High Court grants possession order to mortgagee against defaulting defendants in summary possession proceedings.

APPROVED

REDACTED

AN ARD-CHÚIRT

THE HIGH COURT

[2026] IEHC 26

Record No. 2025/94CA

BETWEEN/

MARS CAPITAL FINANCE IRELAND DAC

PLAINTIFF

-AND-

DOLORES O’CONNOR AND DAVID O’SHEA

DEFENDANTS

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 14th day of January 2026

INTRODUCTION

Preliminary

1. This is an appeal from the Order of the Circuit Court (His Honour Judge John O’Connor) dated 18th March 2025, whereby the Plaintiff (the Appellant) seeks an order directing the Defendants to deliver up possession of the property described in the schedule of the Civil Bill and Special Indorsement of Claim (date stamped 16th June 2022) as the property at 72 Parkmore Drive, together with the former laneway lying between numbers 70 and 72 Parkmore Drive, Terenure, Dublin 6W (“the property”).

2. By virtue of the Courts of Justice Act 1936, the appeal is in the form of a de novo rehearing.

3. The evidence before me is that the property is occupied by the Defendants as their principal private residence pursuant to section 3 of the Land and Conveyancing Law Reform Act 2013 (“the 2013 Act”). Section 3(1) of the 2013 Act applies section 3 to land which is the principal private residence of: (a) the mortgagor of the land concerned; or (b) a person without whose consent a conveyance of that land would be void by reason of (i) the Family Home Protection Act 1976, or (ii) the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, and the mortgage concerned was created prior to 1st December 2009.

4. In summary, the Plaintiff’s application relates to the Defendants’ default in making repayments in relation to two specific loan agreements, which loan periods had also expired. Despite demands made, the Defendants failed to pay the said sums due and the Plaintiff’s power of sale, pursuant to the relevant Mortgage/Charge arose and became exercisable and notwithstanding a request through the Plaintiff’s solicitors on 18th May 2022 seeking possession of the property, the Defendants refused to deliver up possession.

THE EVIDENCE

The Plaintiff’s ownership of the two loans

5. The Plaintiff has produced evidence in a number of affidavits of Ronan Hopkins, Manager for the Plaintiff, which confirms that it is the owner of the two loans in question.

6. In this regard, on 1st October 2020, AIB Mortgage Bank had changed its name to AIB Mortgage Bank u.c. On 30th April 2021 Allied Irish Banks, p.l.c., AIB Mortgage Bank u.c., EBS d.a.c., Haven Mortgages Limited and AIB Group (UK) p.l.c. executed a Deed of Transfer (“the Transfer Deed”) whereby, inter alia, all rights, title interest, estate, benefit and entitlement (past, present and future) in the outstanding loans advanced to the Defendants and all underlying loan documents, including the Facilities, were granted, conveyed, assigned, confirmed, transferred and assured to the Plaintiff (“the Transfer”).

7. On 30th April 2021, Allied Irish Banks, p.l.c., AIB Mortgage Bank u.c., EBS d.a.c., Haven Mortgages Limited and AIB Group (UK) p.l.c. executed a Deed of Conveyance and Assignment (“the Deed of Conveyance”) by which all rights, title, interest, estate, benefit and entitlement in the mortgages over unregistered land which were identified in the Schedule to the Deed of Conveyance were transferred to the Plaintiff. The Deed of Conveyance has been registered in the Registry of Deeds. The Plaintiff exhibited redacted documentation confirming the position in relation to the two loans and correspondence dated 10th May 2021 from AIB to the Defendants confirming the sale and transfers of the two loans to the Plaintiff (“goodbye letters”) and letters dated 14th May 2021 from the Plaintiff to the Defendants (“hello letters”). All of the documentation and correspondence exhibited refers to the two loans owned by the Plaintiff and the subject of this application.

The Loans & Mortgage/Charge

8. Initially, by Letters of Offer dated 3rd September 2002 and 18th March 2005 Allied Irish Banks plc (“AIB”) offered the Defendants loans of €250,000 and €300,000 which included security by way of a Mortgage/Charge dated 16th February 2009 over the property and repayments by monthly instalments. It was further agreed that in the event of the Defendants failing to comply with any of the terms under which the money was offered the lender would be entitled to demand immediate repayment of all sums due and owing.

9. The Mortgage/Charge and the Deed of Conveyance have been registered in the Registry of Deeds. The function of the Registry of Deeds is to provide a system of recording the existence of deeds and conveyances affecting unregistered property (i.e., where the title has not yet been registered in the Land Registry).

