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Kenny and Ors v Fennell and Ors, Everyday Finance Designated Activity Company [Trading as Link Financial] v Kenny and Ors (Approved)
Summary of Judgment — Judge Dignam (6 May 2026)
Factual and Procedural Background
The Borrowers (two individual Plaintiffs) own a retail property at "[Number] Main Street, The City" (the Property). Company A (the third-named Plaintiff in the plenary proceedings) trades from the Property. By deed of mortgage dated 4 April 1997 the Borrowers mortgaged the Property to Company C. Advances were made under facilities with repayment dates in November 2016. Company B acquired Company C's interest in the mortgage and the facilities by deeds executed 14 June 2019 and sent notice letters to the Borrowers in June 2019. The Borrowers defaulted on repayment; demands were sent in July 2020. Company B appointed two Receivers by deed of appointment dated 11 June 2021. Correspondence and attempts to obtain tenancy documentation followed. Receivers instructed a security firm (Company E) to change the locks and took possession on 29 September 2022. The Borrowers and Company A issued plenary proceedings and sought interlocutory injunctions; Company B issued special summons seeking an Order for Possession. Both matters were heard together before Judge Dignam.
Legal Issues Presented
- Whether Company B, as assignee of Company C's mortgage, is entitled to an Order for Possession of the Property.
- Whether the Receivers or Company B lawfully took and/or retained possession of the Property such that this would amount to an arguable defence to a summary possession claim.
- Whether Company A's occupation/tenancy binds Company B notwithstanding the mortgage covenant prohibiting letting without prior written consent.
- Whether issues raised by the Borrowers (including alleged third‑party judgment proceeds, attempted sale of other property, and inclusion of amounts outside the mortgage) amount to an arguable defence requiring remittal to plenary hearing.
- Whether, if an Order for Possession is granted, a discretionary stay should be imposed and on what terms.
Arguments of the Parties
Plaintiffs (the Borrowers) and Company A
- The Receivers had no power under the mortgage to take possession and/or did not have authority to retain possession; the taking of possession was not peaceable and was unlawful.
- The manner of possession gives rise to claims for damages (including exemplary damages) and a counterclaim if leave to defend is granted.
- Company A's occupation of the Property dates from the mortgage and, with Company C's knowledge/acquiescence, gives rise to rights (including a long lease or binding tenancy) which should bind Company B.
- The Borrowers have or will recover substantial judgment proceeds from a third party which could be applied to discharge indebtedness; a proposed sale of other property was obstructed by Company B's refusal to consent.
- Some claimed amounts in Company B's statements include sums secured by a personal guarantee not covered by the mortgage.
Company B
- Company B acquired Company C's interest in the mortgage and the loan facilities by the exhibited deeds of transfer and conveyance and is entitled to enforce the security.
- The Borrowers defaulted on the facilities (due 1 November 2016), default is not disputed, and default engages the mortgagee's entitlement to possession of unregistered land under the 1997 mortgage.
- Company B is entitled to possession irrespective of Company A's occupation; the Borrowers' factual points do not amount to an arguable defence requiring remittal to plenary hearing.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| National Irish Bank Ltd v Graham [1995] 2 IR 244 | When special summons may be remitted to plenary hearing where defences are arguable or issues of fact/law require fuller consideration. | Used to explain summary nature of special summons and threshold for summary disposal vs remittal. |
| ACC Loan Management Ltd v Gillespie [2014] IEHC 654 | Order 38, rule 9 summary judgment powers and the court's approach to whether to give judgment on special summons. | Quoted to set out principles governing summary possession and when plenary hearing is required. |
| Danske Bank v. Durkan New Homes Limited [2010] I.E.S.C 22 | Guidance on summary procedures and threshold for summary determination (in context of Order 37, rule 7). | Applied as authority on limits to summary determination and need to remit where defendants have real or bona fide defences. |
| Bank of Ireland v. Educational Building Society [1999] 1 I.R. 220 | Remittal appropriate where defendant identifies issues of fact requiring exploration before legal issues decided. | Relied upon for principle that a real or bona fide defence requires opportunity for full hearing. |
| Aer Rianta c.p.t. v. Ryanair Limited [2001] 4 I.R. 607 | Tests for summary disposal: whether it is "very clear" defendant has no case and whether issues are simple/easily determined. | Used to test whether defendants had arguable defences to resist summary possession. |
| McGrath v. O'Driscoll [2007] 1 ILRM 203 | Court may resolve questions of law on summary motion only where issues are straightforward and risk of injustice is low. | Applied as cautionary principle on summary determination of legal/construction issues. |
| National Westminster Bank v Skelton [1993] 1 All ER 242 | Authorities on mortgagee's inherent right to possession where legal estate conveyed, absent express or implied contract to the contrary. | Supported proposition that mortgagee of unregistered land (pre-2009 conveyance) has inherent right to possession. |
| N17 Electrics v Fennell [2012] IEHC 228 | Principles on when a lease/occupation will bind a mortgagee and effect of mortgagee's awareness of tenancy/payments. | Used to explain that mere knowledge of tenancy and rent applied to mortgage payments is not, without more, enough to bind mortgagee. |
