Foreign Bankruptcy Re-vesting Must Be Proved (as Foreign Law) in Summary Mortgage Possession, and Post-Default Payments Do Not Found Estoppel; Execution May Be Stayed Pending a Related Plenary Claim

Case: Start Mortgages Designated Activity Company and Anor v Healy (Approved) (High Court, Dignam J) [2026] IEHC 17
Date: 16 January 2026  |  Procedure: Special Summons possession under s.62(7) Registration of Title Act 1964

1. Introduction

The proceedings concern a lender’s application for possession of four Galway properties secured by a registered charge. The loan of €1,000,000 was advanced by Permanent TSB in March 2008, secured by mortgage over the properties. Following default, a rent receiver was appointed in 2012. The defendant was adjudicated bankrupt in the United Kingdom in July 2013 and discharged in July 2014. Permanent TSB (and later its successor, Start Mortgages DAC) did not prove in the bankruptcy and confirmed it would rely on its security only and would not pursue any shortfall.

The lender demanded repayment and vacant possession in early 2018 and issued summary possession proceedings in August 2018 under s.62(7) Registration of Title Act 1964. The defendant later re-entered the properties (circa September 2020), carried out works said to cost about €30,000, rented three properties, and resumed monthly payments of €1,200 from November 2021. He argued that his UK bankruptcy discharged the debt; that he acquired an equitable interest through expenditure and payments; and that the lender was estopped (and/or barred by delay/laches) from seeking possession. He also instituted separate plenary proceedings and sought either plenary adjournment or, alternatively, a stay of any possession order pending his claim.

Key issues

• Whether the plaintiff satisfied the requirements for summary possession under s.62(7) and Order 38 Rule 9 RSC.
• Whether the defendant showed a “credible” defence: (i) UK bankruptcy effects; (ii) alleged re-vesting under s.283A UK Insolvency Act 1986; (iii) alleged equitable/proprietary interest arising from improvements and payments; (iv) estoppel by convention / promissory estoppel; (v) delay/laches.
• If possession was granted, whether execution should be stayed pending the defendant’s plenary proceedings.

2. Summary of the Judgment

• The Court held the plaintiff was the registered owner of the charge and the right to seek possession had arisen.
• The defendant did not establish a credible defence:
  • Assertions about UK insolvency re-vesting and its effects were not supported by evidence of foreign law; bare reliance on s.283A was insufficient.
  • No credible equitable interest was shown, particularly as the defendant failed to establish a proprietary interest prerequisite.
  • No credible case of estoppel by convention or promissory estoppel was made out, given the prior demand for possession, issuance and continuation of proceedings, absence of lender knowledge/acquiescence in re-entry/works, and absence of any clear and unequivocal promise.
  • Delay/laches was rejected on the facts.
• The Court granted an Order for Possession of all four properties.
• With reservation, the Court stayed execution of the possession order pending determination of the defendant’s separate plenary proceedings, conditional on those proceedings being prosecuted with expedition, and with liberty to apply to lift the stay if there is unreasonable delay.
• Provisional costs view: plaintiff entitled to costs, with a stay on execution pending the plenary proceedings.

3. Analysis

3.1 Precedents Cited

A. Summary possession framework and the “credible defence” threshold

• Bank of Ireland v Cody [2021] IESC 26:
  • Provided the governing test: the plaintiff must prove (a) ownership of the charge and (b) that the right to possession has arisen and is exercisable; summary disposal is appropriate where the plaintiff establishes its case and no credible defence is shown.
  • Dignam J applied Cody’s spectrum analysis (clear cases for judgment; clear cases for dismissal; intermediate cases requiring plenary trial where contested facts/complex law cannot be resolved on affidavit).
• Tanager DAC v. Kane [2018] IECA 352 (as discussed in Cody):
  • Underpinned the “conclusiveness of the Register” approach: in s.62(7) proceedings, the registered owner’s title to the charge is ordinarily established by production of the folio, and challenges to register correctness are not a summary defence.
• Ulster Bank v O'Brien [2015] 2 IR 656:
  • Reinforced the cautionary approach and the core inquiry: whether there is a “fair and reasonable probability” of a real or bona fide defence; also highlighted the constraints of deciding contested matters on affidavit without cross-examination.
  • Dignam J accepted the need for caution but found (apart from foreign law) no material factual conflicts requiring plenary hearing.
• Start Mortgages v. Gunn (referred to within Cody):
  • Used as Cody’s example of an “unanswerable legal defence” situation (in that case, statutory change removing legal basis). Here, Dignam J contrasted that type of clear defence with the defendant’s unproven foreign-law assertions.
• The defendant’s authorities on affidavit conflict and plenary necessity: IBRC v McCaughey [2014] 1 IR 749, RAS Medical v Royal College of Surgeons [2019] IESC 4, GE Capital Woodchester Ltd v Aktiv Kapital Asset Investment Ltd [2009] IEHC 512, Templecrone Co-Operative Agricultural Society Limited v McLoughlin [2015] IECA 14, National Irish Bank v Graham [1995] 2 IR 244, Anglo Irish Bank Corporation plc v Fanning [2009] IEHC 141:
  • These were acknowledged for the general proposition that bona fide disputes may require plenary hearing, but Dignam J held there was no material factual conflict on the maintained defences; the principal deficit was evidential (foreign law), not factual contest.