10. Mr. McCoy BL, for the Defendants, argues that the Plaintiff’s application makes no reference to what he submits is the full context of what were initially three AIB mortgages (and loans) over the property and the fact that one of these loans was redeemed in or around July 2019 and he describes this as an engineered default where one account was satisfied.

11. This is further addressed in the second named Defendant’s Affidavit dated 22nd June 2023, at paragraphs (6) and (7), where Mr. O’Shea inter alia states that “following negotiations with AIB resulting in an agreement to pay €2,000 per month, no further steps were taken by AIB on foot of the said proceedings” and that “we have honoured the agreement made with AIB, indeed a further agreement to increase the monthly payment to €3,000 was made, but due to issues highlighted in a letter of 7th September 2017 [exhibited], regarding the manner in which AIB applied the monthly payment over the mortgage accounts, applying all the monthly payment to one mortgage to our detriment, the €3,000 monthly did not occur” and he further suggests that the Plaintiff is cherry-picking exhibits in the initial affidavit grounding this application.

12. The reference to three, rather than two, loan accounts is further elaborated upon in separate summary proceedings which were not listed before me, entitled Mars Capital Finance DAC v Dolores O’Connor and David O’Shea (Record No. 2024 177S) in which an Affidavit of David O’Shea sworn on 18th June 2025 grounded a discovery application in a motion dated 18th June 2025. This motion and affidavit were handed in by counsel for the Defendants during his replying arguments.

13. The central argument made on behalf of the Defendants is that I should either make an order of discovery or direct that the Plaintiff file an affidavit addressing the above matters raised by the Defendant.

14. The second named Defendant at paragraph (9) of his affidavit sworn on 22nd June 2023 further states that when the loan was acquired by the Plaintiff, the Defendants were contacted by an official of the Plaintiff who confirmed that no payments had been credited to the two remaining mortgage accounts since 2018 and that he was shocked at this revelation and sought to resolve the issue with AIB. The second named Defendant inter alia alleges at paragraph (10) of his Affidavit that “the accounts received from AIB also confirm that the AIB originally spread out monthly repayments over all mortgages, but then preferred one mortgage over the other, to put our accounts into an artificial default and wrongly facilitate the sale of our mortgages to the Plaintiff”.

15. At paragraph (11) of his affidavit sworn on 22nd June 2023, the second named Defendant avers that “since the loan was transferred to the Plaintiff, in circumstances, where they have failed to establish what is in fact due and owing on our mortgages, we have warehoused the monthly repayments, so that when this issue is resolved, we can make this payment and our agreed monthly repayment ton the Plaintiff.” (Emphasis and underlining added in this judgment).

16. At paragraph (12) of his affidavit sworn on 22nd June 2023, the second named Defendant avers that “in all the circumstances our mortgages were wrongly classified as not cooperating, where AIB failed to properly allocate our agreed monthly payments. I further say that we have honoured our agreement in full with AIB which caused them to abandon their possession proceedings. I say and am advised that in all the circumstances the Plaintiff cannot comply with the relevant Circuit Court Rules which is identical to the Order 4 Rule 4 of the Rules of the Superior Courts highlighted by the Supreme Court in O’Malley.”

17. The central difficulty facing the Defendants in this application, however, is that the Plaintiff’s claim is that a right of sale accrues in the two loans, which subtends their application for possession of the property. This is predicated on the fact that the full debt in the two loans, which are owned by the Plaintiff, is due in circumstances where:

(i) the Defendants have acknowledged default in the repayments which had been agreed to in relation to these two loans; (ii), separately, the efflux of time has meant that the full loan amounts in the two loans had become due and owing; (iii) payment was demanded and no payment was made; (iv) a right of sale of the property accrues in the two loans; (v) possession of the property was demanded and refused.

