Court of Appeal dismisses appeals by mortgagors evicted from property, ruling they have no right to re-enter.

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THE COURT OF APPEAL

CIVIL

Appeal Numbers: 2025 292

2025 293

Binchy J. Allen J. Collins J.

BETWEEN

KBC BANK NV ACTING THROUGH KBC BANK NV DUBLIN

PLAINTIFF

AND

GORDON SMITH, LINDA HUSSEY, BEN GILROY

AND

PERSONS UNKNOWN OCCUPYING THE PREMISES AT 37 HAMLET AVENUE,

CHIEFTAINS WAY, BALBRIGGAN, COUNTY DUBLIN

DEFENDANTS

JUDGMENT of Mr. Justice Allen delivered on the 11th May, 2026

Introduction

1. This is a judgment on two appeals by the first and second defendants against the judgment of the High Court (Cahill J.) delivered on 2nd September, 2025 ([2025] IEHC 481) and two consequent orders made on 29th October, 2025 which brought to an end an action to which – the High Court found – the defendants had no defence but – as the plaintiff contended – the purpose of which had been achieved.

2. The grounds of appeal against one of the orders ran to ten pages and the other to four pages. The appellants’ combined written submissions ran to 32 pages and the books of appeal to three boxes. The core issue, however – as the High Court judgment made clear – was net. It is whether a mortgagor who defaults on his obligations and is lawfully evicted from the property by which the loan was secured is entitled to – or, perhaps, strictly speaking, has an arguable entitlement to – break back into it.

3. The answer, in one word, is no.

Background

4. On 22nd April, 2005 IIB Homeloans Limited agreed to advance to the first defendant a loan of €200,000, the repayment of which was to be secured by a charge over a property which the first defendant wished to buy at 37 Hamlet Avenue, Chieftains Way, Balbriggan, County Dublin. The first defendant drew down the loan and executed the charge, which was duly registered as a burden on the Folio.

5. Following the advance, IIB Homeloans Limited converted into an unlimited company; then changed its name to KBC Mortgage Bank; and then transferred its business to KBC Bank Ireland plc.

6. The first defendant failed to meet his obligations and on 1st May, 2014 KBC Bank Ireland plc issued a Civil Bill for Possession. On 29th April, 2016 the Circuit Court made an order for possession, and that was duly executed by the Dublin County sheriff on the morning of 26th February, 2018.

7. The affidavits filed in the High Court in support of the applications which led to the orders under appeal explained the devolution of the loan and security in detail, including that the transfer of the business of KBC Mortgage Bank to KBC Bank Ireland plc was effected by a Scheme for Transfer which had been approved by the Minister for Finance by the Central Bank Act 1971 (Approval of Scheme of KBC Mortgage Bank and KBC Bank Ireland plc) Order, 2009 (S.I. No. 125 of 2009). The affidavits also detailed the engagement with the first defendant in relation to the default which included – as was à la mode at the time among defaulting borrowers– that the security had been magicked beyond the reach of the mortgagee. It is understandable that the applicant wished to give the High Court the full picture but strictly speaking it was unnecessary to explain precisely how the Circuit Court order had come to be made. It did not matter that the first defendant’s sorcery was baseless. The order of the Circuit Court – after the time for any appeal had expired – was final and conclusive as to the then plaintiff’s entitlement to possession of the property. It disposed not only of such objection as may have been made to the making of the order but of all other issues and arguments – good or bad – as might have been raised in opposition to the claim.

8. The lynchpin of the convoluted argument that the defendant advanced in the High Court and again on this appeal was that it had not been proved that the Scheme of Transfer approved by S.I. No. 125 of 2009 was effective to transfer his loan to KBC Bank Ireland plc. The plaintiff took up the challenge of demonstrating that it had, and thereafter dismantling the defendant’s submission, but its primary argument was that the defendant was not entitled to go behind the Circuit Court order. If, legally, the plaintiff was entitled to have nailed its colours to the mast, it is understandable that it wanted to forestall – to the extent that it could

– any suggestion that it was being less than entirely forthcoming. In the event, as I will come to, the plaintiff found itself confronted with an assertion of fraud.

