By Owen Reid
Anglo Irish Bank Corporation Plc has been held entitled to possession of Forenaughts House in Naas after the High Court rejected former Smart Telecom chief executive Oisin Fanning's attempt to have the mortgage dispute sent to a full trial.
The proceedings concerned 24.464 acres at Forenaughts House, which had been mortgaged to the bank in November 2005. The borrowing arose from a series of facilities used partly to refinance a €2.9 million home loan and partly to fund Fanning's purchase of shares in Smart Telecom.
The first facility, agreed in September 2005, was for €7.9 million. A further €505,000 facility followed in October. In November 2006, another facility letter provided for €8.048 million secured against the property and 15.675 million Smart Telecom shares.
Fanning said he had entered the borrowing arrangements after assurances from Brendan Murtagh, then Smart Telecom's largest shareholder. He claimed the bank had been influenced by Murtagh, had relied on his assurances about repayment and had not properly assessed Fanning's ability to repay. Anglo disputed those claims.
Ms Justice Dunne held that the transactions were commercial borrowings rather than a conventional home loan. Fanning stood to benefit if the Smart Telecom share placement succeeded, while his home was expressly taken as security.
The judge found no basis for challenging the mortgage's execution or the sums claimed by the bank. She also rejected the suggestion that the bank never intended to rely on its security, noting the formal documentation signed by Fanning and his partner, Pearl Roche.
Even if Fanning had an arguable dispute concerning the €5 million used to buy Smart Telecom shares, the court held that the separate €2.9 million refinancing element was also in default and secured by the mortgage.
The High Court therefore declined to adjourn the case to a plenary hearing and held that the bank was entitled to possession.