18. In Anglo Irish Bank Corporation plc v. Fanning [2009] IEHC 141, the High Court (Dunne J.) observed as follows at page three of its judgment in relation to the court’s jurisdiction (which on the facts of that case involved the distinction between a homeloan and a loan to purchase shares):

“In the Birmingham Citizens Permanent Building Society v. Caunt case … it was stated by Russell J. at p. 891 as follows:- “There appears no trace, prior to 1936, of any right in any court to deny a mortgagee asserting or claiming his right to possession, the appropriate order - though to this a qualification has to be made in that a court in the exercise of its inherent jurisdiction for proper reason to postpone or adjourn a hearing might by adjournment for a short time afford the mortgagor a limited opportunity to find means to pay off the mortgagee or otherwise satisfy him if there was a reasonable prospect of either of those events occurring. Indeed, it would be to me surprising if there had been such a trace, having regard to the fact that a legal mortgagee does not necessarily require any assistance from the court to assert his right to possession. Moreover, a mortgagee once rightfully in possession could never be ousted by the mortgagor except on paying off in full.”

On that basis it is contended that regardless of any dispute over the part of the loan attributed to the purchase of shares, there is a sum due in respect of the home-loan element of the borrowing. There is default in respect of that element of the loan and therefore the plaintiff is entitled to possession.

I find it difficult to disagree with the proposition. On the facts of this case, the defendant is in default. It is true he offered to pay the interest payable on the home-loan element of the borrowing but there has been no proposal to discharge any of the principle. The term of the loan has long since passed. I cannot see how the plaintiff can realise the sums due otherwise than by an order for possession. That is so in respect of the sum of €2.9 million just as it is so in the case of the balance of the borrowings. In those circumstances, even if I am wrong in my view that the court in its discretion should not adjourn the proceedings to plenary hearing to litigate the issues raised by the defendant in respect of that part of the loan used to purchase Smart Telecom Shares, I am of the view that in any event, the plaintiff is entitled to possession by reason of the default in the home-loan element of the borrowing secured by the mortgage.”

19. In addition, the redemption of the third loan in full by the Defendants in 2017 is not relevant to the position in relation to the two outstanding loans the subject of this application by the Plaintiff. Further, any arguments in relation to the quantum of debt can be addressed in the summary proceedings.

20. The formal proofs required in this application were exhibited to the affidavit of Ronan Hopkins, Manager for the Plaintiff, sworn on 13th June 2022.

Mortgage/Charge

21. The Deed of Mortgage at paragraph (2) sets out what the mortgage secures and paragraph 2.1 states that “The Mortgagor hereby covenants with each of the Lenders to pay the Total Debt owing to each such Lender in accordance with this Mortgage. This Mortgage shall be security for the Total Debt owing to each Lender, whether or not a Lender holds other security” and at paragraph 2.2 “This Mortgage shall secure the Total Debt owing to each Lender severally but not jointly.”

22. The “Total Debt” is defined at paragraph 2.3 as follows:

““Total Debt” means, in relation to either Lender, the aggregate of (a), (b), (c)and (d) below:

(a) all amounts payable by the Mortgagor in respect of any loans or credits of any nature made or granted by that Lender to the Mortgagor now or at any time in the future in whatever currency (including, without limitation, principal, interest, costs and expenses and all amounts payable by the Mortgagor under any letter of offer, loan agreement or contract involving an extension of credit of any nature made by that Lender to or with the Mortgagor now or at any time in the future), in each case, under terms which require the Mortgagor to provide or maintain this Mortgage as security therefor; and

(b) all amounts, liabilities, obligations (either actual or contingent) which the Mortgagor may owe to that Lender now or at any time in the future in whatever currency and whether on any current account or otherwise in any manner whatsoever as principal debtor, whether alone or jointly and severally or severally with any other person, in each case, under terms which require the Mortgagor to provide or maintain this Mortgage as security therefor;

(c) all amounts, liabilities, obligations (either actual or contingent) which the Mortgagor may owe to that Lender now or at any time in the future in whatever currency and in any manner whatsoever under any guarantee, indemnity or other contract of surety, whether alone or jointly and severally or severally with any other person; and

(d) all Expenses incurred by that Lender in accordance with the terms of this Mortgage on the basis of a complete, unlimited and unqualified indemnity to that Lender by the Mortgagor and all other amounts which the Mortgagor is liable for under this Mortgage.”