B. Bankruptcy, vesting, and standing to litigate property issues

• ACC v Fagan [2013] IEHC 346:
  • In an Irish bankruptcy context, held that upon adjudication property vests in the Official Assignee under s.44 Bankruptcy Act 1988, leaving bankrupts without standing to defend claims relating to vested property; also precluded challenging validity of the registered charge.
  • Here, the plaintiff sought to analogise the UK vesting effect to ACC v Fagan. Dignam J noted the plaintiff’s argument but emphasised that UK law is foreign law and its interpretation/operation must be proved by evidence.
• Quinn v Irish Bank Resolution Corporation Limited and Ors [2012] IEHC 261:
  • Cited within ACC v Fagan to support the proposition that vesting affects standing. Its influence here was indirect, reinforcing the concept that vesting can curtail a bankrupt’s ability to litigate property issues—but only once the relevant vesting regime is properly established.

C. Proprietary interest as a prerequisite to equitable remedies

• O'Donnell v Bank of Ireland [2014] IESC 77:
  • Central to rejecting the defendant’s “equitable interest” theory. Laffoy J’s statement that a person who cannot demonstrate a proprietary interest in the relevant property cannot pursue equitable remedies against a constructive trustee was treated as fundamental.
  • Dignam J applied this as a gateway principle: absent credible proof that the properties re-vested in the defendant (a proprietary interest), alleged equities from expenditure/payments cannot ground an equitable proprietary claim blocking possession.

D. Estoppel: convention and promissory estoppel

• Ulster Investment Bank Limited v Rockrohan Estate Limited [2015] IESC 17:
  • Provided the modern Irish articulation of estoppel by convention: it requires conduct establishing an objective shared assumption; it cannot rest on one-sided “bare assumption”; there must be demonstrable representation/behaviour by the party to be estopped.
  • Dignam J used this to test whether the plaintiff’s conduct (accepting payments) could objectively signal a new governing state of affairs. It could not, given the ongoing possession litigation and lack of lender involvement in re-entry/works.
• Courtney v McCarthy [2008] 2 IR 376 and Amalgamated Property Co v Texas Bank [1982] 1 QB 84:
  • Supported that estoppel by convention may arise from a shared mistaken assumption acquiesced in, and can (in principle) be used as more than merely defensive depending on context.
  • However, Dignam J found the factual predicate—shared, unequivocal assumption—absent.
• National Asset Loan Management Limited v McMahon, O'Brien & Downes [2014] IEHC 71:
  • Emphasised that acquiescence requires knowledge of the state of affairs and effective consent; this undermined any suggestion that the plaintiff acquiesced in unnotified re-entry and repairs.
• Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] AC 741:
  • Used to stress that promissory estoppel requires clarity and precision akin to contractual variation; Dignam J found no “clear and unequivocal” promise or assurance, and also a temporal mismatch (works/expenditure preceded any alleged assurance).

