Doyle v Private Residential Tenancies Board

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 10 November 2015
• Neutral Citation: [2015] IEHC 724
• Court: High Court
• Date: 10 November 2015

[2015] IEHC 724

THE HIGH COURT

[No. 264 S.P./2014]

Doyle v Private Residential Tenancies Board

BETWEEN

MICHAEL DOYLE

PLAINTIFF/APPLICANT

AND

THE PRIVATE RESIDENTIAL TENANCIES BOARD

DEFENDANT/RESPONDENT

AND

TOM KAVANAGH

NOTICE PARTY

Landlord & Tenant – The Residential Tenancies Acts 2004-2009 – Residential tenancy agreement – Appeal against the decision of Private Residential Tenancies Board (PRTB) Tenancy Tribunal – Excess of jurisdiction – Appeal on point of law v judicial review

Facts: The applicant had filed an appeal against the decision of the Private Residential Tenancies Board (PRTB) Tenancy Tribunal holding that the notice of termination of tenancy served to the applicant by the notice party was invalid and directing him to pay the arrears of rent, on appeal from the decision of the PRTB. The applicant alleged that the said tribunal had no jurisdiction to make findings in relation to the payment of arrears of rent as the only point of dispute was the validity of the notice of termination. The respondent and notice party alleged that the appeal was improperly instituted under s. 123 (3) of the Residential Tenancies Acts 2004-2009 as there was no point of law involved in the proceedings and the appropriate way was to seek judicial review of the impugned decision.

Ms. Justice Baker dismissed the appeal of the applicant. The Court held that in an appeal on a point of law, the Court could not set aside the findings of primary fact, and also the inferences drawn from such facts, unless there was evidence to support such findings and the Court could reverse such findings only if the conclusion reached by the statutory bodies was based on an erroneous view of the law or the inferences were the ones that no reasonable decision-making body could draw. The Court held that a landlord could make a claim for arrears of rent under s. 75 (3) of the Residential Tenancies Act 2004 and the (PRTB) Tenancy Tribunal ipso facto had the jurisdiction to inquire into each relevant aspect of dispute including the dispute regarding arrears of rent irrespective of whether it was appealed or not. The Court held that the dispute resolution mechanism adopted by the Act of 2004 was meant to provide cheap and effective procedure and could not be equated with denial of natural or constitutional justice.

1 1. The applicant brings these proceedings by special summons pursuant to s. 123(3) of the Residential Tenancies Acts 2004 - 2009 (the "Act") in which he claims that the respondent, the Private Residential Tenancies Board (the "PRTB"), erred in law in determining a dispute between him and his landlord in respect of arrears in rent. The claims in the special summons may be broken down into three parts. First, a claim that the respondent erred in law in certain procedural approaches taken by it to the questions before it. Second, a claim that the respondent erred in determining that the applicant had a contractual obligation to pay rent to the notice party, a receiver appointed to a company which owned the lessor' s interest in the tenancy. Third, a claim for certain consequential orders varying and/or cancelling the determination order issued by the respondent on the 13 ^th June, 2014.

2 2. The respondent and the notice party were separately represented by solicitor and counsel, although each of them may be said to be representing the same interest in that they each sought to uphold the determination order made by the PRTB and each of them denied that any error of law occurred, whether in the procedural manner alleged by the applicant, or in the proper interpretation of the contractual matrix giving rise to the tenancy.

3 3. The respondent and the notice party each make a preliminary point that the proceedings are improperly constituted and that the claim of the plaintiff/applicant is more properly characterised as a claim amenable to judicial review, and that no point of law arises which may be appealed under the section.

Background facts

4 4. The applicant is a software developer and company director and on the 18 ^th December, 2008 entered into a residential tenancy agreement with one Mark McInerney in respect of a residential premises at Sienna, 3 Rockbrook Hall, Bray Road, Foxrock, Dublin 18, and where he has continued to live with his family. The initial rent was agreed at €5,000 per month and this was reduced by agreement on the 18 ^th December, 2010, to €3,000 per month.

5 5. The tenancy agreement was registered with the PRTB as is required by statute.

6 6. The initial letting was for 12 months certain, and was renewed from time to time, the last formal renewal being agreed between the applicant and Mr. Mclnerney on the 18 ^th December, 2012.