Conditions of the Mortgage/Charge

23. The Conditions of the Mortgage/Charge included the following provisions: at paragraph 2.2(a) (“Interpretation”) – “In these conditions and every document into which they are incorporated (including, without limitation, any Mortgage Deed and any Deed of Confirmation): (a) Where two or more persons together constitute the Mortgagor the covenants and agreements on the part of the Mortgage herein expressed or implied by law in the Mortgage shall be decided to have been entered into jointly and severally by the said persons”; at paragraph 3.2 (paragraph 3 had the subheading “Repayment of Total Debt”): “Notwithstanding the terms of the Mortgage Deed, the Total Debt owing to a Lender as shall for the time being remain unpaid shall immediately become due and payable on demand to the relevant lender on the happening of an Event of Default”; at paragraph 3.3: “The Mortgagor hereby further covenants with each Lender to pay the Total Debt payable to the relevant Lender at the times and in the manner provided in the Mortgage and the relevant Agreement for Credit without any deduction (whether for tax or otherwise) and not to exercise or seek to exercise any right or claim to withhold the relevant Total Debt or any part thereof or any right or claim to legal or equitable set-off in respect thereof”; paragraph 8 is under the sub-heading “Exercise of the Lender’s Powers” and paragraph 8.1 (a) and (b) provide that “The Lenders or either of them shall not exercise any of the powers provided for in sub-clause 3.2 unless and until any of the following events shall occur:

(a) Any event stipulated in any Agreement for Credit as an event by virtue of which a Lender becomes entitled to demand any of the Total Debt, or any of the Total Debt becomes dues and payable, earlier than it would otherwise have become due for payment; or (b) If the Mortgagor fails to pay or discharge within three months of the due date any money payable by him or any obligation or liability payable by him from time to time to a Lender”.

24. These terms are clear. There is no contradiction in the above terms as is suggested on behalf of the Defendants. The Defendants, rather, on their own account, are in breach of the conditions of the loans. In this regard, on 11th January 2022, the Defendants were indebted to the Plaintiff in the sum of €137,856.11 (including arrears) and €320,387.04 (including arrears) on foot of the two loans. By letter dated 11th January 2022, the Plaintiff demanded payment of the said sums from the Defendants. Notwithstanding these demands, the Defendants failed to pay the said monies which were due and owing and accordingly the Plaintiff’s power of sale pursuant to the provisions of the Deed of Mortgage/Charge arose and became exercisable.

18th May 2022: possession demanded

25. Further by letter dated 18th May 2022, the Plaintiff’s Solicitors wrote to the Defendants in the following terms:

“Re: Mars Capital Finance Ireland DAC -v- Dolores O’Connor and David O’Shea Premises–72 Parkmore Drive, together with the former laneway lying between numbers 70 and 72 Parkmore Drive, Terenure, Dublin 6W Mortgage/Charge dated 16 February 2009 made between Dolores O’Connor and David O’Shea and AIB Mortgage Bank & Allied Irish Banks, p.l.c Dear Sir, We act for Mars Capital Finance Ireland DAC…. We refer to our client’s letter advising you that the mortgagees interest in the above Mortgage/Charge had been conveyed/assigned/transferred to Mars Capital Finance Ireland DAC, together with your indebtedness on foot of the loan secured thereon.

In accordance with the terms of the above Mortgage/Charge, as Solicitors for Mars Capital Finance Ireland DAC, we now call upon you to hand over possession of the above premises to our client immediately.

Failure to comply with the above request will result in proceedings being issued for an Order for Possession. We estimate that the cost of such legal action, which may be your responsibility, will be in the region of €4,500 depending on the level of cooperation afforded by you.

Please note that even though you may surrender possession of the premises you will remain liable for your said indebtedness, including accrued and accruing interest, charges, legal, selling and related expenses until such time as same are fully discharged”.

26. Notwithstanding the above demand, the Defendants failed to deliver up possession of the property.

The CCMA

27. In his Affidavit of 13th June 2022, Mr. Hopkins, Manager for the Plaintiff, confirms that within proceedings are not in contravention of any moratorium period prescribed by the Central Bank’s Code of Conduct on Mortgage Arrears, as amended (“the CCMA”) or in breach of any other provision of the CCMA and he avers that where possible, contact has been made in accordance with the provisions of the CCMA in an effort to try and resolve the problem of the arrears and he confirms, by reference to exhibited correspondence with the Defendants, that every reasonable effort was made to agree an alternative arrangement with the Defendants prior to the issuing of these proceedings.

28. Mr. Hopkins avers that there has been compliance with Provision 29 of the CCMA in that the Defendants were deemed not co-operating, following a period whereby the Defendants were given an opportunity to co-operate and were notified by way of letters dated 19th July 2017 and 20th July 2017 that they had been classified as not co-operating and informed that legal proceedings could commence immediately and of the right to appeal this decision but that the Defendants had not appealed.