9. The defendant had a right of appeal against the Circuit Court order. He did not appeal. The evidence was that, rather than appealing, the defendant applied to the High Court for leave to apply by way of judicial review for an order quashing the Circuit Court order. That application was refused by Humphreys J. The defendant filed a notice of appeal to this Court but failed to prosecute his appeal, which, inevitably, was dismissed. At the hearing of this appeal there was a certain amount of debate about why the defendant did not appeal against the Circuit Court order, which in turn prompted a certain amount of debate as to whether the reasons on which the defendant relied for not appealing were good or bad. But the beginning and the end of it is that the defendant did not appeal

10. As I have said, the Circuit Court order for possession was executed by the Dublin County sheriff on the morning of 26th February, 2018 who – as authorised and required by the execution order – took possession of the property and delivered same to KBC Bank Ireland plc, which secured the property. On the evening of the same day, a mob which included the third defendant broke into the property and reinstalled the first defendant and the second defendant, his wife.

The High Court action

11. By plenary summons issued on 27th February, 2018 KBC Bank Ireland plc commenced High Court proceedings to recover possession of the property. It was shown to the High Court on the same day that the position was so clear as to justify the making of an interim mandatory order and Baker J. ordered that the defendants and each of them and all persons having notice of the making of the order do forthwith vacate and deliver up possession of the property to the plaintiff. That order was confirmed on an interlocutory basis – again by Baker J. – on 15th March, 2018. An application by the third defendant to this Court for a stay of the interlocutory order was refused on 23rd March, 2018.

12. By notice of motion issued on 20th April, 2018 – by leave of Baker J. granted on 18th April, 2018 – the plaintiff applied for orders of attachment and committal of the first and second defendants by reason of their failure to comply with the interim order. An order for attachment was made by O’Connor J. on 26th April, 2018, returnable for 1st May, 2018. On 1st May, 2018 O’Connor J. ordered that the first and second defendants be committed to Mountjoy prison but later in the day set aside the committal orders on the first and second defendants’ undertaking not to go near the property or re-enter it.

13. The plaintiff recovered possession of the property which was eventually sold on 25th January, 2019. That should have been the end of the matter but unfortunately was not.

The pleadings

14. Between the time when the first and second defendants purged their contempt and the sale of the property, a statement of claim had been delivered on 11th July, 2018 and a defence on 6th August, 2018.

15. The statement of claim was a careful narrative of the borrowing, the security, the default, the Circuit Court proceedings, the Circuit Court order, the judicial review application and appeal, the issuing and execution of the order of possession, the forcible entry of the property by the mob, and the orders of Baker J. and O’Connor J. The plaintiff – it was said – had obtained lawful possession of the property from the sheriff and was entitled to a permanent injunction. There was a claim for damages for trespass, the particulars of which were to be ascertained.

16. The defence – as the High Court judge found – was replete with nonsense. The defendants denied that the property was a property: it was, they contended a dwelling. The first defendant denied that he resided at the property: he was, he contended, one of the people of éire (sic.) who dwelt in it. The plaintiff – it was said – had caused loss to the first and second defendants by deception and committed a criminal offence by misleading the court by their use of such terms as “Property”, “Resided” and “Resident.” It was denied that the second defendant was the first defendant’s spouse: she was, she said, his wife. And so on.

17. The defence denied the advance to the first defendant, the charge, the existence or validity of the Circuit Court order and the issue of any valid execution order. Alternatively, it was pleaded that any valid execution order related to a property and not a dwelling.

18. Significantly, the execution of the order of possession by the sheriff was admitted. The defence challenged the authority of the sheriff to remove a family from their dwelling, asserting that he was an agent of the Crown (city of London) who “did commit treason against the people of éire.” The defence pleaded, at para. 20, that:- “20. If any alleged sheriff attended at any property, then he was in the wrong place when he attended at the dwelling of Gordon, Linda and their son. If Gordon, Linda and their son were asked to vacate a property then clearly this caused confusion to the Smith family, as they were strangers to any such property and only had a dwelling. It is admitted that, the alleged sheriff and any unlawful agents of his alleged office did use force against the people known as the Smith family.”

19. To the extent that this makes any sense, the first and second defendants admit that they were put out by the sheriff.

