High Court dismisses appeal where Tailte Éireann's refusal to cancel a charge stands due to lack of owner consent.

THE HIGH COURT JUDICIAL REVIEW

[2026] IEHC 274 RECORD NO. HMCA 2025/80

BETWEEN ANTHONY CUMISKEY APPLICANT AND

MARS CAPITAL FINANCE IRELAND DESIGNATED ACTIVITY COMPANY AND TAILTE ÉIREANN

RESPONDENTS

EX TEMPORE RULING of Ms. Justice Siobhán Phelan, delivered on the 1st day of May, 2026

INTRODUCTION

1. This matter comes before me as an appeal pursuant to s.19(1) of the Registration of Title Act, 1964 (hereinafter “the 1964 Act”) against a decision of the Chief Registrar of Tailte Éireann refusing to vacate/set aside his Order refusing to remove the First Respondent from Folio MH41848F.

2. The core of the complaint made by the Applicant in moving his appeal is that the Tailte Éireann refused his application based on the First Respondent’s objection without first providing the Applicant with the objection and affording him an opportunity to respond to the said objection in breach of the requirements of constitutional fair procedures.

Specifically, this complaint is advanced on the asserted basis that Tailte Éireann accepted the contents of an affidavit sworn on behalf of the First Respondent and did not provide the Applicant with an opportunity to respond to the affidavit.

3. The Applicant is a litigant in person. On this appeal, the First Respondent was represented by solicitor and counsel. There was no appearance on behalf of Tailte Éireann who had advised the First Respondent in writing that the party or parties who objected to the application should be the correct Respondent. The position of Tailte Éireann as communicated in writing is that appeals pursuant to s. 19 of the 1964 Act are heard de novo by the High Court and it is the policy of Tailte Éireann not to take an active role in such proceedings but to await the outcome.

BACKGROUND

4. The Applicant is the registered owner of lands contained in Folio 41848F County Meath upon which a charge in favour of Irish Life and Permanent PLC was registered on the 18th of October, 2005. The Folio reflects transfer of this charge first to Start Mortgages Designated Activity Company (as registered on the 28th of March, 2019) and thereafter to the Mars Capital Finance Ireland Designated Activity Company (as registered on the 25th of July, 2024).

5. In addition to this appeal, the Applicant is involved in two other sets of proceedings arising in respect of a loan originally taken out with the Permanent TSB PLC Formerly Irish Life and Permanent PLC and secured under an indenture of mortgage/charge on the Folio aforesaid, namely:

(i) Circuit Court Possession proceedings (Eastern Circuit, County Meath 691/2017) in which an order for possession is sought as against the Applicant by reason of his alleged default in making loan repayments in breach of covenants and his failure to discharge the sums due and owing or deliver up possession of the property; and

(ii) Plenary Proceedings (Record No. 2023/1284P) issued by the Applicant in March, 2023 as against Start Mortgages DAC and the Property Registration Authority, in which the Applicant seeks to challenge and/or remove the charge registered on his property as originally executed in favour of Irish Life and Permanent PLC. My understanding is that the Property Registration Authority applied successfully to have the claim against it struck out. A decision on a separate application on behalf of the Start Mortgages DAC has been reserved.

6. By Form 17 lodged on the 2nd of October, 2024, together with Form 57B sworn on the 27th of September, 2024, the Applicant sought cancellation of the charge on the Folio registered in favour of Mars Capital Ireland Finance DAC. In grounding his application, the Applicant averred:

“I have never made any payment of principal or interest on foot of the said charge and no acknowledgement was ever given by me in respect of the said charge.”

7. It appears that on receipt of the application, Tailte Éireann wrote by letter dated the 15th of October, 2024, to Mars Capital Finance Ireland Designated Activity Company giving notice of the application for the cancellation of the charge registered on the folio and requesting a response to the application within 21 days.