29. The letter dated 20th July 2017, for example, had stated that “You have the right to appeal this decision to classify you as not-cooperating to our Mortgage Appeals Board. If you wish to appeal, you must write to us within 20 business days of the date on which you receive this letter, setting out the reason for the appeal, at the following address [Address set out]”.

30. As stated, the Defendants, however, did not appeal.

31. The Defendants’ letter dated 7th September 2017 sought “a face to face meeting” with AIB in relation to what the Defendants alleged was their discovery that their “monthly repayments for August and September have been returned by your Bank [AIB] which is clearly an attempt by you to create an artificial default in our existing arrangement, in circumstances, where you have failed to put arrangements in place for the increased payments outlined above”.

32. Mr. Hopkins further avers that there has been compliance with Provision 56 of the CCMA and that every reasonable effort had been made under the CCMA to agree an alternative arrangement with the Defendants who had been classified as not cooperating and the notification required in Provision 29 of the CCMA had issued and that the Plaintiff was entitled to issue the within proceedings.

33. Mr. Hopkins stated that there had been compliance with Provision 58 of the CCMA in that the Defendants were written to on 20th May 2022 notifying them of the Plaintiff’s intention to commence legal proceedings.

34. Mr. Hopkins confirms that the within proceedings were commenced in the Circuit Court pursuant to section 3 of the 2013 Act as they are proceedings brought by a mortgagee seeking an order for possession of land which at the time of drawdown was the principal private residence of (a) the mortgagor of the land concerned, or (b) a person without whose consent a conveyance of that land would be void by reason of: (i) the Family Home Protection Act 1976; or (ii) the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, and the mortgage concerned was created prior to 1st December 2009.

35. Mr. Hopkins further confirms that the Circuit Court has jurisdiction to hear these proceedings pursuant to section 22 of the Courts (Supplemental Provisions) Act 1961 (as amended) as the market value (within the meaning of section 2(1) of the said Act) of the property does not exceed €3,000,000.

36. In a supplemental affidavit sworn on 25th January 2023, Mr. Hopkins stated that as of 16th January 2023, the total debt outstanding on one of the Defendants’ accounts was in the sum of €324,576.66 inclusive of arrears of €317,243.34 with the last payment at that time being €300 received in July 2019 and in relation to the second account, as of 16th January 2023, the total debt outstanding on the Defendants’ account was in the sum of €139,658.80, inclusive of arrears of €131,472.89 with the last payment at that time being €257.50 received in June 2021. Mr. Hopkins stated that since the proceedings issued, the Plaintiff had tried to engage with the Defendants on a number of occasions with a view to putting an arrangement in place but that to that date (25th January 2023), the Defendants had failed to engage in a constructive manner.

37. In a further affidavit sworn on 10th May 2023, Mr. Hopkins exhibited a redacted copy of the Mortgage Sale Agreement dated 18th February 2021 which had been referenced in the Recital of the Deed of Transfer dated 30th April 2021. He inter alia stated that he had been advised by his solicitor and believed that clause 2 of the Mortgage Sale Agreement comprised the operative sale and purchase clause which confirmed the transfer and assignment of inter alia the Mortgage Assets, the Underlying Loans and the Finance Documents amongst other rights and obligations to the Plaintiff and was further advised by his solicitor and believed that the Plaintiff had conclusively evidenced its ownership of the loan/debt/facility and mortgage/charge/security, the subject of these proceedings, and that the Plaintiff was the party entitled to enforce and/or execute the said agreements.

38. Mr. Hopkins further stated that as of 31st March 2023, the total debt outstanding on one of the Defendants’ accounts was in the sum of €327,345.55 inclusive of arrears of €317,064.76 and in relation to the second account, as of 31st March 2023, the total debt outstanding on the Defendants’ account was in the sum of €140,850.18, inclusive of arrears of €134,562.89 with the last payment at that time being €257.50 received in June 2021.

39. In an affidavit sworn on 9th February 2024, Mr. Hopkins averred that since 15th December 2023 when the Plaintiff had a scheduled meeting with the second named Defendant, there had been no constructive engagement or Standard Financial Statement from the Defendant, despite the Plaintiff’s attempts at contact with the Defendants. He stated that as of 31st January 2024, the total debt outstanding on one of the Defendants’ accounts was in the sum of €341,470.64 and €146,927.92 in relation to the other account. The Affidavit exhibited a copy of the statements of account and confirmed that the loan term in relation to the accounts had expired.