20. Along the way there were pleas – at para. 7 – that “… notwithstanding the invalidity of the said mortgage/charge, the rights contained in that mortgage were transferred to one of the Phoenix Funding Companies before the plaintiff brought any proceedings against Gordon” and – at para. 31 – that “as the plaintiff held an invalid mortgage, sold same to a Phoenix funding company …”. As the affidavits filed in the High Court showed, what was behind this was that the first defendant’s mortgage was one of many which were securitised by a mortgage sale agreement dated 16th June, 2008 between IIB Homeloans and a company called Phoenix 2 Funding Limited.

21. This plea was made before the defendants even knew which of the Phoenix Funding companies was involved or had sight of the mortgage sale agreement. As with the plea that the 2009 Scheme of Transfer did not include the first defendant’s loan, the plaintiff took up the challenge of demonstrating that the securitisation of its book did not affect its entitlement to issue the Circuit Court proceedings, have the order for possession executed, and sell the security.

22. The mortgage sale agreement between IIB Homeloans and Phoenix Funding 2 Limited was exhibited in support of the High Court applications which led to the orders under appeal. The mortgage sale agreement showed a sale of the beneficial interest in the loan book and security, with a right on the part of the transferee to call for an assignment of the legal interest. In the teeth of what the agreement said, the first defendant insisted that it was an assignment of the legal as well as the beneficial interest, alternatively that it had not been shown – which it had – that the transferee never called for a transfer of the legal interest. Confronted at the hearing of the appeal by counsel for the respondent with a line of established authority against him – Wellstead v. Judge Michael White [2011] IEHC 438, Pepper Finance Corporation v. Jenkins [2018] IEHC 485 and Pepper Finance Corporation v. Egan [2025] IEHC 31 – the best that the first defendant could come up with was a bald assertion that Wellstead was bad law.

23. Again, as will have been seen, the respondent was prepared to engage with and dismantle the substance of the defendant’s submission but its primary position was that any challenge to the entitlement of KBC Bank Ireland plc to have obtained the Circuit Court order for possession was an impermissible collateral attack on a final order of a court of competent jurisdiction.

24. Finally, the defence pleaded that KBC Bank Ireland plc had misled the Circuit Court by referring to the second defendant as Linda Hussey rather than “Gordon’s wife Linda” in order to mislead the court into thinking that she had no equitable interest and to defeat her rights by way of injunction. The fact is that the first and second defendants were married soon enough after the first defendant bought the property. On the motions which led to the orders the subject of the appeals, it was candidly admitted by the plaintiff that an affidavit had been filed in the Circuit Court proceedings by which it was averred that the first defendant was at that time unmarried, and that this was wrong. However, it was uncontested that the second defendant was in fact on notice of the Circuit Court proceedings and had not raised any issue. That apart, the inferential suggestion that the second defendant’s status as a wife and mother gave rise to an equitable interest in what became the family home was plainly wrong; and any equitable interest that the second defendant might have acquired by contributing to the mortgage repayments for as long as they were made was necessarily subordinate to the legal interest of KBC Bank Ireland plc.

25. Again, the engagement with the substance of the plea was subject to the respondent’s primary submission that the defendants were not entitled to mount a belated collateral challenge to the Circuit Court order. By the way, the fact that the challenge was belated is irrelevant. In principle, a timely collateral attack on a final court order is no less impermissible that a belated collateral attack.

The High Court motions

26. Once the property had been sold, the High Court proceedings had – as far as the plaintiff was concerned – served their purpose. The defendants’ trespass had possibly delayed the sale by some months but whether it was because the market had improved in those months or because the view was taken that the defendants would be no mark, the plaintiff had no interest in pursuing the claim for damages. What appears to have prompted the motions which gave rise to the orders under appeal was a request by the defendants for voluntary discovery made on 20th June, 2022.

27. There were two further developments thereafter. On 29th September, 2023 KBC Bank Ireland plc completed a sale to Cabot Financial (Ireland) Limited of its interest in the rump of the loan and on 1st December, 2023 – following its withdrawal from the Irish market – it completed a transfer to KBC Bank NV of substantially all of its remaining assets, liabilities and obligations, including its interest in these proceedings. That transfer had been approved by the Minister for Finance by the Central Bank Act, 1971 (Approval of Scheme of Transfer Between KBC Bank Ireland Public Limited Company and KBC Bank NV) Order, 2023 (S.I. No. 447 of 2023).