8. By affidavit sworn on the 5th of November, 2024, the First Respondent objected to the application by Affidavit sworn by one Gareth Kavanagh who described himself as a litigation team leader for the First Respondent. In this affidavit, it was pointed out that neither Rules 101 nor 104 of the Land Registry Rules could be invoked in circumstances where the registered owner of the charge objected to the cancellation and accordingly, there exists no mechanism or provision under the Land Registry Rules for the cancellation of Mars’ registered charge given its objection to the application.

9. Other grounds of objection were also raised with reference to the pre-existing High Court proceedings taken against both Respondents seeking to challenge and/or remove the charge. It was pointed out that it would be improper for Tailte Éireann to engage with the dispute given that the Applicant had invoked the jurisdiction of the High Court to determine the dispute. Mr. Kavanagh did not rest there but also set out the loan history and the security obtained, the transfer of the said security in February, 2019 and the fact that the last payment to the loan account, the subject matter of the secured loan, was made on the 31st of January, 2019, with the result that any proceedings on foot of the charge would not be statute barred January, 2031. It was pointed out, however, that Circuit Court proceedings had, in fact, already issued. The fact that payments had been made in respect of the secured loan up until January, 2019, was emphasised in the context of the Applicant’s assertion that he had never made a payment or acknowledgment on foot of the said charge. Mr. Kavanagh exhibited a statement of account to evidence the payment history on the secured loan.

10. By letter dated the 18th of November, 2024, Tailte Éireann wrote to the Applicant referring to the fact that an objection had been lodged to the application. In this letter the grounds of objection were summarised as follows:

“1. By way of Plenary Summons dated 23rd of March, 2023 you brought High Court proceedings against Tailte Eireann and Mars Capital Finance Ireland DAC seeking to challenge and/or remove the charge registered in favour of Mars Capital Finance Ireland DAC at entry number 6 on Part 3 of folio MH41848F. The objector has advised that the court proceedings remain extant before the High Court.

2. The last payment to the account was in the sum of €115.00 made on 31st of January 2019.

It is evident from the content of the objector’s Affidavit that a dispute has arisen between you, the Applicant, and the Registered Owner of the charge, Mars Capital Finance Ireland DAC. It is not the function of the Authority to decide between the merits of both parties.

In these circumstances the Authority is not satisfied that you, the Applicant, is entitled to the registration sought. Accordingly, you are invited to withdraw within 14 days or alternatively the application be formally refused. Such a refusal could then be appealed to Court pursuant to section 19(1) of the Registration of Title Act 1964.”

11. By replying letter dated the 26th of November, 2024, to Tailte Éireann, the Applicant stated that the letter of the 18th of November, 2024, in which objections had been summarised had factual inaccuracies which “I will correct”. He continued:

“1. The Plenary Summons was not issued against Mars Capital, it was issued against Start Mortgages and Tailte Eireann.

2. The last payment was made to Permanent TSB and there was no dispute with PTSB. No payment has been made to Start Mortgages or indeed Mars Capital.

I will not therefore be withdrawing the application, should you refuse the application please provide the relevant form of appeal.”

12. It bears observation, as clear from this response, that the Applicant was made aware of certain issues arising from the First Respondent’s objection, even if he was not furnished with the Affidavit itself. It is significant that even though on notice that objection has been raised and of at least some of the factors relied upon in this objection, the Applicant does not request to the documentation in which the objection was raised before a decision is made but rather asks to be provided with the relevant form of appeal if the application is refused.

13. On the 19th of December, 2024, the Chief Examiner of Titles with Tailte Éireann refused the Applicant’s application on grounds stated in his ruling as:

“…due to conflicts between averments made by the said applicant and the objector, [the] Tailte Eireann is not satisfied that the applicant has established his right to the registration sought”.

14. The Applicant deposes that a copy of the Affidavit of Mr. Kavanagh was furnished with his returned application. It is my understanding that this was his first sight of the said affidavit. The Applicant then endeavoured to submit a replying affidavit sworn on the 15th of January, 2025, asking Tailte Éireann to essentially reopen the application and reconsider it.

