High Court allows Planetwhite's appeal, granting declaration of ownership and injunction against Hogans' trespass.

THE HIGH COURT ON CIRCUIT

APPEAL

[2025] IEHC 378

Record No.: 197/25

Circuit Court Record No. 515/2020

Between:-

PLANETWHITE LIMITED

Plaintiff/ Appellant

-and-

EAMON HOGAN and DEIRDRE HOGAN

Defendants / Respondents

Ex Tempore Judgment of Mr. Justice Oisín Quinn delivered this 3 July 2025

I. INTRODUCTION

1. This appeal was heard in Galway on Wednesday 2 July 2025. The plaintiff (“Planetwhite”)

appealed an Order of the Circuit Court made on 21 February 2025 wherein the Circuit Court struck out the claim and made no order as to costs.

2. Planetwhite is a special purpose vehicle company which was set up to own and develop a

5.4 acre plot of land at Rosshill, Roscam, Galway, contained in Folio GY97199F (“the Lands”).

Having purchased the Lands for €700,000 in November, 2019 Planetwhite became, and still is, the registered owner of the Lands in the Land Registry.

3. Planetwhite purchased the Lands in the knowledge that they were being sold by Promontoria (Aran) Limited (“PAL”) without vacant possession in that the defendants (the “Hogans”) were keeping horses on the Lands. There is also a building and sheds on the Lands and the Hogans live nearby in a separate property.

4. PAL had acquired their interest in the Lands from Ulster Bank Ireland Limited (“Ulster Bank”)

who had a charge over the Lands, having lent the Hogans approximately €2.2million in 2008.

Ulster Bank sold their interest in the Lands to PAL in February 2015 and by 2017 the Hogans’ indebtedness had risen to approximately €2.5million.

5. Despite demands the Hogans failed to repay the debt due and then following the sale to Planetwhite, refused to give up possession of the Lands. Planetwhite accordingly issued the underlying Circuit Court proceedings on 14 August 2020 by way of an Equity Civil Bill seeking a Declaration that it is entitled to peaceful and uninterrupted use and enjoyment of the Lands along with various injunctions to restrain the Hogans from trespassing on the Lands.

6. The Hogans filed a Defence to this claim which, amongst other things, put Planetwhite on proof of its ownership and claimed that the Hogans’ right of access to the courts had been interfered with by this sale in circumstances where, at the time of the sale from PAL to Planetwhite, there was extant proceedings between the Hogans and PAL (bearing record no.

2018/438S where PAL was the plaintiff) in which it was said the underlying debt as between

PAL and the Hogans was in dispute. It was also claimed that the sale from PAL to Planetwhite was at an “undervalue”. Both of these claims were abandoned during the hearing by the Hogans.

II. THE EVIDENCE

7. On behalf of Planetwhite, evidence was given by Barry Duffy, Bernard Duffy and Donal O’Sullivan. Barry Duffy is a civil engineer and director of Planetwhite. Bernard Duffy is his father and the owner of a building business. This related business owns a larger site beside the Lands in respect of which there is a planning permission for a residential development on part of this other site.

8. The Duffys hope to obtain further planning permissions to develop all of this other site and the Lands as a residential development. The planning process for the other site was delayed by legal challenges and a difficulty with the sufficiency of the local water supply. The Duffys explained that Irish Water now has a plan to upgrade its local water supply. The Lands have development potential because the Duffys own, through another company, the adjoining lands and can provide access to the public road network. In addition, the Lands are currently zoned for low density residential development. They explained that there is now some urgency as a tax can be levied for the non-development of land zoned for residential use.

9. The Duffys become aware, from a Land Registry search, of PAL’s ownership of the Lands in 2019 and following an approach, they agreed to purchase the Lands, without vacant possession, for €700,000.00. They set up Planetwhite as an SPV to purchase and develop the Lands. The purchase was straight forward and Planetwhite is now registered in the Land Registry as the registered owner of the Lands. None of this was disputed.