40. In an affidavit sworn on 27th September 2024, Mr. Hopkins inter alia stated that since the matter was last before the Circuit Court, there had been no constructive engagement on the account or Standard Financial Statement received from the Defendants and that as of 31st August 2024, the total debt outstanding on one of the Defendants’ accounts was in the sum of €282,695.60 and €151, 587.98 in relation to the other account. The Affidavit again exhibited a copy of the statements of account and confirmed that the loan term in relation to the accounts had expired.

41. In an affidavit sworn on 13th January 2025, Mr. Hopkins inter alia stated as of 31st December 2024, the total debt outstanding on one of the Defendants’ accounts was in the sum of €281,021.22 and €153,937.23 in relation to the other account. The Affidavit again exhibited a copy of the statements of account and confirmed that the loan term in relation to the accounts had expired.

42. The evidence before me in this application is that the Defendants stopped making the mortgage repayments and were in default of their agreement to do so, and further refused demands for repayment of the sums due and owing, which gave rise to the right of sale and of the Plaintiff to seek possession of the subject property. Possession was demanded and refused. Separate and in addition to the default of the Defendants in making the agreed repayments, the period of the loan term of the loan for €250,000 was for 20 years (240 months) on an offer dated of 3rd September 2002 and that period had expired or had come to term; similarly, the mortgage loan amount for €300,000 had an offer date of 18th March 2005 with a loan term of 15 years/180 months and that period had also expired or had come to term. There is, therefore, no basis to the argument made on behalf of the Defendants that clarification was required by the reference in the Statement of Account dated 18th May 2022 to the second column “(Sch)”, and monthly repayments, containing “€0.00”, when by that date the loan term had in fact expired and the ‘total sum’ was due and owing.

43. As of 7th January 2025, in relation to one of the two loans, an amount of €64,000 had been paid by the Defendants in or around May 2024 and monthly payments of €1,500 were paid thereafter so that as of 31st December 2024 the overdue mortgage payments were in the amount of €281,021.22 together with interest on overdue payments in the amount of €38,537.91 and in relation to the other loan, as of 31st December 2024, the overdue mortgage repayments were in the amount of €153,937.23 together with interest on overdue payments in the amount €17,150.23.

44. As stated earlier, however, the gravamen of this application is not in relation to the quantum of the loans or the Defendants payments in more recent times in relation to one of the two loans or the redemption in 2017 of the third loan. Rather, the loan and mortgage agreements between the parties were reduced to writing (including the above terms of the mortgage and the conditions of the mortgage) and arising from the default in payments (and the expiry of the loans terms) a right of sale accrued and entitled the Plaintiff to request possession of the subject property, which it did. Notwithstanding this request, the Defendants have failed and/or refused to comply with this request, which has in turn necessitated this application.

45. Further, in relation to an argument made on behalf of the Defendants in relation to the asserted agreement to repay €2,000, the clear terms of the written agreements between the parties have not been displaced or amended by any alleged oral agreement which allegedly either amends the clear terms of the agreement in writing in relation to the two loans or suggests that the sums should not be repaid.

46. The payments made to AIB of €2,000 during 2018 and 2019 in relation to the mortgage that was redeemed does not detract from the fact that there has been default in relation to the two loans and mortgage terms by the Defendants which are owned by the Plaintiff or that each of these loans have reached their term end, that demand for repayment was made and that the Defendants have refused to pay the sums due and owing and that a right of sale accrues in the Plaintiff and demand for possession of the subject property has been made on behalf of the Plaintiff and this has been refused by the Defendants.

47. In addition and separate to this, apart from the assertions of the second named Defendant, there is insufficient evidence to support the arguments posited in this regard on behalf of the Defendants.

48. By analogy, at paragraph (33) of its judgment in Promontoria (Arrow) Limited v. Mallon & Shanahan [2018] IEHC 145, the High Court (McGovern J.) in observing that the defence raised on the facts of that case lacked credibility and flew in the face of the written documents signed and accepted by the defendant, further observed that “For reasons of public policy, the courts will not permit oral evidence to be admissible if it is introduced for the purpose of contradicting the terms of a written agreement between the parties. The defence based on an alleged oral agreement made on 30th June, 2006, cannot succeed because it would be in breach of the parol evidence rule.”