15. In this Affidavit, the Applicant sought, inter alia, to argue against the First Respondent’s standing to oppose the application to have the charge removed (even though they are the registered owner of the charge), objected to Mr. Kavanagh’s means of knowledge and objected to the First Respondent’s entitlement to rely on the last payment which had been made to Permanent TSB, pointing out that plenary proceedings had issued as against Start Mortgages (the registered owner of the charge when proceedings issued)

and not Mars. Finally, he sought “a review of the application or an appeal thereof”.

16. By letter dated the 23rd of January, 2025, Tailte Éireann advised that the application had been refused on the 19th of December, 2024 and that the application could not be relodged for registration without an appropriate court order. He was again advised of his right of appeal under s. 19(1) of the 1964 Act.

17. An appeal was brought by Notice of Motion filed in the Central Office of the High Court on the 17th of February, 2025, grounded on an Affidavit sworn by the Applicant in which he exhibited the Affidavit of Mr. Kavanagh and stated that the Registrar of Tailte Éireann had accepted an affidavit by Mr. Kavanagh and did not provide the applicant an opportunity to respond to Mr. Kavanagh’s affidavit. He referred to the return of his replying affidavit submitted in support of a resubmitted application on the 17th of January, 2025, which he described as a further rejection of the application (whereas in fact the letter advised that the application had already been decided) on the basis of acceptance of Mr. Kavanagh’s affidavit, whilst ignoring the content of the replying affidavit of the Applicant.

18. There followed thereafter an exchange of affidavits as between deponents on behalf of the First Respondent and the Applicant in the context of this appeal, much of which it is unnecessary to repeat for present purposes other than to observe that the Applicant made an unseemly and unsupported allegation of perjury against a deponent swearing affidavits for the First Respondent without properly substantiating that serious allegation.

19. As this appeal is not concerned with the First Respondent’s ownership of the secured debt and right to rely on the charge, it is not necessary for me to engage further with these averments which were made in the context of disputing the entitlement of the deponent in question to make averments on behalf of the First Respondent in proceedings in respect of the charge. It is appropriate, however, that I record my view that nothing was presented to substantiate the allegation of perjury on this application, I attach no weight to the allegation and have purposely decided not to repeat it in terms.

20. In the interests of fairness, I should also record the Applicant’s explanation for an apparently untrue averment in grounding his application to Tailte Éireann to the effect that he had never made payments in respect of the charge and no acknowledgement was ever given by him in respect of the said charge when he had, in fact, only ceased making payments in January, 2019. When the inaccuracy in his averment was pointed out to him, the Applicant appeared to believe that payment to Permanent TSB ceasing in January, 2019 were not made in respect of the charge now registered in the name of the First Respondent. He did not address the fact that the charge now registered in favour of the First Respondent is the same charge originally registered in favour of Irish Life and Permanent Plc to secure the loan on foot of which payments were made to Permanent TSB. Given that the question of whether there have been payments in respect of the charge or any acknowledgement of the charge is not one I need to determine for the purpose of this appeal, I propose to say nothing further about the coherence or lack thereof of the Applicant’s position in this regard.

21. Of special relevance to this appeal, however, is the Applicant’s repeated reliance throughout his affidavits filed in support of this appeal on Rule 101 of the Land Registry Rule which he reproduces in his affidavit on no less than two occasions. This is the Rule he relies on as giving rise to his entitlement to apply to cancel the charge.

22. This Rule is entitled “Evidence on which a burden may be cancelled or modified.” The Rule in its express terms makes clear that an application to cancel a registered burden may only be made with the “concurrence of its registered owner or his/her personal representative.”