E. Stay of execution where there is a cross-claim / separate proceedings

• Moohan v S & R Motors (Donegal) Ltd [2008] 3 IR 650:
  • Set out the discretionary framework where a defendant lacks a defence but asserts a cross-claim: distinguish (i) equitable set-off arising from the same facts (a defence) from (ii) independent claims (judgment may be entered but execution may be stayed).
  • Dignam J adopted this as the organising framework but adapted it to the non-monetary nature of possession relief and to the overlap between the defendant’s pleaded “equitable interest” theory and the defences already rejected.
• Prendergast v Biddle (Unreported, Supreme Court, 31st July 1957):
  • Provided the core discretion factors (apparent strength of counterclaim; conduct and promptitude; nature of claims; financial position), and the concept that judgment may be appropriate even while execution is stayed.
  • Dignam J explicitly weighed these factors, noting significant delay by the defendant and doubts about the strength of his “equitable interest” thesis, yet still granted a stay due to potential hardship and the accounting-type issues flagged.
• Sheppard v Wilkinson:
  • Referenced within Prendergast as an example of staying execution pending counterclaim; Dignam J treated it as illustrative, not a universal rule.

3.2 Legal Reasoning

A. Entitlement to summary possession under s.62(7)

Applying Bank of Ireland v Cody [2021] IESC 26, the Court found the plaintiff had proven the two core elements: (i) it was the registered owner of the charge; and (ii) the right to possession had arisen due to default and demand. The defendant’s remaining arguments were not directed at undermining those proofs but rather at whether equity or bankruptcy effects should prevent enforcement.

B. UK bankruptcy, vesting, and the evidential burden for foreign law

A central strategic move by the defendant was to assert re-vesting under s.283A UK Insolvency Act 1986 (and, more broadly, to treat UK bankruptcy consequences as self-evident). Dignam J treated this as a threshold failure: the interpretation and operation of foreign statutes are matters of fact requiring evidence (typically expert evidence). Even though the plaintiff also invoked UK law to argue vesting and standing, the defendant carried the burden of showing a credible defence; therefore, to rely on s.283A he had to adduce some evidential foundation.

The Court’s treatment is important: it did not definitively construe s.283A, but it did indicate “serious doubts” on the face of the text and facts (notably, s.283A applies to an interest in a dwelling-house that was the sole/principal residence “at the date of the bankruptcy”; the defendant’s UK residence underpinning UK bankruptcy was inconsistent with a Galway principal residence at that date). Ultimately, however, the dispositive point was evidential: absent proof of UK law, the “re-vesting” contention could not amount to a credible defence in summary proceedings.

C. “Equitable interest” theory: proprietary interest as the gateway

The defendant’s case sought to convert expenditure on repairs and resumed payments into an “equitable interest” sufficient to resist possession. Dignam J treated O'Donnell v Bank of Ireland [2014] IESC 77 as a decisive principle: equitable remedies presuppose a proprietary interest in the property. Since the defendant could not credibly establish (on evidenced foreign law) that the properties re-vested in him post-bankruptcy, he failed at the gateway; improvements and payments could not, of themselves, conjure a proprietary interest capable of blocking a registered chargeholder’s possession remedy.

The Court also characterised the defendant’s repairs and payments, in the absence of a proprietary base and lender acquiescence, as effectively “voluntary” in the relevant equitable sense: they did not supply the missing proprietary entitlement required to assert a constructive trust-type claim against the chargeholder in possession proceedings.

D. Estoppel (by convention and promissory): context defeats inference

Dignam J’s estoppel analysis is strongly contextual. The Court contrasted what estoppel doctrine requires—knowledge/acquiescence or a clear and unequivocal assurance affecting legal relations—with what occurred:

• The plaintiff demanded possession (February 2018) and issued proceedings (August 2018): this made the plaintiff’s enforcement position “crystal clear”.
• The defendant’s re-entry (circa September 2020) was not shown to be notified to the plaintiff; therefore there was no credible basis for acquiescence.
• No evidence showed the plaintiff knew of, encouraged, or permitted the repair expenditure; therefore estoppel by convention lacked its foundational “shared assumption” element (per Ulster Investment Bank Limited v Rockrohan Estate Limited [2015] IESC 17 and National Asset Loan Management Limited v McMahon, O'Brien & Downes [2014] IEHC 71).
• The acceptance of monthly payments from November 2021 occurred during ongoing litigation and ongoing affidavit exchanges, and therefore could not objectively communicate that the plaintiff had abandoned its possession claim.
• Promissory estoppel failed for want of a “clear and unequivocal” assurance and because the alleged detrimental reliance (repairs) did not follow the alleged assurance (acceptance of payments).

