Von Geitz v O'Brien & Anor (Approved)

Factual and Procedural Background

The Plaintiff initiated proceedings seeking an order confirming his alleged adverse possession of a property located at 42 Percy Lane in the city of Dublin. He further sought a declaration that a conveyance of the property undertaken by the Defendants, acting as agents for a disclosed principal, was void, and claimed damages for negligence, breach of fiduciary duty, duty of care, and negligent misstatement. The Plaintiff’s claim is based on his occupation of the property following a lease granted by the original owner, Mr. Murtagh, who had borrowed money from a bank and subsequently abandoned the property. The bank appointed a receiver, and the property was eventually sold to a third party named Cerberus.

The Defendants applied to dismiss the proceedings on grounds that they constitute an abuse of process or are bound to fail, pursuant to Order 19 Rule 28 of the Rules of the Superior Courts or alternatively under the court's inherent jurisdiction. The Plaintiff sought judgment in default of defence and attempted to strike out the Defendants' motion to strike out his proceedings, which the court treated as two motions: the motion to dismiss and the motion for judgment in default.

The Plaintiff's adverse possession claim was challenged on the basis that he was occupying the property with the permission of the original owner, had not occupied the property since its sale in 2019, and had produced a fraudulent lease document purporting tenancy rights. The Defendants denied any duty of care to the Plaintiff and argued that the Plaintiff lacked standing to challenge the receivership or sale of the property.

The court also considered an application for adjournment by the Plaintiff, who appeared remotely despite being informed the hearing was in person. The Plaintiff was noted to be a frequent litigator with prior court judgments against him and an existing Isaac Wunder order.

Legal Issues Presented

1. Whether the Plaintiff has a reasonable cause of action to claim adverse possession of the property.
2. Whether the conveyance of the property by the Defendants as agents was void.
3. Whether the Plaintiff has standing to challenge the receivership and sale of the property.
4. Whether the Plaintiff’s claims for negligence, breach of fiduciary duty, duty of care, and negligent misstatement are sustainable.
5. Whether the proceedings should be struck out as an abuse of process or bound to fail under Order 19 Rule 28 or the court’s inherent jurisdiction.

Arguments of the Parties

Defendants' Arguments

• The Plaintiff lacks locus standi to challenge the receivership and sale because he was not a party to the mortgage or contractual relationship with the bank or purchaser.
• The Plaintiff never had adverse possession as he occupied the property with the permission of the original owner and ceased occupation after the property’s sale in 2019.
• The lease document produced by the Plaintiff was fraudulent, as it included the Plaintiff’s details on a lease originally granted to a company that had been struck off years earlier.
• There was no duty of care owed by the Defendants to the Plaintiff; thus, negligence and fiduciary duty claims must fail.
• The Plaintiff has not pleaded or proven any loss to sustain a claim for negligent misstatement.
• The proceedings are an abuse of process and bound to fail, warranting strike out under Order 19 Rule 28 and inherent jurisdiction.

Plaintiff's Arguments

• The Plaintiff claims adverse possession of the property and that any sale by the Defendants is void and statute barred.
• The Plaintiff denies tenancy despite correspondence indicating otherwise and asserts he controlled the company originally leasing the property.
• He contends the receivership is invalid and statute barred and alleges fraud by the Defendants.
• The Plaintiff claims a constitutional right of access to the courts and disputes the Defendants’ assertion of no duty of care.
• He admits to fabricating the amended lease document as a negotiation tactic but maintains his claim of adverse possession.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dunne v Iarnród Éireann [2016] IESC 46	Principles governing adverse possession, including possession without permission of the owner (nec vi, nec clam, nec precario).	Applied to determine that the Plaintiff’s occupation was with permission, undermining adverse possession claim.
McLoughlin and McLoughlin v Fennell and others [2024] IEHC 178	Adverse possession cannot occur where possession is with consent of the registered owner.	Used to reinforce that the Plaintiff’s claim fails as occupation was permissive and not adverse.
O'Malley v National Standards Authority of Ireland and Anor [2024] IEHC 500	Test for strike out applications under Order 19 Rule 28, including no reasonable cause of action and bound to fail.	Guided the court’s assessment that the Plaintiff’s claim is unsustainable and proceedings should be struck out.
Meehan v Ireland [2025] IECA 59	Affirmed the principles for strike out applications and the court’s confidence in no credible basis for claim success.	Supported the court’s approach to dismiss the Plaintiff’s proceedings as bound to fail.
Judith Whelan and Others v Allied Irish Banks p.l.c. and Others [2014] IESC 3	Requirement to properly plead allegations of fraud.	Referenced in relation to the Plaintiff’s unsubstantiated fraud allegations against Defendants.
Howley v McClean [2025] IECA 77	Dangers and consequences of baseless fraud claims and abuse of court process.	Supported the court’s criticism of the Plaintiff’s groundless fraud allegations and warning against abuse of process.
Keane and Keane v Ulster Bank Ireland DAC [2024] IECA 293	Negligent misstatement claims require proof of loss.	Applied to dismiss Plaintiff’s negligent misstatement claim for lack of pleaded or proven loss.
Mohan v Revenue Commissioners [2025] IEHC 63	Consideration of whether amendments could save a strike out application.	Informed the court’s conclusion that no amendment could save the Plaintiff’s claim.

Court's Reasoning and Analysis

The court analyzed the Plaintiff’s claim of adverse possession by applying established legal principles from leading case law, notably Dunne v Iarnród Éireann and McLoughlin v Fennell. The court found that the Plaintiff occupied the property with the permission of the original owner, Mr. Murtagh, which negates a claim of adverse possession. Furthermore, the Plaintiff ceased occupation after the property was sold in 2019, undermining any ongoing adverse possession claim.

The court scrutinized the Plaintiff’s production of an amended lease document bearing his name, concluding it was a fraudulent fabrication intended to mislead the Defendants and strengthen his negotiating position. This admission of fraud seriously undermined the Plaintiff’s credibility.

On the procedural front, the court considered the Defendants’ strike out application under Order 19 Rule 28, referencing recent judicial interpretations emphasizing that claims without reasonable cause or bound to fail should be dismissed. The court was not persuaded that any amendment could cure the defects in the Plaintiff’s claims.

The Plaintiff’s claims for negligence, breach of fiduciary duty, and negligent misstatement were dismissed on the grounds that no duty of care existed between the parties, and no loss was pleaded or proven, referencing Keane v Ulster Bank Ireland DAC.

Finally, the court addressed the Plaintiff’s constitutional right of access to the courts, acknowledging it but emphasizing that this right is not unfettered and does not protect claims that are unsustainable or an abuse of process.

Holding and Implications

The court STRUCK OUT the Plaintiff’s proceedings on the grounds that they disclose no reasonable cause of action, constitute an abuse of process, and are bound to fail under Order 19 Rule 28 and the court’s inherent jurisdiction.

The direct effect of this decision is the dismissal of the Plaintiff’s claims for adverse possession, declaration of void conveyance, and damages against the Defendants. The court found no basis for the Plaintiff’s arguments and rejected his attempts to amend or reframe the case. No new legal precedent was established; rather, the court reaffirmed existing principles concerning adverse possession, strike out applications, and the handling of fraudulent claims in litigation.