hill, Vico Road, Killiney, Co Dublin, also claim the bank's action is very ill-considered and has devalued the couple's international property portfolio because of the negative publicity the case has received internationally.
Mr O'Donnel claims there was a "tacit" agreement with the bank it would continue to roll up interest and support facilities until he could make the necessary sales "to regularise the position".
However, Paul Gardiner SC, with Cian Ferriter, for BoI argued today the couple have advanced no credible or arguable defence such as permit a plenary hearing of the bank's proceedings against them and disentitle the bank to summary judgment.
There was no dispute the various loans were made and there was default on those loans for more than two years and it would be doing no injustice to the couple to enter summary judgment, counsel said.
This was "not a situation of unequal bargaining power", counsel submitted. Mr O'Donnell did not "shy away" from saying he was an expert in relation to property transactions and had reminded the court on several occasions he was involved in many property transactions which had made lots of money until more recently.
In exchanges with counsel, Mr Justice Peter Kelly noted Mr O'Donnell, who has his practise Brian O'Donnell & Partners at Merrion Square, Dublin, had described himself as one of Ireland's leading corporate lawyers.
Mr Gardiner said, while Mr O'Donnell argued the bank had assured him it would be "flexible" in relation to the facilities entered into and was complaining it was not as flexible as he wished, the court had to ask what flexibility he was searching for.
What Mr O'Donnell wanted was, in light of the financial crisis that has affected the globe and consumed many of his investments, the bank should "simply not call in the money".
Mr O'Donnell's claims to have a defence under the Consumer Protection Code was also "novel" and, if correct, meant there had been a significant and dramatic change in banking law here without any statutory enactment, Mr Gardiner added.
BoI is seeking the €69.5 million summary judgment orders arising from various loans, including a €7.7 million loan to purchase a property at Ailesbury Road, Dublin and other facilities to refinance property loans with Ulster Bank and Anglo Irish Bank.
The bank is also seeking some €42 million summary judgment orders against three companies of the couple over the same loans. The three companies are GreyStoke Societe Anonyme, a Luxemburg registered company; Vico Swiss Holdings AG and Avoca Properties Ltd.
The Bank claims default for some time of interest payments on various facilities and also alleges the couple had failed ultimately to advance acceptable proposals to address their indebtedness and that of their companies. Last December, the Bank demanded repayment of the facilities and also demanded repayments under various guarantees of the couple.
The defendants contend they have raised an arguable defence on various grounds, including the bank had acted unfairly and unreasonably and in breach of its fiduciary duty to them in bringing the summary judgment proceedings and should have given them a proper opportunity to service and refinance the various loan facilities.
They have also counterclaimed for breach of implied terms of agreement and for reputational damage arising from the bringing of the summary judgment claim.
Their counsel Maurice Collins SC said the bringing of the action was very ill-advised and destructive in relation to value of their property portfolio. The reporting of the case had done untold damage to Mr O'Donnell's business interests and practice, he added.
Mr Collins also argued his clients had a defence on grounds the bank had breached the Consumer Protection Code in its dealings with them. The Code applied to all bank customers, even if they were borrowing for investment, he argued.
The couple also argue the bank is stopped from bringing the proceedings arising from its dealings with the couple concerning the loans.
Mr O'Donnell has alleged the bank was trying to pressure him and his wife to sell shares in Redicent Ltd, a property holding company whose only asset was a prime property asset in the UK, Sanctuary Buildings, Westminister, London. The bank had loaned some £26.7 million to Redicent under a junior loan facility which was not part of these proceedings and not secured on the Sanctuary Buildings property or the shares of Redicent, he said.
The case continues tomorrow.