10. The Duffys explained that they considered the price to be the full market value and they did not feel the presence of the Hogans “livestock” affected the price. From their perspective, the purchase is advantageous because they own the adjoining lands and will be bringing services (sewage, water, access roads) onto that site which can ultimately be linked into a residential development on the Lands.

11. The Duffys explained that, despite demands, the Hogans have refused to yield up possession of the Lands. They confirmed that Planetwhite is not making any claim for damages.

12. Donal O’Sullivan explained that he was a director of PAL. He gave evidence that PAL had acquired the relevant loan from Ulster Bank in 2015. He described the level of indebtedness and the default. He gave evidence of the Deed of Transfer of the Lands from PAL to Planetwhite of 21 November 2019. The mortgage deed was also put into evidence.

13. He then described how PAL had asked for a number of valuations of the Lands from local valuers. These gave valuations in 2017 ranging from €175k (O’Donnellan & Joyce), and €350k (Keane Mahony Smith), up to €375-€400k (BV Commercial).

14. Ultimately by 2019 PAL were willing to auction the Lands and valued them at €500K and had decided to set a reserve of €550k. By this time there had been bids of €880k and €840K but these were withdrawn, in at least one case, apparently because the bidder had understood there would be vacant possession.

15. Mr. O’Sullivan explained that PAL were very satisfied with the offer of €700k from the Duffys (the opening offer had been €600k and PAL’s opening ask had been €800k).

16. Nothing critical to the central issues was put in the cross-examination of the plaintiff’s witnesses. The evidence of the indebtedness, the letters of demand, the default, the transfer from Ulster Bank to PAL, all went unchallenged.

17. At one point, Counsel for the Hogans sought to ask Mr. O’Sullivan about whether he could recollect the evidence of the receiver in the Circuit Court. For context, neither side in this appeal sought to call the receiver to give evidence. I refused to allow this line of questioning as Counsel for the Hogans could not satisfactorily explain how this linked in with any issue in the pleadings. In addition, when Counsel for the Hogans claimed that this evidence (which it was said Mrs. Hogan would give based on her recollection of what was said by the receiver in the Circuit Court) would be admissible as an admission against interest by a previous owner, it was pointed out that at the time of the evidence given in the Circuit Court by the receiver (February, 2025), the receiver was not the owner; therefore that exception to the hearsay rule does not apply: see McGrath on Evidence, 2nd Edition at para. 5-131 “A statement against proprietary interest made by a predecessor in title of a party is admissible against him or her provided that it was made at a time when the declarant had an interest in the property”.

18. The only witness called for the Hogans was Mrs. Hogan, the second named defendant. She gave evidence about the Ulster Bank loan but did not dispute it. Nor did she dispute the default. She explained that the Lands had passed to the first named defendant from the estate of his late father. She said they lived in a house on a separate site, beside the Lands.

She said that in her opinion the selling price was an undervalue. She accepted that there was no valuation evidence being called on her behalf.

19. She explained that the Hogans had expected to be able to challenge PAL’s legal entitlements in the High Court proceedings (to which Planetwhite is not a party). It was not made clear what the basis of that challenge would be – other than a suggestion that PAL would be on proof of the transfer of the mortgage from Ulster Bank and some other unclear argument about the receiver.

20. Counsel for the Hogans indicated to the court that neither of these arguments (about undervalue or being ‘denied access to the courts’) were being pursued in defence of the claim. It should be observed that in any event there was no obvious substance to either of these arguments.

21. Mrs. Hogan then explained that the Hogans had hoped to come to some arrangement with Ulster Bank and then PAL and she gave general descriptions of individuals retained by the Hogans to engage with the bank. She complained about a lack of contact from Planetwhite even though she did not dispute that she had received their letters demanding possession.

22. She could offer no explanation for not giving up possession to Planetwhite other than to say no one had proved the transfer of the debt from Ulster Bank to PAL or the proper appointment of the Receiver.