| Launceston v Burke [2017] IESC 62 | Possession proceedings focus on default; ancillary contractual penalty issues are not determinative of possession relief. | Quoted to support that possession claim is distinct from other contractual disputes over sums due. |
| Bank of Ireland v Blanc [2020] IEHC 18 | When determining possession only, the court considers whether default existed at initiation of possession process, not precise sums for judgment. | Applied to emphasise focus on default rather than exact outstanding amount when granting possession. |
| Anglo Irish Bank PLC v. Fanning [2009] IEHC 141 | Guidance that default, not exact amount, is the relevant issue where possession only is sought. | Reinforced that the existence of default is the key question in possession proceedings. |
| McGirr & anor v Everyday Finance DAC & anor [2022] IEHC 612 | Authority relied upon regarding receivers acting as agents of mortgagee and their powers. | Cited by Company B/Receivers to support argument that Receivers had authority to take possession as agents of the mortgagee. |
| Charleton v Hassett [2021] IEHC 746 | Authority on whether repossession/possession-taking was peaceable and lawful. | Relied on by Plaintiffs to challenge the manner of possession; court nevertheless held such challenge did not amount to an arguable defence to possession. |
| Hafeez v CPM Consulting Ltd [2020] IEHC 536 | Authority cited regarding peaceable entry and receivership conduct. | Cited in the parties' submissions on whether possession was taken peaceably. |
| Murphy v Hooton [2014] IEHC 266 | Statement that acquiescence or consent by a lender must be clear and the onus on defendant to establish it; oral/uncertain arrangements insufficient. | Applied to conclude that evidence of acquiescence by Company C/Company B was not sufficiently clear to bind Company B to a tenancy. |
Court's Reasoning and Analysis
1. The Court began by stating the summary nature of special summons proceedings and recalled authorities establishing that summary relief may only be granted where there is no arguable defence or no issue requiring plenary investigation.
2. On the law governing possession of unregistered land mortgaged prior to 1 December 2009, the Court accepted the established principle that a legal mortgage conveying the legal estate carries an inherent right to possession; contractual terms may vary that right but, on these facts, clause 8.02 of the 1997 mortgage expressly permitted the mortgagee to enter into possession without consent or notice.
3. The Court found default by the Borrowers was established and not meaningfully disputed; the precise amount originally stated was adjusted during the hearing but that did not defeat the existence of default or Company B's entitlement to possession.
4. The Court was satisfied that Company B had established transfer of Company C's interest in the mortgage and facilities by the exhibited deeds and, absent specific challenge to their validity, Company B was entitled to enforce the security.
5. The Plaintiffs' arguments that the Receivers lacked authority or had taken possession unlawfully were acknowledged as potential bases for damages, but the Court held that even if unlawful conduct occurred it did not constitute an arguable defence to Company B's claim for possession by the mortgagee. The Court treated receivership/agency and the manner of entry as separable issues: wrongful conduct could give rise to remedies in plenary proceedings but did not negate the mortgagee's entitlement to possession.
6. On occupation by Company A, the Court applied authority that mere knowledge by the mortgagee of an occupier/tenant and the application of rent to mortgage payments is insufficient, without clearer evidence of written consent or conduct amounting to clear acquiescence, to bind the mortgagee. The Court found the Borrowers/Company A had not adduced sufficiently clear evidence of prior written consent or conduct amounting to acquiescence.
7. Other asserted defences (prospective recovery of third‑party judgment proceeds, proposed sale of other property, inclusion of amounts outside the mortgage) did not amount to an arguable defence to possession since default existed and any recovery/adjustment could be relevant only to a stay or to subsequent account/costs/damages issues.
8. Accordingly, the Court concluded summary judgment in the form of an Order for Possession was appropriate, while reserving remedies for wrongful conduct to the plenary proceedings and indicating its preliminary view that a reasonably lengthy stay of the possession order should be considered.
Holding and Implications
ORDER FOR POSSESSION GRANTED
Holding: Company B is entitled to an Order for Possession of the Property. The Court found Company B holds the relevant transferred mortgage/facilities, the Borrowers are in default, and the asserted defences did not amount to an arguable defence requiring remittal to plenary hearing.
Implications:
- The plenary injunction application is rendered moot by the grant of the Order for Possession, subject to any stay.
- The Borrowers and Company A retain separate potential remedies (including claims for damages or exemplary damages) based on the Receivers' or Company B's conduct; those remedies should be pursued in plenary proceedings and are not a defence to possession.
- The Court indicated a preliminary view that a reasonably lengthy discretionary stay of the possession order should be considered; submissions on stay and costs were to be listed.
- No new legal principle was announced; the decision applied established authorities to the facts and resolved entitlement to possession against the Borrowers on summary grounds.
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