28. The defendants’ request for discovery conjured the spectre of a protracted battle over the relevance and necessity of the documents sought by the defendants, perhaps followed by a trial of the plenary proceedings on oral evidence. If the plaintiff was confident that it would prevail, the resurrection of the High Court action would expose it to a significant liability for additional costs which – all the appearances are – it would have no prospect of recovering from the defendants.

29. It may very well be that until then it was overlooked, but it was then recognised that there was also – on the plaintiff’s side – a significant loose end. The interim and interlocutory orders of Baker J. had been obtained on the plaintiff’s undertaking to abide any order which the High Court might thereafter make as to damages. If it was impossible to see what conceivable exposure there could have been on that undertaking, it was recognised as a serious matter. Although the plaintiff had not after receiving the defendants’ defence taken any further proceeding in the action, it could not simply discontinue the action but would need to apply to the High Court to be released from its undertaking.

30. By notice of motion issued on 19th October, 2023 KBC Bank Ireland plc issued what has been referred to for convenience as the Strike Out Motion. That was a motion by which it sought either summary judgment or an order striking out the defence. The premise of that motion was that there was no live issue remaining between the plaintiff and the defendants, save the undertaking as to damages, and that the defendants had no defence to the action.

31. The Scheme of Transfer to KBC Bank NV took effect on 1st January, 2024. The effect of this was to transfer to KBC Bank NV any liability that KBC Bank Ireland plc might have had on the undertakings as to damages. The plaintiff’s solicitors were confident that the combined effect of the 2023 Transfer Order and s. 41 of the Central Bank Act, 1971 was that on the transfer date – by operation of law – KBC Bank NV had been substituted as plaintiff in the place of KBC Bank Ireland plc. They had identified clear authority for that in the judgment of the Supreme Court in First Active plc v. Cunningham [2018] 2 I.R. 300. The plaintiff’s solicitors sought the defendants’ consent to the substitution of the plaintiff – or, strictly speaking, their acknowledgement that the plaintiff had been substituted – but that was not forthcoming. To bring the question before the High Court, the plaintiff issued a motion on 8th March, seeking either an order pursuant to O. 15, rr. 14 and 14 substituting KBC Bank NV Dublin Branch or a declaration that KBC Bank NV Dublin had been substituted by operation of law. For convenience this motion has been described as the Substitution Motion.

Appeal 2025 293 – the Substitution Order

32. The High Court judge dealt with the Substitution Motion at paras. 30 to 48. Having summarised the positions of the plaintiff and the defendants, the judge analysed the relevant provisions of the 1971 Act and of the Scheme of Transfer before concluding that the effect of s. 41 of the 1971 Act is automatic. Her analysis, she said, was confirmed by the judgment of McKechnie J. (McMenamin and Dunne JJ. concurring) in Cunningham.

33. The defendants’ grounds of appeal do not engage at all with the judge’s analysis, reasoning or conclusion. They betray a complete failure to understand the nature of the order sought and made.

34. For example – and it is not necessary that I should attempt to unravel all of the grounds – it is said that the KBC Bank Ireland plc never held legal title to the charge. Leaving aside the fact that this assertion is demonstrably wrong, it was no part of the Substitution Motion (or the Strike Out motion) that the legal title to the charge was transferred to KBC Bank NV. The charge was spent on the sale of the property in 2019 and the rump of the loan – for whatever that might have been worth – was transferred to Cabot before the effective date transfer to KBC Bank NV. Otherwise the grounds are littered with outrageous and entirely baseless allegations of fraud and a suggestion that the defendants’ outstanding discovery motions and interrogatories rendered the substitution premature. Again leaving aside the fact that the assertions are demonstrably false, all of the grounds fail to recognise that the finding and conclusion of the judge was that the substitution was not a matter for the High Court but took effect as a matter of law.

35. I think that at the hearing of the appeal the first defendant was finally brought to understand that since the effect of the Transfer Order and the 1971 Act was to transfer to KBC Bank NV any liability – if any – which KBC Bank Ireland plc might theretofore have had to him on foot of the undertaking as to damages it was the correct party and that – contrary to his initial submission – KBC Bank NV clearly had standing to deal with the action for which it would have to foot any bill. But whether he understood it or not, it is so.