JURISDICTION AND LEGAL FRAMEWORK

23. Section 19(1) of the 1964 Act provides for an appeal to the High Court in respect of a refusal of an application by Tailte Éireann stating:

“Any person aggrieved by an order or decision of the Authority may appeal to the Court and the Court may annul or confirm, with or without modification, the order or decision.”

24. Despite the First Respondent’s contention that the fair procedures complaints which the Applicant sought to advance on this appeal were properly a matter for judicial review, I was not addressed to any authority by either side on the scope of my jurisdiction on a statutory appeal under s.19(1) of the 1964 Act. It is noted that Tailte Éireann contend that I deal with the application de novo on appeal. In the usual course, when the High Court sits for the purpose of a statutory appeal for the purpose of a de novo determination, its decision-making competence in respect of the subject application is the same as the deciding body, no greater.

25. This appeal concerns the refusal of an application to cancel a registered charge under Rule 101 of the Land Registry Rules. The said Rule provides:

“101. (1) On the application of any person interested in a registered burden or in the property on which it is registered, the Authority may cancel or modify the burden subject to compliance with the following conditions-

(a) Where the ownership of the burden is registered, the concurrence of its registered owner or his/her personal representative shall be required. No modification that would prejudice the rights of the owner of the property that the burden affects or of the owner of any other registered burden shall be made without the concurrence of that owner.

(b) Where the ownership of the burden is not registered or where the registered owner of the burden does not concur in the proposed cancellation or modification, the right of the applicant to the cancellation or modification applied for shall be proved to the satisfaction of the Authority; and the cancellation or modification shall be made only after such inquiries and notices as the Authority may direct.

(c) Where the burden is a covenant or condition relating to the use or enjoyment of property, the concurrence of all persons appearing to the Authority to be interested in the enforcement thereof shall be required.

(2) The application may be in Form 57A or 57B, as the case may be, adapted to suit the facts of the particular case.”

26. It is clear from the terms of Rule 101 that the Authority will not cancel a charge registered on the Folio without the agreement of the registered owner of the charge.

Accordingly, the fundamental question for the Authority on an application to cancel the charge under Rule 101 is whether the registered owner of the charge agrees to cancelation. Where there is no agreement, Tailte Éireann cannot cancel the charge without an order made by a court of competent jurisdiction.

27. Tailte Éireann is obliged under s. 21 of the 1964 Act to obey the order of a court of competent jurisdiction in relation to registered land such as an order which a court might make, if satisfied to do so, in proceedings seeking to set aside a charge akin to those which the Applicant has already initiated against Start Mortgages. I am satisfied, however, that when sitting on an appeal on a decision under s. 19 of the 1964 Act this court is not a court of “competent jurisdiction” in respect of disputed ownership of charge.

28. My function on this appeal is to determine whether the decision to refuse was correct or not and disputes in relation to ownership of a charge which has been registered is not a matter I can or should determine on this appeal. Whether this embraces a jurisdiction to annul the decision if satisfied it was reached in a procedurally unsafe manner is another matter and was not one upon which I received any assistance from the parties by way of cited authority. For reasons which become clear, however, it is not a matter which I need to determine for the purpose of this application, and this is clearly a matter which should only be determined based on argument made in reliance on relevant authorities.

29. Order 84C of the Rules of the Superior Courts, 1986 (as amended) sets out the applicable procedures governing a statutory appeal of this nature. Under Order 84C(5), the Rules provide for a twenty-one day time limit (unless otherwise prescribed) for appeal following the giving of the by the deciding body to the intending appellant of notice of the deciding body’s decision. In the absence of an enactment to the contrary, however, the Court has a discretion to extend time for good and sufficient reason providing such extension would not result in an injustice being done to any other person concerned in the matter.

DECISION

Time Issue

30. This appeal was not brought within twenty-one days. Although a time issue was brought to my attention, it was not pressed on behalf of the First Respondent.