The Court also rejected delay/laches as a bar: delays were explained by the bankruptcy complexities, Covid-19 disruption, and defendant-driven adjournments.

E. Granting possession but staying execution: a calibrated discretion

Having rejected the defences, the Court nonetheless exercised discretion to stay execution pending determination of the defendant’s plenary proceedings. This is where the judgment is most nuanced. Dignam J accepted that Moohan v S & R Motors (Donegal) Ltd [2008] 3 IR 650 and Prendergast v Biddle (Unreported, Supreme Court, 31st July 1957) primarily dealt with money claims; yet he treated their discretion factors as adaptable.

Factors against a stay included: (i) the defendant failed to show a credible defence on the very ground overlapping his plenary claim; (ii) the defendant’s lack of promptitude in focusing the re-vesting/equity theory; and (iii) doubts about the strength of that aspect of the claim. Factors favouring a stay included the practical hardship asymmetry: immediate possession and sale could irreversibly prejudice the defendant if he later succeeded in obtaining monetary relief for (a) post-2021 payments, and/or (b) value added by works, whereas the plaintiff would suffer no particular hardship from a time-limited, conditional stay—especially with liberty to apply to lift it if delay occurred.

3.3 Impact

• Foreign insolvency arguments in Irish summary possession proceedings now carry an explicit evidential warning: parties must come equipped with proof of foreign law. This is likely to shape litigation strategy—defendants relying on foreign bankruptcy “re-vesting” should anticipate needing expert evidence early, or risk summary defeat.
• Estoppel defences face a high contextual hurdle in possession cases already in litigation: acceptance of payments after demand and during proceedings will rarely, without more, amount to an objective abandonment of enforcement rights.
• A pragmatic template for conditional stays: even where the lender obtains a possession order, the Court may protect the defendant against irreversible consequences pending determination of a related claim—particularly where the defendant’s arguable relief is monetary/accounting in nature (credit for payments; improvements), and provided the defendant prosecutes the claim promptly.
• Borrower “improvement expenditure” is recast as a potential money claim rather than a proprietary defence: the judgment separates (i) possession entitlement (property/registered charge focus) from (ii) accounting or restitutionary issues (payments, improvements) which may be litigated separately.

4. Complex Concepts Simplified

• s.62(7) Registration of Title Act 1964 (summary possession): a streamlined procedure allowing a registered chargeholder to seek possession without a full trial, unless the defendant shows a credible defence or triable issue.
• “Conclusive register” (s.31 of the 1964 Act, as reflected in Cody/Tanager): the Land Registry folio is treated as conclusive proof of the registered owner of the charge for the purposes of summary possession; it is generally not open to a defendant to re-litigate title in this forum.
• Secured creditor “staying out” of bankruptcy: a secured creditor may choose not to prove in bankruptcy and instead rely on its security. Practically, it can enforce against the secured asset, but may be restricted from claiming any unsecured shortfall from the bankruptcy estate.
• Foreign law must be proved: Irish courts do not automatically “take judicial notice” of how UK statutes operate. A party relying on UK statutory effects (like re-vesting) typically must provide expert evidence explaining how the UK courts apply that statute.
• Estoppel by convention: prevents a party from denying a shared, clear assumption on which both acted, where it would be unconscionable to resile. It requires something objectively showing a mutual assumption or knowing acquiescence—not simply one party’s belief.
• Promissory estoppel: stops a party from going back on a clear promise intended to affect legal relations where the other party relied on it to their detriment. The promise must be clear and reliance must occur because of it.
• Stay of execution: even after a plaintiff wins judgment, a court can pause enforcement temporarily. It is discretionary and typically conditional (here: defendant must prosecute the plenary case quickly).

5. Conclusion

Start Mortgages DAC and Anor v Healy confirms the strength of the s.62(7) summary possession regime as articulated in Bank of Ireland v Cody [2021] IESC 26, and it draws a sharp evidential boundary around defences grounded in foreign insolvency law: without proof of UK law, “re-vesting” assertions cannot become a credible defence. The judgment also demonstrates the Court’s reluctance to infer estoppel from post-default payments in the shadow of active possession litigation, particularly absent lender knowledge or a clear promise. At the same time, the Court shows willingness—where hardship and potentially viable monetary accounting issues arise—to grant a possession order while staying execution pending related plenary proceedings, on strict terms of expedition.