36. It follows that the appeal against the order made on the Substitution Motion (2025 293) must be dismissed.

2025 292 The Strike Out Order

37. Before dealing with the order made on the Strike Out motion, I should note that on 2nd December, 2024 the defendants issued a notice of motion by which they sought leave to deliver an amended defence and counterclaim. By then the hearing date for the plaintiff’s motions on 27th February, 2025 had presumably already been fixed. In any event, while the defendants’ motion to amend was not formally before the High Court, in accordance with a long line of established authority – the judge mentioned Fulham v. Chadwicks Limited [2021] IECA 72 and McAndrew v. Launceston Finance Property DAC [2023] IECA 43 but it is Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425 that immediately comes to mind – the judge, in her assessment of whether the defendants’ defence was bound to fail, took account of the prospect that the defence as pleaded might be saved by the proposed amendments.

38. The ratio of the High Court judgment – at para. 6 – was that the defence as pleaded, and the defence as proposed to be amended, disclosed no reasonable defence, were bound to fail, and were an abuse of process. The analysis and reasoning are set out at paras. 49 to 83. The judge’s core finding – at para. 58 – was that the then plaintiff’s right to possession of the property, based on its rights under the mortgage and loan, was conclusively and finally determined by the Circuit Court in 2016 in making the order for possession, and – at para. 68

– that if the defendants wanted to challenge the possession order on any of the grounds advanced in answer to the trespass action the correct (and only) course of action would have been to advance their objections before the possession order was made, or to appeal that order. For the reasons given in the course of my analysis of the defence as delivered, the judge, in my view, was absolutely correct.

39. The proposed amended defence and counterclaim ran to 37 pages. It would have repeated the defendants’ attempt to impugn the entitlement of KBC Bank Ireland plc to have sought and obtained the Circuit Court order for possession, mostly by reference to the securitisation agreement the effect of which – the defendants would have pleaded – was that KBC Bank Ireland plc was merely a servicing agent. Similarly, the draft amended defence would have reiterated the impermissible challenge to the validity of the Circuit Court order. Slightly startlingly, the defendants would have pleaded that they were entitled to have reentered “their dwelling” “because of reasonable lawful excuse” including that “the Smith family are superior to all positive law.”

40. The proposed amended defence and counterclaim was – as the judge said – replete with offensive, irrelevant allegations against numerous individuals and misconceived complaints. The fundamental thesis of the proposed counterclaim was that the legal as well as the beneficial interest in the first defendant’s loan and mortgage had been transferred to Phoenix 2 Fundings and that thereafter, first IIB Homeloans and later KBC Bank Ireland plc were “mortgage managers for an undisclosed principal.” The proposed counterclaim would have introduced a series of issues in relation to the alleged rejection or acceptance of a series of “official offers” in 2011 and 2015 – sent by registered post, and with postal orders stapled to them – to pay €50, then €10, and then €15 per week “as satisfaction on all account obligations.” What precisely it was that the defendants proposed to plead was far from clear but whatever it was was directed to the question of arrears, and so to the plaintiffs entitlement to have sought and obtained the Circuit Court order for possession, and so – impermissibly – to the validity or correctness of the order for possession. The premise of the complaint which the defendants would have made at para. 67 of the proposed amended defence and counterclaim as to the manner in which the order for possession was executed by the Dublin County sheriff on 26th February, 2018 was that the order for possession had in fact been executed by the Dublin County sheriff on 26th February, 2018.

41. The High Court judge considered the proposed amended defence and counterclaim and concluded that it was an attempt to launch a new challenge to the possession order under the guise of a defence and counterclaim to the plaintiff’s trespass proceedings. While strictly speaking the proposed defence and counterclaim may have been partly an attempt to launch a new challenge and partly a reiteration of the defence as delivered, nevertheless the judge was quite correct in her conclusion that it was an impermissible attack on the possession order. As the judge put it at para. 75, all of the arguments sought to be advanced by the first defendant, and the draft amended pleadings, were an abuse of process on that ground alone.

