Mars Capital Finance Ireland Designated Activity Company v Walshe

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 25 November 2025
• Neutral Citation: [2025] IEHC 661
• Docket Number: RECORD NO. HCA2025/0000020

Between

Mars Capital Finance Ireland DAC

Plaintiff

and

Gerard Walshe

Defendant

[2025] IEHC 661

RECORD NO. HCA2025/0000020

THE HIGH COURT

Possession of property – Mortgage – Credible defence – Plaintiff seeking possession of property – Whether the defendant established a credible defence

Facts: The plaintiff, Mars Capital Finance Ireland DAC, applied to the High Court for possession of certain property. The property in question was described as follows in the schedule to the Civil Bill: “All that and those the property at Lisdeen, Kilkee, Co. Clare comprised in folio CE33286F County Clare”. Noting the provisions of Ord. 5B of the Circuit Court Rules (which concerns, inter alia, legal proceedings for possession) and guided by the principles articulated in Bank of Ireland Mortgage Bank v Cody [2021] IESC 26 and in Start Mortgages DAC v Ryan [2021] IEHC 719, it seemed to Heslin J appropriate to keep in mind a number of questions when examining the evidence in the case, namely: (i) Are the relevant monies secured (e.g. by way of mortgage)? (ii) Has there been default, resulting in the secured monies having become due? (iii) Is the application made bona fide with a view to realising the security? If those three questions were answered in the affirmative, a fourth question arose, namely: (iv) Has the defendant, Mr Walshe, established a credible defence? The gravamen of all the defendant’s submissions was to argue that the folio was wrong and that neither Allied Irish Banks plc nor the plaintiff should have been registered, in turn, as the owner of the charge in question.

Held by Heslin J that he would answer the questions posed in this judgment as follows: (1) Are the relevant monies secured in this case e.g. by way of mortgage? The answer is yes, without any doubt. (2) Has there been default, resulting in the secured monies having become due? Again, yes, without doubt. (3) Is the application made bona fide with a view to realising the security? Once more, the answer is yes. Heslin J held that, as to the fourth question, namely, whether the defendant has established a credible defence, the answer is a resounding no. Heslin J held that, in an attempt to oppose the plaintiff's application, the defendant had proffered nothing more than a series of ‘bald’ assertions which were fatally undermined by the evidence (as well as a wholly inappropriate assertions of fraud or wrongdoing by the plaintiff, which should never have been made).

Heslin J held that it was appropriate to grant the relief sought by the plaintiff. Heslin J held that, in circumstances where the defendant had no entitlement to possession of the property and had made no payment for in excess of 14 years, he must make immediate arrangements to vacate the property.

Relief granted.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 25 ^th day of November 2025

Introduction

1 . A hearing of the plaintiff's application for possession of certain property took place on 30 October 2025. Mr. Newman B.L. represented the plaintiff. The defendant represented himself and was accompanied by an adult son who provided him with certain assistance.

A de novo hearing

2 . For the defendant's benefit, it is necessary to point out that the will of the Irish people, as expressed in s. 37 of the Court of Justice Act, 1936, is that an appeal in this type of civil action, where no oral evidence was given in the Circuit Court: “ … shall be heard and determined by one judge of the High Court sitting in Dublin and shall be so heard by way of rehearing of the action…”.

3 . As the mandatory term shall makes clear, this Court is required to conduct a re-hearing, often referred to a de novo hearing (literally, ‘from the beginning’) i.e. an entirely new trial which is conducted as if the first hearing never happened.

4 . A de novo hearing is different from other appeals, which typically review the earlier decision for errors, be they of fact or law. In a de novo hearing, this Court does not defer to any views expressed or findings made in the Circuit Court. I emphasise the foregoing in this judgment (and pointed it out to the defendant during the hearing) because of his repeated reference to orders made in the Circuit Court and what he submitted to be views expressed by the learned judge in the court below.

This Court's role

5 . As I pointed out to the defendant in court, the hearing before me was an entirely ‘fresh’ one, with my role being to consider the evidence and to make an independent decision based on an application of the relevant law to the facts disclosed in the evidence (the standard being the ‘civil’ one, i.e. on the balance of probabilities). Having made the foregoing clear, I now turn to the facts.

Civil Bill

6 . The plaintiff issued the relevant Civil Bill for possession on 9 November 2022 (“the Civil Bill”). The special indorsement to the Civil Bill sets out the claim and, in the manner I will presently come to, each plea is averred to in the affidavit sworn, on 1 November 2022 by Mr. Ronan Hopkins, a manager employed by the plaintiff, who was authorised to swear on its behalf (the “grounding affidavit”).

