High Court: Possession dispute remitted to plenary hearing

About this case:

• Citation:
  [2026] IEHC 369
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Nessa Cahill

Delivering judgment for the High Court, Ms Justice Nessa Cahill opined: “The documentary and affidavit evidence presented is confusing and contradictory in certain material respects and raises several questions that cannot be resolved in a summary fashion.”

Background

On 31 June 2006, the property at 22 Toberburr Avenue, St. Margaret’s, Co. Dublin was transferred to the defendants by one Ms Thornberry.

The defendants subsequently mortgaged the property to Ulster Bank on 14 February 2007 as security for a loan facility. The defendants were registered as owners of the property and the mortgage was registered as a charge against the property on 16 February 2007 in the Land Registry.

The deed of transfer from Ms Thornberry was allegedly amended and re-executed on 13 April 2007 and the register later rectified and amended on 23 December 2023 to record the defendants as registered owners of the property from 8 June 2007, when the amended deed was lodged. The folio also recorded Ulster Bank as holding the charge on the property from 8 June 2007.

The plaintiff alleged that the relevant loan facility and mortgage had been transferred to it by Deed of Transfer dated 28 June 2019, and on 22 October 2019, the plaintiff was registered as the owner of the charge on the property’s folio.

The plaintiff demanded repayment of the loan facility and on 16 June 2020, appointed receivers over the property.

The plaintiff issued special summons proceedings seeking an order pursuant to s.62(7) of the Registration of Title Act 1964 for possession of the property.

The defendants opposed the order and requested that the matter be remitted to plenary hearing.

The High Court

Ms Justice Cahill outlined that the test to be applied in summary applications for possession pursuant to s.62(7) was that in Bank of Ireland Mortgage Bank v. Cody [2021] 2 I.R. 381, which set out that the plaintiff was required to establish that it was the owner of the charge and that the right to seek possession had arisen and was exercisable on the facts.

The judge considered that the most important aspect of the jurisdiction to remit to plenary hearing outlined in Cody was that remittal may be the default if there are averments made in affidavits which are credible but not dispositive, but which need to be expanded upon or tested for the matter to be fairly decided.

As to whether the plaintiff had demonstrated ownership of the charge, the court explained that the plaintiff asserted that the conclusiveness of the register as evidence of the ownership of the charge could not be looked behind or challenged by way of defence in summary proceedings and that any challenge to the register must be brought in separate rectification proceedings, naming Tailte Eireann as a party.

The court noted that the defendants disputed the validity of the mortgage, based on the contention that the original deed transferring the property to the defendants from Ms Thornberry was ineffective as Ms Thornberry did not then have title to the property, and accordingly, that the mortgage dated 14 February 2007 needed to be re-amended and re-executed to reflect the amendment of the original deed in April 2007.

Having regard to Tanager DAC v. Kane [2019] 1 IR 385, the court was satisfied that it was not now open to the defendants to seek to challenge the validity of the mortgage or the registration of the charge in the proceedings, finding that the plaintiff had proven its ownership of the mortgage.

The court was further satisfied that plenary proceedings purportedly issued by the defendants against the plaintiff and receivers seeking rectification of the register could not be properly characterised as rectification proceedings for the purposes of staying the proceedings before it, where inter alia Tailte Eireann was not a party thereto.

As to whether the right to possession had arisen and was exercisable, Ms Justice Cahill determined that four important points arose from the plaintiff’s affidavit evidence.

Firstly, the court pointed out that the only instrument pleaded in the special summons as being the root of the plaintiff’s title to the loan was the deed of transfer dated 28 June 2019, but that in the affidavit evidence, no reference was made to that instrument, a matter which “alone makes Promontoria’s application for a possession order in this summary application untenable”.

Secondly, the court found it remarkable that despite relying on three separate documents to show that Cabot Financial Ireland Ltd did not hold legal title to the loans, contrary to what was stated in the plaintiff’s own financial statements and directors’ report, they were not exhibited.

Thirdly, the court highlighted that the plaintiff’s affidavits contradicted each other in relation to whether a letter of demand erroneously referred to a deed of 30 November 2018 as the instrument by which the plaintiff obtained title to the loan and mortgage.

Fourthly, the court found that the affidavits did not explain how the same specific error with regard to the legal ownership of the loan was made both in correspondence to the defendants and in such an important document as the company’s audited and filed financial statements signed 12 months later.

Ms Justice Cahill explained that a situation of “material confusion” had been identified by the defendants and that the evidence of the plaintiff’s evidence did not resolve or seek to explain it.

The judge did not accept the proposition that the plaintiff was relying only on the deed of 28 June 2019 and that it was irrelevant to consider any other legal instruments regarding the transfer of ownership of the loan.

In that regard, the court stated: “The material fact here is that, while there is striking confusion and inconsistencies in the evidence presented by Promontoria, its final position on affidavit is that there are three legal instruments which ostensibly demonstrate that legal title vests in Promontoria. The Deed of Transfer of 28 June 2019 is not one of them.”

The court found that the point of the judgment in English v. Promontoria (Aran) Limited (No 2) [2017] IEHC 322 advanced by the plaintiff as authority for its proposition was that once the transfer of title has been proven on the balance of probabilities, it is not for the borrower or the court to look behind the legal instruments that demonstrate that chain of title to ascertain any defects or deficiencies in those deeds. 

Ms Justice Cahill was satisfied that the state of the evidence in English No. 2 stood in sharp contrast to the evidence presented to her, where the directors in English No. 2 had sworn affidavits discharging the onus on the plaintiff of showing title to the loans at issue in that case.

In the circumstances, the judge determined that the plaintiff had not demonstrated on the balance of probabilities that it held legal title to the loan and mortgage.

Finding that in Cody, it appeared to be envisaged by the Supreme Court that only insurmountable obstacles to the grant of relief sought would warrant refusal of the relief sought, Ms Justice Cahill was satisfied that the issues before her were more properly issues of proof which may be remedied by the presentation and testing of further evidence.

As to the defences raised, the court saw merit to the defendants’ challenge to redactions made to the loan transfer document and to a question raised about the possible transfer of legal ownership of the loan and mortgage to Mount Street Mortgage Servicing Limited.

Conclusion

Accordingly, the High Court remitted the proceedings to plenary hearing.

Promontoria Scariff Designated Activity Company v Woodruffe & Anor [2026] IEHC 369