KBC Bank NV [Trading as KBC Bank NV Dublin] v Smith and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Nessa Cahill
• Judgment Date: 02 September 2025
• Neutral Citation: [2025] IEHC 481
• Docket Number: Record Number 2018/1814P

KBC Bank NV acting through KBC Bank NV Dublin

Plaintiff

and

Gordon Smith, Linda Hussey and Ben Gilroy and Persons Unknown Occupying the Premises at 37 Hamlet Avenue, Chieftains Way, Balbriggan, County Dublin

Defendants

[2025] IEHC 481

Record Number 2018/1814P

THE HIGH COURT

Vacation of property – Substitution – Strike out – Plaintiff seeking either summary judgment or an order striking out the defence – Whether the defence as pleaded by the defendants disclosed no reasonable defence

Facts: KBC Bank Ireland plc (KBCI) issued proceedings on 27 February 2018 for the purpose of obtaining orders requiring the defendants, Mr Smith, Ms Hussey, Mr Gilroy and persons unknown occupying the property at No. 37 Hamlet Avenue, Balbriggan, comprised in Folio 167343F of the Register of the County of Dublin, to vacate the property, of which Mr Smith was formerly the sole registered owner. Orders were also sought requiring the defendants not to obstruct or prevent the taking of possession of the property by KBCI. The Circuit Court had previously made an order granting possession of the property to KBCI. That order had not been appealed and an attempt to challenge it by way of judicial review was rejected by the High Court and the Court of Appeal. The first and second defendants remained in occupation of the property. Following the grant of an interim and interlocutory injunction in the proceedings, orders were made for the attachment and committal of each of the defendants. The property was ultimately vacated and it was then sold in January 2019. By a substitution motion, KBCI sought orders substituting (or declaring to have been substituted) KBC Bank NV Dublin Branch as plaintiff to the proceedings. By a strike out motion, the plaintiff sought either summary judgment or an order striking out the defence.

Held by the High Court (Cahill J) that the substitution of KBC NV Bank as plaintiff in place of KBCI occurred by operation of law on 1 December 2023 (the date on which the business, rights, obligations, assets and liabilities of KBCI were transferred to KBC NV Bank); this was the statutory effect of s. 41 of the Central Bank Act 1971. Given the Oireachtas had legislated for that outcome, Cahill J held that no court order was necessary or appropriate to effect the substitution of the parties.

Cahill J was satisfied that there was no live issue remaining as between the plaintiff and the defendants to the proceedings (save for the question of undertakings as to damages) and that the plaintiff no longer had an interest in the property. Consequently, she did not consider that it was appropriate to grant the relief sought by the plenary summons. However, given the existence of the undertakings as to damages, she found that the question of whether there was a valid defence to the case as originally pleaded could - to that limited extent - still be a potentially live one. She was satisfied that, even if the claim was still a live one, the defence as pleaded (and the defence as proposed to be amended) by the defendants disclosed no reasonable defence, were bound to fail and were an abuse of process. She therefore granted an order striking out the defence and releasing the plaintiff from the undertakings as to damages previously furnished.

Substitution order refused. Strike out order granted.

JUDGMENT of Ms Justice Nessa Cahill delivered on 2 September 2025

OVERVIEW

1 These Proceedings were issued by KBC Bank Ireland plc (“ KBCI”), on 27 February 2018 for the purpose of obtaining orders requiring the Defendants to vacate a property at No. 37, Hamlet Avenue, Balbriggan, now comprised in Folio 167343F of the Register of the County of Dublin, of which Mr Smith was formerly the sole registered owner (“ the Property”). Orders were also sought requiring the Defendants not to obstruct or prevent the taking of possession of the Property by KBCI.

2 The essential background facts are that the Circuit Court had previously made an order granting possession of the Property to KBCI (“ the Possession Order”); this Order had not been appealed; and an attempt to challenge it by way of judicial review was rejected by the High Court and the Court of Appeal.

3 The First and Second Defendants remained in occupation of the Property. Following the grant of an interim and interlocutory injunction in these Proceedings, orders were made for the attachment and committal of each of the Defendants. The Property was ultimately vacated and it was then sold in January 2019.