42. I should say at this point that while the statement of claim was very clear as to the case which was made, there was some looseness of language in the submissions on behalf of the plaintiff which crept into the judgment. Specifically, at para. 53 – in listing the important facts – it was suggested at sub-para. (d) that attempts to enforce the possession order by entry of the sheriff were unsuccessful and at sub-para. (e) that the High Court plenary proceedings were issued to secure the enforcement of the possession order. Later, at para. 64, the judgment suggests that possession of the property was ultimately recovered when the first and second defendants purged their contempt. It is important to emphasise that the order for possession was successfully executed and that the High Court proceedings were issued to restore KBC Bank Ireland plc to possession after it had been unlawfully dispossessed by the defendants.

43. The High Court judgment shows – at para. 73 – that the primary argument made by the first defendant was that IIB Homeloans had transferred the full legal and equitable interest in the loan and charge to Phoenix 2 Funding Limited. That argument, as was demonstrated by the plaintiff, was clearly based on a misunderstanding of the legal effect of the securitisation documents and the law and plainly wrong: but more fundamentally – as the judge found – the first defendant was effectively trying to launch a new challenge to the possession order under the guise of a proposed defence and counterclaim to the plenary action. At the hearing of the appeal the first defendant sought to make much of the fact that the High Court proceedings were separate to the Circuit Court proceedings and at one stage appeared to be trying to make a virtue of the fact that the arguments he sought to make had not previously been adjudicated upon. In doing so he either failed to understand or sought to deliberately disregard the fundamental principle that there should be finality in litigation.

44. The ten pages of grounds of appeal are a jumble. The defendants are not entitled to expect, and it is not necessary that I should, go through the line by line. There are a number of themes.

45. The first theme is that the judge erred in the interpretation of the defence as a collateral attack on the Circuit Court order. That is plainly wrong. In the same theme the defendants appeal to the principle of audi alteram partem insisting that they are entitled to have been heard in relation to what they contend is adverse material – including material which they have sought by way of discovery but which has not been provided. The proposition that the documents which the defendants have sought but have not been provided is adverse material is entirely speculative. More to the point, the argument is plainly at variance with the prohibition of collateral attack.

46. This disposes of the arguments based on the mistaken averment at the time of the Circuit Court proceedings that the first defendant was unmarried, that the mortgage had been redeemed or restructured the “official offers” and all the other exotica which was said to have predated the making of the Circuit Court order for possession.

47. The second theme is that the defence was a defence of fraud. Such limited particulars of the alleged fraud as are advanced depend on a misconstruction of the securitisation documents which the defendants have seen and the suggestion that the fraud cannot be fully particularised until the defendants have discovery the additional documents which they have sought goes to show that the bald pleas of fraud are speculative and reckless.

48. Not for the first time, these defendants appeal to the dictum in Takhar v. Gracefield Developments [2019] UKSC 13 – as if it were a charm – that fraud unravels everything. As usual, the proposition is that a bare assertion of fraud entitles the defendants to ask the court to reopen issues which have been finally and conclusively determined. This is misconceived.

49. At the hearing of the appeal, counsel for the respondent – quite correctly – accepted that a court order which would otherwise be binding and conclusive may be set aside on the grounds of fraud but submitted that the law is very clear as to the circumstances in which and the means by which that may be done. Counsel did not cavil with anything said by the UK Supreme Court in Takhar but submitted that there was – as there is – plenty of Irish authority on the subject. He referred to the judgment of the Supreme Court in Kenny v. Trinity College Dublin [2008] IESC 18.

50. Kenny – as counsel submitted – is authority for two propositions. The first is that in order to ground an action to set aside a judgment, the plaintiff must allege fraud in the true sense: that is, deliberate and purposeful dishonesty, knowing and intentional deceit of the court. In addition, the fraud alleged must be such as to affect the impugned decision in a fundamental way. For the avoidance of doubt, this is not a formula that might be used to dress up a bare allegation but a substantive requirement. The second proposition – new, if he is to be believed, to the first defendant, but established for a century in England and long accepted in this jurisdiction – is that the proper method of impeaching a judgment or order on the ground of fraud is by an action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof which such a charge requires. See Jonesco v. Beard [1930] 1 A.C. 298, cited with approval by Barrington J. in Waite v. House of Spring Gardens Ltd. (Unreported, High Court, 26th June, 1985), which were cited with approval in Kenny.

