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Filbeck Limited v Kirwan (Approved)
Summary of Judgment
Factual and Procedural Background
The Plaintiff is a judgment creditor of the Defendant, having obtained judgment against the Defendant on 15 November 2012 in earlier proceedings (the "2011 Proceedings"). The Plaintiff seeks to set aside a conveyance by which the Defendant's interest in a residential property ("the Property", recorded in Folio 7709F) was transferred so that Defendant 2 was registered as sole owner and the Defendant removed as joint owner.
A chronology of key events (selected): the parties were registered as joint owners in 1982; the Property was later registered in Defendant 2's sole name; summary proceedings were commenced by the Plaintiff in late 2011; judgment in default was obtained on 15 November 2012 for an unsatisfied debt; the Defendant pursued multiple motions and proceedings (including motions to set aside the judgment and other related proceedings in 2012 and 2013); the Plaintiff commenced the present action under s.74 of the Land and Conveyancing Law Reform Act 2009 seeking relief in respect of the conveyance; interlocutory motions by the Defendant (the 2019 Motion and the 2025 Motion) sought various forms of relief (strike out, cross-examination, particulars, inspection, disclosure of solicitor's file, an Isaac Wunder order, and costs).
The litigation history is protracted, involved repeated applications by the Defendant, and reached the Supreme Court which delivered judgments in May 2025 upholding the Court of Appeal. Prior rulings (including an ex tempore ruling by Judge Ferriter) had refused applications by the Defendant to set aside the Plaintiff's judgment. This judgment, delivered by Judge Jordan on 18 May 2026, addresses the Defendant's Motions and related interlocutory matters.
Legal Issues Presented
- Whether the Plaintiff has established the elements required under s.74 of the Land and Conveyancing Law Reform Act 2009 to set aside the conveyance (existence of conveyance; intention to defraud creditors; prejudice to the challenger).
- Whether the Defendant's Motions to strike out the Plaintiff's claim (including a challenge to the underlying judgment) should be granted under Order 19, r.28 RSC or the court's inherent jurisdiction.
- Whether the Defendant's applications for interlocutory relief (cross-examination of deponents, compelling replies to particulars, inspection and production of documents, provision of the Defendant's solicitor's file, an Isaac Wunder / litigation restriction order, and costs) should be granted.
- Whether the Defendant's applications amount to an abuse of process given the history of concluded proceedings on related matters.
Arguments of the Parties
Defendant's Arguments
- Seek striking out the Plaintiff's claim on merits / challenge to the underlying judgment on grounds including alleged corruption, fraud and misconduct.
- Assert non-compliance with the Rules of the Superior Courts 1986, failure to deliver a Statement of Claim, delay and improper service.
- Seek cross-examination of deponents, compelling of replies to particulars, inspection and production of documents, and disclosure of the Defendant's former solicitor's file.
- Seek an Isaac Wunder order (litigation restriction) and awards of expenses and costs in their favour.
Plaintiff's Arguments
- Claims under s.74 are supported: there was a conveyance; the conveyance had the effect of putting an asset beyond creditors' reach and thus establishes requisite intent; the Plaintiff, as unsatisfied judgment creditor, is prejudiced.
- The Defendant cannot meet the threshold for striking out under Order 19, r.28 or the inherent jurisdiction; the Plaintiff's case is stateable and strong on the evidence.
- The Defendant's motions repeat matters conclusively determined in prior proceedings and therefore constitute an abuse of process.
- Interlocutory relief (cross-examination, particulars, inspection, solicitor's file, Isaac Wunder relief) is not justified on the facts or law; service objections were waived by entry of appearance; costs should not be awarded to the Defendant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Party A v. Party B [2025] IESC 21 | Comprehensive account of the litigation history between the parties; referenced for context and prior determinations. | The court relied on the Supreme Court's account to demonstrate prior final rulings and to show matters previously concluded by the Defendant. |
| Company A v. Party C [2024] IEHC 755 | Elements a plaintiff must prove under s.74(3) of the 2009 Act (conveyance; intent to defraud creditors; prejudice to challenger). | Used to set out the statutory proofs the Plaintiff must satisfy; the court applied these elements to the facts. |
| Company A v. Party C [2018] IEHC 767 | Authority on fraudulent intent: "intent to delay, hinder or defraud creditors" and that such intent may be inferred from the necessary and probable consequences of the act. | The court accepted that the necessary and probable consequence of the conveyance was to place the Defendant's interest beyond creditors and treated this as establishing the requisite intent under s.74. |
| Re Party D (1887) 21 LR IR. 27 | Seminal authority establishing fraudulent intent can be inferred from consequences of the act (intent to delay, hinder or defraud creditors). | Invoked to support the inference of intent from the effect of the conveyance. |
| Company B v. Government Agency [2022] IECA 23 | Summarises parameters of the court's inherent jurisdiction to strike out proceedings. | Cited to explain the scope and thresholds for striking out on inherent jurisdiction grounds (abuse of process, bound to fail, frivolous and vexatious). |
| Party E v. Government Agency [2025] IECA 59 | Confirms approach to applications under Order 19, r.28 and inherent jurisdiction are fundamentally the same. | Used to justify that Order 19, r.28 principles govern the strike-out analysis applied by the court. |
| Party F v. Government Agency [2023] IECA 195 | It is impermissible to bring proceedings to challenge final orders made in earlier proceedings; such proceedings can constitute an abuse of process. | Applied to support the conclusion that re-litigating challenges to concluded proceedings is abusive. |
| Party G v. Party H [2025] IECA 154 | Illustrates abuse of process where parties re-litigate substantially the same matters; supports striking out. | Quoted to compare the present attempts to reopen concluded matters with prior abuse-of-process jurisprudence. |