Property

7 . The property in question is described as follows in the schedule to the Civil Bill:

“All that and those the property at Lisdeen, Kilkee, Co. Clare comprised in folio CE33286F County Clare” (the “property”).

Jurisdiction

8 . The property's description is immediately followed by: “The Circuit Court has jurisdiction to hear these proceedings pursuant to s. 22 of the Courts (Supplemental Provisions) Act, 1961 (as amended) as the market value (within the meaning of section 2 (1) of the said Act) of the property does not exceed €3,000,000”. There is no issue raised in relation to jurisdiction.

Grounding affidavit

9 . Having averred to his position as manager in the plaintiff and his authority and to swear the affidavit, Mr. Hopkins explicitly avers: “I make this affidavit from facts within my own knowledge and from information derived by me from my examination of the plaintiff's books, accounts and records which are in my custody and under my control. The statements I make herein which relate to my own acts and deeds are true and the statements I make herein which relate to the acts and deeds of others I believe to be true”. No issue has been taken with the foregoing averments.

The Folio

10 . After verifying the contents of the Civil Bill to be true, Mr. Hopkins describes the property and exhibits a certified copy of Land Registry Folio CE33286 County Clare (“the Folio”). Part 2 of the Folio, which deals with ownership, confirms that, as of 12 January 2001 “ Gerard Walshe (businessman) of Lisdeen, Kilkee, County Clare is full owner”. The entry goes on to note that a Land Certificate was issued on 31 March 2004 to Cashin & Associates, Solicitors, of 3 Francis Street, Ennis.

Part 3

11 . Turning to Part 3 of the Folio, which concerns “ Burdens and Notices of Burdens”, entry number 3, dated 27 ^th February 2004, is as follows:

“Charge for present and future advances repayable with interest. Allied Irish Banks Plc is owner of this charge… Note: the ownership of this charge has been transferred. See entry no. 10.”

Entry No. 10

12 . Entries 5 to 9, inclusive, comprise the registration, as burdens, of a number of judgment mortgages, whereas entry number 10, dated 4 June 2021, is as follows:

“MARS Capital Finance Ireland Designated Activity Company is owner of the charge registered at entry no. 3.”

13 . In light of the foregoing, and for the benefit of the defendant, it is appropriate to refer to certain legislative provisions and legal principles, given that (i) the property in question is ‘registered’ land; and (ii) the plaintiff is the owner of the charge registered as a burden on the defendant's Folio.

The creation of a charge

14 . The creation of a charge and the effect of same on registered land is dealt with at s. 62(1) of the Registration of Title Act, 1964 (the “1964 Act”) which provides:

“…(2) A registered owner of land may, subject to the provisions of this Act, charge the land with the payment of money either with or without interest, and either by way of annuity or otherwise, and the owner of the charge shall be registered as such.”

15 . It will be recalled that entry number 3 at Part 3 of the defendant's Folio is a charge, dated 27 February 2004, in favour of Allied Irish Banks plc.

Transfer of a charge

16 . The transfer of a charge is dealt with at s. 64 of the 1964 Act, which states:

• (1) The registered owner of a charge may transfer the charge to another person as owner thereof, and the transferee shall be registered as owner of the charge.

• (2) There shall be executed on the transfer of a charge an instrument of transfer in the prescribed form, or in such other form as may appear to the Registrar to be sufficient to transfer the charge, but until the transferee is registered as owner of the charge, that instrument shall not confer on the transferee any interest in the charge.

• (3) The Registrar shall deliver to the registered transferee a certificate of charge in the prescribed form.

17 It will be recalled that entry number 3, Part 3, went on to state that “ the ownership of this charge has been transferred” and referred to entry number 10. Hence, a transfer was executed in compliance with s. 64 (2) and, as noted earlier, entry number 10 confirmed that the plaintiff is now ( per the entry at number 10) the owner of the charge registered at entry number 3 (originally in favour of AIB plc).

The transferee of a charge

18 Bearing in mind that the plaintiff is the registered “ transferee” of the charge, s. 64 (4) of the Act provides:

“(4) On registration of the transferee of a charge, the instrument of transfer shall operate as a conveyance by deed within the meaning of the Conveyancing Acts, and the transferee shall—

(a) have the same title...