51. The fact is that the defendants asserted fraud by way of a purported defence to a trespass action and have not brought an action to set aside the Circuit Court order which they would collaterally impugn. That apart, I accept unreservedly counsel’s submission that the asserted fraud – which has not been properly pleaded – to the extent that it can be gleaned from the first defendant’s affidavits and submissions, comes nowhere near meeting the threshold. At its height, the assertion is based on a misunderstanding of the securitisation documents and the law and is plainly wrong.

52. The defendants’ ninth ground of appeal is as daft as it is ingenious. It is this. On 19th July, 2016 the first defendant opened his ex parte application for leave to apply to the High Court by way of judicial review for an order of certiorari quashing the order of the Circuit Court. To hold the pass while he considered the leave application, Humphreys J. put a stay on the execution of the order for possession until 3rd October, 2016 “or further order.” I consider that it must have been obvious to anyone with a titter of wit that what the judge contemplated was that there might be an application in the long vacation to lift the stay but the defendants’ contention – upwards of nine years after Humphreys J. refused leave on 24th January, 2017 on the grounds that the first defendant had established no arguable ground for judicial review – is that there was no “further order” lifting the stay. Never mind that it was not pleaded, and mindful of the first defendant’s entitlement to be treated with respect and courtesy, the proposition that the plaintiff was obliged to go back to Humphreys J. to ask that the stay should be lifted is nothing short of ridiculous.

53. At the hearing of the appeal the first defendant sought first to canvas – by way of, he suggested, a housekeeping matter – the fact that he had not been provided with a copy of a mortgage sale management agency agreement and a “true sale opinion” which – he said – he had asked for but the plaintiff had refused to provide. One of the three boxes of papers lodged as purportedly comprising the books of appeal was stuffed to bursting point with four folders, each of which comprised the papers filed on four separate interlocutory motions filed on the appeal and all of which had been refused by the Court of Appeal list judge. One of those motions included a motion for discovery of the alleged mortgage sale agency management agreement and the true sale opinion. All of them are the subject of leave applications for leave to appeal to the Supreme Court. The first defendant’s attempt to reopen the issue of his entitlement to those documents by way of a “housekeeping matter” was – as he must well have known – an abuse of process.

54. At the hearing of the appeal, the first defendant had a lot to say about the effect and – as he would contend – the shortcomings in the 2009 and 2023 Schemes of Transfer, which I have dealt with already. He suggested that a later decision of this Court established that he had or might have had a point to make in his judicial review proceedings as to the power of the County Registrar to have conducted an unfair terms review of the loan before making the order for possession. Never mind that this was not among his grounds of appeal, it was, at the same time, an attempted collateral attack on the Circuit Court order for possession and on the judgment and order of Humphreys J. refusing the judicial review leave application, the first defendant’s appeal against which was dismissed by this Court.

55. As to the bald assertions of fraud, the first defendant more or less conceded that it had not been properly particularised but contended that he could not do so because – he said – he had not been provided with the discovery which he needed to be able to do so. The plaintiff’s “concealment” he suggested, “is causing manufactured ignorance”. In other words, he more or less acknowledged that there was no basis for his bald assertions of fraud but he hoped by fishing to be able to first of all particularise and then substantiate it.

56. As was the defence which the defendants sought to mount to the High Court action, so was the appeal, a transparent abuse of process. The appeal against the order made on the Strike Out motion must also be dismissed.

Conclusion

57. For the reasons given, I would dismiss both appeals and affirm the orders of the High Court.

58. Having been entirely successful in opposing the appeals, the respondent is presumptively entitled to an order for its costs. I propose that the defendants should have fourteen days from the date of delivery of this judgment to file and serve short written submissions – limited to 1,500 words – setting out any argument they would make as to why the respondent should not have an order for its costs. Any such submission must be directed solely to the question of costs. Thereafter – if the respondent wishes to press its application for costs – the respondent will have fourteen days to respond, similarly so limited and directed.

59. As this judgment is being delivered electronically Binchy and Collins JJ. have authorised me to say that they agree with it and with the orders proposed.