III. SUMMARY OF THE PLAINTIFF’S SUBMISSIONS

23. Senior Counsel for the plaintiff submitted that Planetwhite was entitled to the reliefs on at least three grounds:

(i) As the registered owner of the Lands, section 31(1) of the Registration of Title Act, 1964 applies and since there was no plea of fraud or mistake, Planetwhite had established conclusive evidence of its title to the Lands and had established that the Hogans had no permission to be on the Lands and were refusing to yield possession without any lawful excuse;

(ii) There was evidence of a Deed of Transfer from PAL (who had a clear power of sale in the Mortgage Deed and under the provisions of the Conveyancing Act, 1881 section 19(1)(i) which was not disapplied by the terms of the mortgage) to Planetwhite; and

(iii) The evidence of Mr. O’Sullivan established that PAL had acquired the benefit of Ulster Bank’s interest in the mortgage.

IV. SUMMARY OF THE DEFENDANTS’ SUBMISSIONS

24. Senior Counsel for the defendants submitted that the reliefs should be refused for the following main reasons:

(i) Section 31(1) mainly applied to an owner in possession and Planetwhite was not in possession and had purchased the Lands in the knowledge it was not getting vacant possession and this was clearly a feature of the price;

(ii) Section 31 needed to be considered in the context of sections 52 and 72(1)(j) of the 1964 Act and the combined effect of these provisions is that a full owner, such as Planetwhite, takes the land subject to burdens which include, by virtue of section 72(1)(j) “the rights of every person in actual occupation of the land” which was the Hogans;

(iii) The actual contract for sale (as opposed to the Deed of Transfer) was entered into by the receiver and (per Wylie, 5th Edition, para 14.91) the receiver had no automatic power of sale and none had been contained in the mortgage and there was no evidence of any delegation to the receiver by the mortgagee; and

(iv) Section 31(1) is not evidence of the terms of any actual transfer, and Fannon v Ulster Bank [2024] IECA 51 at para. 99 was relied upon where Barniville P. states:-

“However, s. 31(1) provides that the register shall be “conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon”, it is not evidence, still less conclusive evidence, of the terms of any transfer or assignment under which the owner may have become entitled to the benefit of any charge registered on the folio. The provisions of s. 31 of the Registration of Title Act 1964, do not cure this evidential deficit as that section 46 does not provide that the entry on the register is conclusive evidence of the terms of the alleged assignment and of whether it is “absolute” or not.”

V. DECISION

25. I am satisfied that the evidence establishes the following:

(i) In 2008 the Hogans borrowed €2.2m from Ulster Bank and mortgaged, by Deed of Mortgage dated 22 April 2008, inter alia, the Lands as security for that loan;

(ii) Ulster Bank lawfully transferred its interest in the mortgage to PAL on 12 February, 2015 (the Mortgage Deed contains a clear power of transfer);

(iii) The Hogans failed to repay the sums due despite demands from PAL including demands on 7 March 2016, 2 January, 2018 and 4 April, 2018;

(iv) Pursuant to the mortgage and the provisions of the Conveyancing Act, 1881 and section 19(1)(i) in particular, PAL accordingly had a legal power to sell the Lands including by private contract;

(v) By Deed of Transfer of 21 November 2019 PAL sold the Lands to Planetwhite for €700,000.00;

(vi) The valuation evidence which was not seriously disputed indicated that this price was in the region of full market value (the owners of Planetwhite owned adjacent Lands which are also intended for residential development so the Lands had a particular attraction to the Duffys, as owners of Planetwhite and the company which owned the adjacent lands);

(vii) Planetwhite were registered as the full owner of the Lands (Folio GY97199F) in the Land Registry on 26 November 2019;

(vii) Despite demands, the Hogans refused to give up possession and have continued to use the Lands for, inter alia, stabling and exercising horses.

(viii) Mrs. Hogan gave no evidence supportive of any right to be on the Lands. She did not claim she had any license or lease or other interest in the Lands.

(ix) Mr. Hogan, the previous registered owner decided not to give evidence.

(x) There was no evidence of any fraud or mistake and none was pleaded.

26. I am satisfied that section 31(1) of the Registration of Title Act, 1964 applies and, as Planetwhite is registered as the full legal owner, this is conclusive evidence that Planetwhite is the full legal owner of the Lands.