4 There are two motions addressed in this Judgment.

5 By the first motion (“ the Substitution Motion”), KBCI seeks orders substituting (or declaring to have been substituted) KBC Bank NV Dublin Branch as Plaintiff to these Proceedings. For the reasons that will be explained in this Judgment, I am satisfied that the substitution of KBC NV Bank as plaintiff in place of KBCI occurred by operation of law on 1 December 2023 (the date on which the business, rights, obligations, assets and liabilities of KBCI were transferred to KBC NV Bank). This is the statutory effect of section 41 of the Central Bank Act 1971 (as amended) (“ the Act of 1971”). Given the Oireachtas has legislated for that outcome, no Court order is necessary or appropriate to effect the substitution of the parties.

6 By the second motion (“ the Strike Out Motion”), the Plaintiff seeks either summary judgment or an order striking out the Defence. For the reasons set out below, I am satisfied that there is no live issue remaining as between the Plaintiff and the Defendants to these Proceedings (save for the question of undertakings as to damages) and that the Plaintiff no longer has an interest in the Property. Consequently, I do not consider that it is appropriate to grant the relief sought by the plenary summons. However, given the existence of the undertakings as to damages, the question of whether there was a valid defence to the case as originally pleaded could – to that limited extent – still be a potentially live one. For the reasons set out below, I am satisfied that, even if the claim was still a live one, the defence as pleaded (and the defence as proposed to be amended) by the Defendants disclose no reasonable defence, are bound to fail and are an abuse of process. I will therefore grant an order striking out the Defence and releasing the Plaintiff from the undertakings as to damages previously furnished.

BACKGROUND

7 On 22 April 2005, IIB Homeloans Limited (“ IIB”) agreed to advance a loan of €200,000 to Mr Smith (“ the Loan”). It was a condition of the Loan that it be secured on the Property. The indenture of mortgage was dated 14 June 2005 (“ the Mortgage”).

8 The chain of title to the Loan and Mortgage is described by Mr Danny Noone in his affidavit grounding the Strike Out Motion. He states that IIB assigned the beneficial interest in a portfolio of loans to Phoenix Funding 2 Limited in June 2008 and that this included the Mortgage. The mortgage sale agreement is exhibited to his affidavit.

9 He explains that IIB converted to an unlimited company, IIB Homeloans, by way of special resolution passed on 30 September 2008. By way of further special resolution dated 2 October 2008, IIB Homeloans changed its name to KBC Mortgage Bank Company. The banking business of that entity was then transferred to KBCI on 26 June 2009. This was pursuant to a scheme of transfer signed on 26 February 2009 and approved under section 33 of the 1971 Act. Mr Noone states that the legal title to the Loan and Mortgage at all material times remained with the Plaintiff (which includes the precursor entities just mentioned).

10 It is not in dispute that Mr. Smith repeatedly failed to make repayments on the Loan. On 23 July 2013 the Plaintiff wrote to Mr Smith demanding repayment in the sum of €210,623.99 and further informing him of the intention to initiate legal proceedings. By letter dated 6 August 2013 the Plaintiff's solicitors demanded Mr Smith deliver up vacant possession of the Property.

11 On 1 May 2014, the Plaintiff issued a civil bill in Dublin Circuit Court seeking an order for possession of the Property (“ the Circuit Court Proceedings”). On 29 April 2016, the Circuit Court made the Possession Order. There was no appeal against that order. An application by Mr Smith for it to be judicial reviewed was rejected by the High Court (Humphreys J.) by judgment delivered on 24 January 2017 ( Smith v. Considine [2017] IEHC 22). Mr Smith's appeal against that decision was dismissed by the Court of Appeal on 3 April (there having been no attendance by Mr Smith).

12 In the meantime, an execution order was made and lodged with the Sheriff and, on 26 February 2018, the Sheriff attended at the Property and executed the Circuit Court Order, with Mr Smith and Mrs Smith (née Ms Hussey) being escorted from the Property. However, later that evening, the Property was forcibly entered by a large number of persons. In a judgment delivered on 23 March 2018 in the context of an appeal by Mr Gilroy against the interlocutory injunction subsequently granted by the High Court (“ the Court of Appeal Judgment”), the Court of Appeal recounts that “ Mr. Smith and a large group of his supporters apparently engaged in unseemly conduct in their efforts to retake possession of the property” (para 10). On the evening of 26 February 2018, Mr Smith and Mrs Smith (née Hussey) entered, and resumed occupation of, the Property.

13 These Proceedings were then issued on 27 February 2018, seeking orders requiring the Defendants and other persons to vacate the Property and not obstruct or interfere with KBCI's right to possession. As of that date, the total balance of €274,887.70 was outstanding on the Loan. An interim order was made by the High Court (Baker J.) on 27 February 2018 requiring the Defendants (and any other persons on notice of the order) to deliver up possession. An interlocutory...