Anderson and Another v Fitzgerald and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 19 June 2023 |
| Neutral Citation | [2023] IEHC 309 |
| Court | High Court |
| Docket Number | 2022 No. 194 SP |
[2023] IEHC 309
2022 No. 194 SP
THE HIGH COURT
Paul Brady for the plaintiffs instructed by OSM Partners LLP
Ronnie Hudson for the defendants instructed by Maxwell Mooney & Company
JUDGMENT of Mr. Justice Garrett Simons delivered on 19 June 2023
The within proceedings seek to recover possession of lands pursuant to a charge registered under Section 62 of the Registration of Title Act 1964. This judgment is delivered in respect of an application to adjourn the proceedings pending an adjudication by the Residential Tenancies Board. The application to adjourn is moved by the second defendant. The second defendant submits that she has the benefit of a tenancy under Part 4 of the Residential Tenancies Act 2004 and that the tenancy can only be lawfully terminated by the service of a valid notice of termination. No such notice has been served. The second defendant has made a referral to the Residential Tenancies Board and submits that the within proceedings should be adjourned pending an adjudication on that referral.
The adjournment application presents the following issue of principle: whether jurisdiction to determine the validity of the supposed tenancy lies with the High Court or with the Residential Tenancies Board (“ RTB”). The resolution of this issue requires consideration of the nature of the RTB's statutory jurisdiction under Part 6 of the Residential Tenancies Act 2004.
The within proceedings were instituted by way of special summons on 27 October 2022. The principal relief sought in the proceedings is that the defendants deliver up possession of certain lands to the plaintiffs.
The second plaintiff is the registered owner of a charge in respect of the lands under Folio 32609 F, County Clare (“ the mortgaged property”). The entry on the folio recording the second plaintiff's ownership of the charge is dated 12 September 2019. The charge had originally been in favour of ACC Bank plc. The charge had been created prior to 1 December 2009, and, accordingly, these proceedings benefit from the saver under the Land and Conveyancing Law Reform Act 2013.
The first plaintiff asserts that he has been appointed as a receiver over the mortgaged property by the second plaintiff in the exercise of its powers under the deed of mortgage and charge.
The first and second defendants are brother and sister. The first defendant is the registered owner of the mortgaged property. It is alleged that the first defendant created a tenancy over the mortgaged property in favour of his sister, i.e. the second defendant, on 1 December 2015. A copy of what purports to be a tenancy agreement has been exhibited. The supposed tenancy is stated to be for a period of seven years. The supposed tenancy has not been registered with the Residential Tenancies Board.
The second defendant avers that she did not pay any rent for the first fourteen months of the term of the supposed tenancy, but that thereafter she had paid rent directly to her brother for a period of approximately four or five years. The second defendant further avers that on or about 30 November 2021 she had been provided with a bank account number of “ a company called Newgrange and directed to pay the rent to that company in place of” the first defendant. The identity of the person giving these directions has not been disclosed in the grounding affidavit. The second defendant avers that she has paid “ rent” into this bank account since that date. The second defendant has exhibited her personal bank statements showing monthly payments of €600 from 2 December 2021 onwards. The narrative on these bank statements describes the payment as “* MOBI RENT”. It is not apparent whether the same narrative appears on the payee's bank account. It is asserted on behalf of the second defendant that the making of these monthly payments has given rise to a tenancy as between her and “ Newgrange”.
The plaintiffs refute this interpretation of events. It is submitted on their behalf that the deed of mortgage and charge contains a covenant against the creation of any leases without the prior written consent of the lender, i.e. a so-called “ negative pledge clause”. It is further submitted that the bank account to which monies have been remitted by the second defendant is an account that is held and maintained by Pepper Finance Corporation (Ireland) DAC and not any other entity. The account is denoted by the name “ PFCI Newgrange EUR Collections”. The narrative of payments made to this bank account includes a reference to the first defendant's loan account. A statement in respect of the first defendant's loan account has been exhibited and this shows that the monthly payments of €600 have been credited against the outstanding debt. Accordingly, it is submitted that such payments have been applied in reduction of the debt outstanding under the loan account and are not properly characterised as a form of rent. It is denied, therefore, that any tenancy can have arisen, whether by way of a tenancy by estoppel or otherwise.
The second defendant issued a motion on 24 February 2023 seeking to adjourn the within proceedings pending an adjudication by the Residential Tenancies Board. An application for a mediation had been submitted to the RTB on behalf of the second defendant in January 2023. Thereafter, the second defendant successfully sought to change the application to one for an adjudication (rather than a mediation).
The nature of the dispute in respect of which an adjudication is sought is summarised as follows in the application form lodged with the RTB:
“Original tenancy entered into on 01/12/2015 with my brother David Fitzgerald. On 30/11/21 I was told that Newgrange were taking over and I was to pay rent to their bank account which I did. Without even serving a notice on me to terminate the lease even though I am a tenant and entitled to continuing tenancy, Pepper who are the agents of Newgrange brought court proceedings against me to seek possession, ignoring my lease. I am seeking to continue my lease for another 6 years and deny that either Pepper or Newgrange are entitled to evict me or to take possession. I understand from a letter received by my brother that his loan was sold to Otterham in December […]”
The identity of the supposed landlord is not readily apparent from the application form: reference is made variously to “ Pepper”, “ Newgrange” and “ Otterham”. In this regard, the RTB raised a query by emails dated 3 April and 11 April 2023. The RTB official described the language used in the application form as “ ambiguous” and sought confirmation of the identity of the landlord.
The RTB appears to have taken the view that this query was not responded to within the 30 day period specified, and, accordingly, the RTB closed its case in relation to the matter: see letter dated 9 May 2023 from the RTB to the second defendant's solicitors. The letter closing the case indicated, however, that the case would be reopened if the requested documentation was provided within 30 days.
It is suggested in the affidavit filed on behalf of the second defendant on 16 June 2023 that the additional information sought had been provided to the RTB within the 30 days allowed under the letter of 9 May 2023. As of the date of this judgment, however, there is no evidence of any formal confirmation from the RTB to the effect that it has reopened its case file in respect of the request for adjudication. For the purpose of this judgment only, I am prepared to assume, without deciding, that the application for adjudication has been reactivated.
The motion to adjourn these proceedings was heard on 12 June 2023 and judgment was reserved for one week, i.e. to today's date. In circumstances where the correspondence with the RTB, which had been exhibited on behalf of the second defendant, was incomplete, the second defendant was given liberty, at the conclusion of the hearing, to file a further affidavit by 16 June 2023 exhibiting the following three items: (i) a copy of the application for an adjudication (as opposed to a mediation); (ii) a complete set of the correspondence with the RTB; and (iii) any further communication received in the interim from the RTB confirming that the case file had been reopened. It was explained to the parties that the oral hearing on the motion had concluded and that no further submissions would be entertained.
An affidavit was duly filed on 16 June 2023. As to item (i), it has been confirmed that a second application was not submitted as such; rather, the RTB was requested to treat the original application for...
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Vodo v The Residential Tenancies Board
...assistance from the decision of the High Court (Simons J.) in James Anderson and Pepper Finance Corporation (Ireland) DAC v. Fitzgerald [2023] IEHC 309. While that case was concerned with a contested application to adjourn proceedings seeking to recover lands pursuant to section 62 of the R......