27. The defence filed pleaded as its starting point that the plaintiff was not the lawful owner and was not entitled to possession. The evidence of the Folio establishes that the plaintiff is the lawful owner and section 31 precludes that being looked behind except in cases of fraud or mistake of which there is no evidence and none was pleaded.

28. Section 31(1) has been described as an “iron curtain” against challenges to ownership; per the Court of Appeal in Tanager v Kane [2018] IECA 352; see the judgment of Baker J. at para.s 30 and 31:-

The seminal modern Irish text on the practice and principles governing registered title, McAllister, Registration of Title in Ireland (Incorporated Council of Law Reporting for Ireland, 1973) observes that s. 31(1) of the 1964 Act establishes the Register as an ‘iron curtain’ behind which it is neither appropriate nor necessary to penetrate. He quotes a passage from Watson L.J. in a Privy Council appeal from the Supreme Court of Victoria, Canada, in Gibbs v. Messer [1891] AC 248, at p. 254:

‘The object [of the registration of title] is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validity.’

McAllister also notes the ‘curative effect’ of registration, described in Curtis and Ruoff, The Law and Practice of Registered Conveyance (2nd ed., Stevens & Sons, 1965):

‘Past defects of title no longer vex each successive owner after the date of first registration with absolute title because henceforth, in the case of freehold land, the proprietor is deemed to have vested in him the fee simple absolute in possession subject to the incumbrances that appear on the register or title and subject to those well-recognised incumbrances, interests, rights and powers known as overriding interests, which do not necessarily always appear on the register, but free from all other estates and interests whatsoever. These are not idle words. The whole essence of the matter is that after the date of first registration of absolute title it is neither necessary or permissible to go behind the impenetrable curtain of the register.’

29. Section 31 is not limited by its provisions to an owner who is in possession. In addition, that argument was not supported by case law. After all, while the context was different, Tanager involved a case of a claim for possession by a plaintiff not in possession as against an occupier who was living in the property. Even so, while an owner not in possession might face a claim from an occupier based on adverse possession that is not the situation here.

30. In addition, I am satisfied that in this case, the position under section 31(1) is not affected by sections 52 or 72(1)(j) of the 1964 Act. Firstly, the Defence contains no plea of any such burden. More importantly however, while the Hogans are in occupation of the Lands they have no “rights” of occupation and none, in that sense, were contended for in evidence.

There was no evidence of any right of occupation on the part of the Hogans. They are not the owners of the Lands and have no permission from the owner to be using the Lands.

31. Turning then to the provision itself. Section 72(1)(j) is not designed to create a legal right of occupation where none exists. It is designed to protect an existing legal right of occupation; for example a lease or licensee. That is obvious both from the wording of section 72(1)(j) which uses the word “rights” and from the immediate statutory context. A full reading of the various burdens recognised in the balance of section 72(1) makes this clear:-

“72.—(1) Subject to subsection (2), all registered land shall be subject to such of the following burdens as for the time being affect the land, whether those burdens are or are not registered, namely—

(a) estate duty, succession duty, former crown rents, tithe rentcharges and payments in lieu of tithe or tithe rentcharge;

(b) land improvement charges and drainage charges;

(c) annuities or rentcharges for the repayment of advances made under the provisions of any of the Land Purchase Acts on account of purchase money;

(d) rights of the Land Commission or of any person under a vesting order, vesting fiat, final list or transfer order made or published under the Land Purchase Acts;

(e) rights of the Land Commission upon the execution of an order for possession issued under section 37 of the Land Act, 1927;

(f) rights of the public or of any class of the public;

(g) customary rights, franchises and liabilities arising from tenure;

(h) easements and profits à prendre, unless they are respectively created by express grant or reservation after the first registration of the land;

(i) tenancies created for any term not exceeding twenty-one years or for any less estate or interest, in cases where there is an occupation under such tenancies;

(j) the rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where, upon enquiry made of such person, the rights are not disclosed;

(k) in the case of land registered with a possessory, qualified or good leasehold title, all rights excepted from the effect of registration;