| Party I v. Company C [2018] 1 W.L.R. 1734 | Authority that a second action covering same subject-matter as one struck out for abuse will itself be struck out unless special reason exists; identifies categories of abuse (contumelious conduct, want of prosecution). | Relied upon to show that where earlier proceedings were struck out for procedural abuse, repetition will be struck out. |
| Government Agency v. Party J [2022] 2 All E.R. 90 | Reinforces that claims struck out for intentional contumelious conduct or want of prosecution will usually be struck out if repeated. | Supported the court's view that the Defendant's repetition of prior challenges justified dismissal as abusive. |
| Party K v. Party L [2025] IEHC 661 | Cautions against making baseless allegations of fraud; highlights reputational harm from such allegations. | Used to criticise the Defendant's repeated, unsupported fraud allegations against parties and lawyers. |
| Party M v. Party N & Anor. [2025] IECA 77 | Observation on the toxic effect of fraud allegations and consequences even when struck out. | Quoted to reinforce the court's disapproval of baseless fraud allegations made by the Defendant. |
| Party O v. Company D [2023] IEHC 127 | Principles: motions to strike out are normally heard on affidavit; cross-examination of deponents permitted only where a material conflict of fact requires determination. | Applied to refuse the Defendant's applications for cross-examination of deponents as unnecessary for the strike-out application. |
| Company E v. Party P [2018] IEHC 355 | Cross-examination will not be permitted where conflicts relate to unsustainable or irrelevant issues on strike-out applications. | Relied upon to show the Defendant's proposed cross-examinations concerned irrelevant or unsustainable matters. |
| Party Q v. Company F [2021] 2 I.R. 44 | Principles on particulars: need to define issues and inform defendant of plaintiff's factual case; more detailed particulars may be required in complex cases. | Applied to hold the Plaintiff's pleaded case provided sufficient particulars; the Defendant failed to identify inadequate particulars. |
| Party R v. Government Agency (No. 5) [2001] 4 I.R. 463 | Describes jurisdiction to make Isaac Wunder (litigation restriction) orders where a person habitually institutes vexatious or frivolous proceedings. | Considered and rejected as inapplicable: the Plaintiff's enforcement proceedings were not shown to be vexatious or frivolous. |
| Party T v. Party U [2026] IESC 2 | Recent Supreme Court discussion of remedies to restrain vexatious litigation, including striking out and litigation restriction orders. | Referenced to note available remedies and the relevance of practice directions on litigation restriction orders. |
| Party V v. Company G [2019] IECA 256 | Rule that a defendant who enters appearance without first challenging service waives objection to service. | Applied to dismiss the Defendant's service objection: entry of appearance had waived any challenge to service. |
| Party A v. Party W and ors. [2025] IEHC 448 | Authority addressing the legitimacy of claims that a third party is "guardian and next friend" without legal basis. | Used to note prior observations that the Defendant's son (Individual) had no legal basis for claimed roles and to inform the court's approach to his participation in the litigation. |
Court's Reasoning and Analysis
The court proceeded in stages.
1. Statutory threshold under s.74: The court adopted the tripartite formulation of proof from authority (existence of a conveyance; conveyance made with intent to defraud creditors; challenger prejudiced). It accepted that there was a conveyance and that its necessary and probable consequence was to put the Defendant's interest beyond creditors, which supports an inference of fraudulent intent. The Plaintiff's status as an unsatisfied judgment creditor established prejudice. On the available affidavit evidence the Plaintiff's claim was stateable and strong.
2. Strike-out analysis: The court set out Order 19, r.28 RSC and the parameters of the inherent jurisdiction to strike out (including the burden on the moving party and the high threshold). Applying those tests and relevant authorities, the court concluded the Defendant could not show the Plaintiff's claim was devoid of merit, bound to fail, frivolous or vexatious. Therefore striking out on that basis was not warranted.
3. Abuse of process: Separately, and notwithstanding the foregoing, the court concluded that bringing these Motions repeating challenges already finally concluded in prior proceedings constituted an abuse of process. The court relied heavily on prior rulings (including the ex tempore ruling by Judge Ferriter and appellate authority) holding that the Defendant had definitively lost the right to re-litigate these matters through contumelious delay and related conduct. The court found that the Motions were an attempt to circumvent previous final orders.
4. Interlocutory relief: The court addressed each head of interlocutory relief sought by the Defendant and found them misconceived or without stateable basis: cross-examination was unnecessary (no material conflict requiring oral evidence); particulars were adequate; inspection and production requests lacked a stateable basis; service objections were waived by appearance; there was no basis to order production of the Defendant's former solicitor's file; and an Isaac Wunder / litigation restriction order was inapplicable to the Plaintiff.
5. Conduct of third party: The court noted the Defendant's son (Individual) had improperly inserted himself into proceedings and that his asserted roles lacked legal foundation. The court observed this conduct as part of the abusive pattern and indicated it may consider orders against the Individual at hearing.
Holding and Implications
DISMISSED
Holding: The Defendant's Motions (the 2019 Motion and the 2025 Motion) are dismissed as devoid of substance and an abuse of process. The court listed the matter for further hearing on costs, directions for setting down for trial and related matters on 19 May 2026 at 10:30.
Implications: The direct effect is that the Plaintiff's action under s.74 proceeds; the Defendant may not re-litigate matters conclusively determined in prior proceedings. No new legal precedent was established; the decision applies established strike-out, abuse-of-process and s.74 principles to this factual matrix. The court signalled the possible future use of litigation restriction measures and the potential for orders against a third party (the Individual) who has actively participated without legal status.
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