7 7. Shortly thereafter the applicant received a letter dated the 9 ^th April, 2013 from Tom Kavanagh, the notice party, notifying him that on the 22 ^nd March, 2013 he had been appointed as receiver over certain assets of a company, Cheval Construction Ltd. ("Cheval"), and that rent should henceforth be paid to the receiver. One payment in the sum of €2,000 was made by the applicant to the receiver in May 2014. No other payments have been made. A dispute arose between the receiver and the applicant as to the monthly rent, and the receiver ultimately accepted that he was bound by an agreement made before his appointment to reduce the rent to €3,000 per month. Nothing now turns on that disagreement.

8 8. The receiver served a notice of termination on the 11 ^th October, 2013, in respect of the tenancy and pursuant to s. 34 of the Act. The reason stated for the termination of the tenancy was "due to the breach of your tenancy obligation in that you failed to pay rent in accordance with the terms of the tenancy agreement, and your obligations under the Residential Tenancies Act 2004". Twenty four hours' notice was given and the applicant was required to deliver up possession on the expiration of the notice period.

9 9. On the 22 ^nd October, 2013, the applicant submitted an application for dispute resolution to the PRTB, pursuant to s. 78 of the Act of 2004, alleging that the notice of termination was invalid. The adjudicator on the 11 ^th December, 2013, made a determination that the notice of termination was valid. The matter was appealed by the applicant to the Appeals Board, and came up for hearing before the PRTB Tenancy Tribunal (the "Tribunal") on the 19 ^th May, 2014, when both parties were represented by a solicitor.

10 10. The Tribunal decision issued on the 5 ^th June, 2014, determined that the notice of termination was invalid by reason of non-compliance with ss. 34 and 67(3) of the Act of 2004. The PRTB, however, determined that the applicant should pay the sum of €40,098.63 by way of as arrears of rent within 28 days of the issue of the determination notice.

11 11. It is in respect of the determination that the applicant should pay the said sum in respect of arrears of rent that these proceedings are brought and the applicant argues that the PRTB had no jurisdiction to make this determination, as there was "no dispute or complaint before the PRTB, or before the adjudicator at first instance, in respect of any matter other than the invalidity of the notice of termination."

An appeal on a point of law

12 12. The applicant identifies certain issues as points of law in respect of which a statutory appeal is said to arise. The respondent asserts that the points raised are either points of fact or points more properly raised by way of judicial review, in that the applicant's argument is essentially one that the Tribunal exceeded its jurisdiction. It therefore falls first to me to determine whether these are questions of law or fact, or whether the decision of the Tribunal ought properly have been challenged in respect of some or all of its findings by way of judicial review.

13 13. The distinction between an appeal on a point of law created by a statutory appeal mechanism and a judicial review is one in respect of which there is some judicial authority, but the authorities point to some difficulty in defining the exact line of demarcation between them. Recently the Supreme Court considered the question in Fitzgibbon v. Law Society of Ireland [2014] IESC 48 where Clarke J. delivered a concurring judgment by which he offered what he described as "observations" on the distinction between forms of appeal, and considered how to characterise an appeal on a point of law from a statutory body or decision-maker, and distinguish it from other forms of appeal or review. He gave by way an example of an appeal on a point of law from a statutory body the type of appeal in this case, an appeal under s. 123(3) of the Residential Tenancies Act 2004.

14 14. As Clarke J. pointed out, there is an established jurisprudence as to the meaning of the term "appeal on a point of law" and he referred to the seminal judgment of Kenny J. in Mara v. Hummingbird Ltd. [1982] I.L.R.M. 421 which identified a distinction between an appeal on fact or primary facts, and an appeal on a point of law. The latter includes decisions based on an interpretation of documents, and of statutory provisions, which fall squarely within the definition. More difficult to characterise are appeals where a deciding body had come to conclusions on primary facts which no reasonable body could have made, and such decisions are amenable to an appeal on a point of law as the deciding body "must be assumed to have misdirected himself as to the law or made a mistake in reasoning". The third category of an appeal on a point of law is the more obvious one of where a deciding body has adopted a wrong view of the law.

15 15. The matter was summarised by McKechnie J. in Deely v. Information Commissioner [2001] 3 I.R. 439 at p. 452 and the four principles stated were quoted with approval by...