(l) a perpetual yearly rent (in this section referred to as the superior rent) which is superior to another such rent (in this section referred to as the registered rent)

registered as a burden on registered land and which, as between the said registered land and the registered rent, is primarily payable out of the registered rent in exoneration of such land;

(m) the covenants and conditions contained in the deed or other document creating the superior rent, in so far as those covenants and conditions affect such land;

(n) a purchase annuity payable in respect of a cottage which is the subject of a vesting order under the Labourers Act, 1936;

(o) restrictions imposed by section 21 of the Labourers Act, 1936 , on the mortgaging or charging of cottages purchased under that Act;

(p) rights acquired or in course of being acquired under the Statute of Limitations, 1957 ;

(q) burdens to which section 59 or 73 applies.”

32. Finally, this argument falls when held up to scrutiny against the light of the purpose of the provision. If the defendants somewhat diffuse and unclear complaints about the transfer from Ulster Bank to PAL and then about the receiver and then the sale to Planetwhite were said to be the source of the “rights” then such a circular argument would undo the whole purpose of section 31 in so far as it protects a purchaser such as Planetwhite. As stated above in Tanager, registration has a “curative effect”.

33. It is clear that PAL had an entitlement to sell the Lands. The terms of the Deed of Mortgage refer to the mortgagee’s statutory Power of Sale (see clauses 8 and 11 in particular) and this power of sale and section 19 of the 1881 Act is not excluded; see clause 8.

34. The evidence establishes that there was a loan to the Hogans and a mortgage providing the Lands as security. The Hogans knew that if they defaulted on the loan that they could lose the Lands.

35. Next, the Deed of Mortgage agreed to by the Hogans entitled Ulster Bank to transfer the mortgage; see clauses 17 and 18. The evidence indicates this was done in February, 2015 when there was a transfer from Ulster Bank to PAL.

36. There was default and a demand for repayment and no repayment.

37. The evidence demonstrates that PAL then sold the property (they had the power to do so as described earlier) to Planetwhite who paid good consideration and became the registered full legal owner.

38. As to the arguments about the receiver, if the receiver had no power to enter into the initial contract for sale I am satisfied that this is cured by the Deed of Transfer which was entered into between PAL and Planetwhite.

39. In any event, any issue there does not create a problem for Planetwhite, the purchaser and now full owner; see sections 21(1) and (2) of the Conveyancing Act, 1881 which provide:-

“21.—(1.) A mortgagee exercising the power of sale conferred by this Act shall have power, by deed, to convey the property sold, for such estate and interest therein as is the subject of the mortgage, freed from all estates, interests, and rights to which the mortgage has priority, but subject to all estates, interests, and rights which have priority to the mortgage; except that, in the case of copyhold or customary land, the legal right to admittance shall not pass by a deed under this section, unless the deed is sufficient otherwise by law, or is sufficient by custom, in that behalf.

(2.) Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.”

(underlined for emphasis).

40. Therefore the Hogans, if there was any problem and the evidence does not suggest such, would have their remedy in damages against the “person exercising the power” of sale, not as against Planetwhite.

41. Finally, Fannon is not central as Planetwhite did not seek to rely on section 31 to establish the “terms” of any transfer.

VI. FORM OF ORDER

42. Accordingly, Planetwhite is entitled to possession of the Lands and the necessary orders to restrain the Hogans from trespassing on the Lands or interfering in any way with the plaintiff’s use of the Lands.

43. I propose therefore to grant the following Declaration and make the following Orders:

(i) A Declaration that Planetwhite Limited is entitled to the peaceful and uninterrupted use and enjoyment of the lands contained in Folio GY97199F;

(ii) An Order restraining the first and second named Defendants, their servants or agents, and any persons having notice of this order, from trespassing on, or occupying or using howsoever, the lands comprised in Folio GY97199F; and

(iii) An Order directing the first and second named Defendants to remove any livestock, including horses, from the lands comprised in Folio GY97199F. I will hear from the parties as to an appropriate time period to facilitate this.

44. I will hear from the parties as to any further reliefs and as to costs.