Addressing the time issue on his feet, the Applicant relied on the fact that he sent his replying affidavit to the Tailte Éireann and requested that the decision be reviewed in the first instance, treating the refusal of his request for reconsideration or review as a fresh decision. It bears note that even if one were to accept that time should run from the date of the refusal to revisit the decision already communicated by letter dated the 19th of December, 2024, the Applicant still did not commence this appeal within 21 days of the purported further decision which was communicated by dated the 23rd of January, 2025.

31. The Applicant further indicated that he was not quite clear how to exercise his right of appeal and this caused him some delay. None of these matters are on affidavit.

32. The applicable time limit in this case is based in the Rules rather than in primary legislation. Under the Rules I am vested with a power to extend time for good and sufficient reason and when the extension does not result in injustice being done to any person concerned in the matter. As I have not been pressed on the time issue and given that no specific prejudice to the First Respondent has been flagged, it seems to me that whilst the grounds for an extension of time have not been established on affidavit in the proper way, I should not determine this application on time grounds alone but should consider the substance of the complaint agitated. I do so notwithstanding that the Applicant’s basis for seeking an extension of time as articulated on his feet before me was not particularly persuasive.

33. I do not wish this indulgence to be construed as a precedent for concessions to lay litigants who do not prosecute their appeals on time and I am influenced by the nature of the appeal, the statutory framework in which it arises as well as the circumstances of the case. Chief among these circumstances is that the issues arising on the appeal are net and it may ultimately result in a saving of court time if I deal with the appeal on its merits rather than rejecting it as out of time given the possibility that my decision would be reversed on appeal leading to additional costs and delay upon a remittal.

34. While it would have been helpful to have guidance on the issue of my jurisdiction on this appeal, specifically whether it extends to declaring the refusal to have been made in breach of fair procedures, quashing the refusal and remitting the matter for fresh consideration, this being the relief which the Applicant appeared to contend for by maintaining that his appeal was about securing a right to be heard in response to Mr.

Kavanagh’s Affidavit, it seems to me that for present purposes, I do not need to dwell overly on this question because it is not necessary to decide this question to determine these proceedings. I have reached this conclusion for several reasons.

35. Firstly, any alleged unfairness in the decision-making process is in any event cured by the fact that the Applicant had the benefit of a de novo hearing before me on appeal and was heard in respect of Mr. Kavanagh’s affidavit in which objection to cancellation was set out. I have considered whether there was anything advanced which could warrant the Tailte Éireann making a different decision on the cancellation application. Having considered the Applicant’s replying affidavit as furnished to Tailte Éireann by way of response to the Affidavit together with his affidavits sworn for the purpose of this appeal, I find no grounds for concluding that the Tailte Éireann erred in law or on the facts in refusing his application based on the information contained in the affidavit of Mr. Kavanagh. I am equally satisfied that nothing further has been advanced in any of the later affidavits, which would not have been before Tailte Éireann, which would cause me deciding on the cancellation application de novo to arrive at a different

decision.

36. Whilst the Applicant clearly disputes the First Respondent’s entitlement to rely on the charge registered in its name, this is not a matter upon which Tailte Éireann could adjudicate. It must be recalled that the Tailte Éireann is not a court and cannot determine disputes in relation to ownership of property. I note that in McGuinness v.

Property Registration Authority of Ireland & Ors. [2021] IECA 25 (at para. 5) Murray

J. quotes the PRA’s letter stating that it is not the function of the Authority to decide between the merits of the claims of both parties. In this case, it was clear and remains clear that once the registered owner of the charge was not consenting, the application should be refused until such time as a court of competent jurisdiction has determined the dispute and ordered otherwise. Accordingly, the Tailte Éireann quite correctly refused the application on the basis that it was evident that a dispute had arisen between the Applicant and the registered owner of the charge and it is not the function of the Tailte Éireann to decide between the merits of both parties.