49. Earlier, at paragraph (16) of his judgment, McGovern J. had referred to his judgment in Ulster Bank v Dean [2012] IEHC 248 where, at paragraph (6), he had rejected the defendant’s contention in that case that a collateral contract had varied the express terms of a loan facility, as follows: “The defendants have not produced any written documentation to support this claim. It appears, therefore, that they are seeking to alter the terms of the facility letters which are clear on their face by means of parol evidence. This is not permissible. For reasons of public policy, the courts have not permitted oral evidence to be admissible if it is introduced in an attempt to contradict the terms of a written agreement between the parties. This is known as the ‘parol evidence’ rule. See Macklin v. Graecen & Co. [1983] I.R. 61 and O’Neill v. Ryan [1992] 1 I.R. 166. In short, a party is not permitted to adduce evidence which, in effect, contradicts the reasonable construction of words used in a written agreement.”

50. McGovern J., at paragraph (17) of his judgment in Mallon also referred to paragraph

(13) of the decision of the High Court (Hogan J.) in Tennants Building Products Limited v O’Connell [2013] IEHC 197, as summarising the modern jurisprudence on collateral contracts, as follows: “The effect of this case-law may be said to be that while the courts will permit a party to set up a collateral contract to vary the terms of a written contract, this can only be done by means of cogent evidence, often itself involving (as in Mudd and in Galvin) written pre-contractual documents which, it can be shown, were intended to induce the other party into entering the contract. By contrast, generalised assertions regarding verbal assurances given in the course of the contractual negotiations will often fall foul of the parol evidence rule for all the reasons offered by McGovern J. in Deane.”

51. As set out in this judgment, the argument made on behalf of the Defendants that I should either make an order of discovery or direct that the Plaintiff file an affidavit addressing the above matters raised by the Defendants is, respectfully, without basis. The question of discovery is raised in separate proceedings entitled Mars Capital Finance DAC v Dolores O’Connor and David O’Shea (Record No. 2024 177S) and is not relevant to the application of the Plaintiff in these proceedings.

52. In Danske Bank v Duggan [2018] IECA 203, the Court of Appeal (Irvine J. (as she then was), Hogan and McGovern JJ) in the judgment delivered by Irvine J. observed as follows at paragraphs (29) to (31) of their judgment:

“(29) The first thing to be said in relation to this submission is that discovery is not a procedure which is available in the context of summary summons proceedings. Indeed, the benefit of the summary procedure is that straightforward claims, where the amount claimed is readily ascertainable, can be dealt with in a relatively short timeframe and in a cost-effective manner. Because the sum claimed must be readily ascertainable, discovery of documents should not be required. If it is, the claim is not one suitable for disposal in a summary manner.

(30) It is also understandable that Mr. Duggan, who is a lay litigant and consequently unfamiliar with the rules and practices of the courts, would not understand that orders for discovery are only made in the context of plenary proceedings and then only when it is necessary to resolve issues which can be identified in the pleadings exchanged between the parties. In the present case, because the proceedings are of a summary nature there has been no exchange of pleadings. However, if a judge refers summary proceedings for a plenary hearing, then discovery may be ordered at that stage.

(31) Another reason to reject this ground of appeal is that discovery must be directed to issues between the parties to the proceedings. Here Mr. Duggan’s complaint concerns the actions of the receiver, who was at all times his agent and is not a party to the proceedings. That being so there were no issues extant before the court as between the receiver and Mr. Duggan which might be resolved by discovery.”

53. Further, the reference by Mr. McCoy BL to paragraph (27-57, p. 1357) of Delany and McGrath on Civil Procedure (Fifth Edition, 2023)) and Order 37, rule 7 of the Rules of the Superior Courts 1986 which addressed the hearing of a motion for summary judgment and the wide discretion of the court, is not relevant to this application for possession brought by the Plaintiffs.

54. I am satisfied, for the reasons set out in this judgment, that the Defendants have defaulted in their agreements with the Plaintiff such that a power of sale has arisen and the Plaintiff is entitled to an order of possession of the subject property at 72 Parkmore Drive, together with the former laneway lying between numbers 70 and 72 Parkmore Drive, Terenure, Dublin 6W.

PROPOSED ORDER

55. I propose to make an Order granting the Plaintiff possession of the property, the subject of this application, namely ALL THAT AND THOSE the property at 72 Parkmore Drive, together with the former laneway lying between numbers 70 and 72 Parkmore Drive, Terenure, Dublin 6W.

56. I shall put the matter in for mention before me at 10.30am on Wednesday 28th January 2026 to address the question of costs.

CONLETH BRADLEY

14th January 2026