37. The decision to refuse to cancel the charge on application of the Applicant is clearly correct in law and on the facts in circumstances where the registered owner of the charge is not consenting to the application and disputes in relation to rights and title to land can only be determined by courts of competent jurisdiction properly seised. It bears repetition that Tailte Éireann has no adjudicative role in relation to the rights and wrongs of a contested ownership of the charge. Nor do I on a statutory appeal under s.

19(1) of the 1964 Act where my powers are no greater than that of the Second Respondent. In the case of the dispute between the Applicant and the First Respondent, two sets of proceedings are already in being in which issues of legal title arise for determination.

38. Secondly, I am satisfied that if I had a jurisdiction to annul the decision of Tailte Éireann on grounds of procedural unfairness in a manner which would require it to reconsider the application having considered the Applicant’s late replying affidavit in response to the First Respondent’s objections, it would not be appropriate to exercise that power in this case. This is because the decision which the Tailte Éireann had to make on an application in reliance on Rule 101 was a very simple one. Where the registered owner of the charge was not consenting to the application and a court had not directed cancellation, Tailte Éireann was obliged to refuse the application. Nothing the Applicant could say in response to the Affidavit of Mr. Kavanagh signalling the lack of concurrence of the First Respondent in the application could change this

39. It is well established that the requirements of fair procedures vary depending on the context and circumstances. In Mooney v. An Post [1998] 4 IR 288, para. 51, Barrington

J. acknowledged that the best-known precepts of natural and constitutional justice may not be applicable at all in certain cases. It seems to me where there is nothing which could be said to change the outcome, as when consent is a pre-requisite and consent is not forthcoming, then the requirement to afford a right of reply is weak if not nonexistent. Even where a right to know the basis for objection arises as a matter of fair procedures because it might have a bearing on the decision to be made (which it would not in this case where consent is required and is demonstrably absent), it has been found that in such cases a precis may be sufficient (as confirmed in the decision of Haughton

J. in Grange v. Information Commissioner [2022] IECA 153 Haughton J.) where it serves to put the affected party on notice of the essential elements.

40. Given the limited role of Tailte Éireann and the fact that it has no competence to cancel a charge on application under Rule 101 when the registered owner objects to cancellation, it is my view that the requirements of fair procedures in this case, such as they may be, were most certainly served by alerting the Applicant to the fact that the registered owner objected. Furthermore, while the Affidavit of Mr. Kavanagh appears not to have been provided to the Applicant before the refusal was confirmed, the grounds of objection raised by Mr. Kavanagh were summarised in Tailte Éireann’s letter of the 18th of November, 2025 and the Applicant availed of an opportunity to reply at that stage.

41. By the terms of his reply, he pointed out certain asserted factual inaccuracies and did not request a copy of Mr. Kavanagh’s affidavit. It was clear, even from his reply, that a dispute existed in relation to charge. In view of the requirement for agreement from the registered charge owner to its cancellation, there being no agreement between the parties as evidenced by the terms of the Applicant’s own correspondence of the 26th of November, 2025, it was inevitable that the application would be refused by Tailte Éireann.

42. Having considered the contents of the replying affidavit which the Applicant sought to rely upon in requesting a review of the decision already made by Tailte Éireann, I am quite satisfied that it could not impact on the decision to refuse in this case. In the circumstances, I have no hesitation in finding that I do not need to consider what jurisdiction I would have in the event of a procedural irregularity being established as giving rise to an unfairness because I am satisfied that there was no unfairness resulting from the failure to provide the Applicant with a copy of Mr. Kavanagh’s affidavit and allowing him an opportunity to respond. This is because nothing he could say could address the fact that the First Respondent maintained its entitlement to rely on the charge and was not consenting to its cancellation.

CONCLUSION

43. For the reasons set out above, I am satisfied that the proper order on this appeal is an order confirming the decision of the Tailte Éireann dated the 19th of December, 2024 (as restated by letter dated the 23rd of January, 2025). I will hear the parties in respect of any consequential matters.