Hamilton v PRTB
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 29 September 2022 |
| Neutral Citation | [2023] IEHC 539 |
| Court | High Court |
| Docket Number | Record No. 2022/89MCA |
and
[2023] IEHC 539
Record No. 2022/89MCA
THE HIGH COURT
JUDGMENT of Ms. Justice Niamh Hyland delivered on 29 September 2022
This decision is given in respect of three distinct motions, two being motions of the notice party of 27 March 2023 (the “landlord's first motion”) and June 2023 (the “landlord's second motion”), and the third being a motion brought by the applicant (“the tenant”), Ms. Hamilton of 22 May 2023. The principal relief sought by the landlord's first motion is an Order varying the Mareva type Order of 27 July 2022 that restrained the tenant from dissipating any sum below €48,750, to below €73,041, as well as an Order pursuant to s.123(5) of the Residential Tenancies Act 2004 (the “2004 Act”) varying paragraph 8.3 of the Determination Order of 14 December 2021 to reflect the sum of €73,041.00 in rent owing to the Notice Party. The landlord's second motion modifies downwards the sum sought to be restrained from dissipation to €45,000, as well as seeking an Order of garnishee attaching the sum of €45,000 and/or in the alternative an Order appointing a receiver for that amount.
In her motion, the tenant seeks an Order overturning the Mareva type Order made on 27 July 2022 restraining her from dissipating her share of her inheritance on the basis of non-disclosure by the landlord, as well as damages.
The background to these proceedings is set out in my judgment of 27 July 2022. In summary the matter concerns a tenant, the applicant in these proceedings, who ceased paying rent to her landlord, and who did not observe the terms of a Notice of Termination served on 18 May 2021. Ultimately, she did not vacate the property until February 2023. The matter went to the Residential Tenancies Board (the “RTB”) and there was an adjudication hearing. The adjudicator determined the tenant owed a sum of money. The decision was appealed by the tenant to the Tribunal established pursuant to s.102 and s.103 of the 2004 Act.
The Tribunal made a determination pursuant to s.108(1) of the 2004 Act as amended, which provides that the Tribunal shall, on completion of its hearing, make its determination in relation to the dispute and notify the RTB of that determination. The Tribunal upheld the Notice of Termination. The landlord was held to have breached his obligations and to be liable in the sum of €1,709 to the tenant. The tenant was directed to pay the sum of €25,359.50 to the landlord, being rent arrears less the amount owing by the landlord, by way of monthly instalments of €3,250 and a final instalment. In the event of default of repayment, the full sum was to become due. The tenant was directed to continue to pay rent at the rate of €3,250 per month until the dwelling was vacated. The method of payment for the arrears was by instalment. On 9 March 2022 the RTB made a Determination Order in the terms of the determination of the Tribunal and notified it to the parties.
The tenant appealed against the Determination Order to this Court by way of originating Notice of Motion of 29 March 2022, grounded on an affidavit of the tenant of the same date. The appeal was limited to a challenge to the Tribunal's findings in respect of the validity of the Notice of Termination and the award of damages made in her favour arising from a breach of obligation by the landlord. There was no appeal of the outstanding amount of arrears and she did not dispute the finding that she had failed to pay rent.
Prior to the appeal coming on for hearing, and while the tenant was still in possession of the property and not paying any rent, the landlord brought a motion of 22 June 2022 seeking various reliefs, including relief directing that the tenant be directed to maintain the sums she would receive from her mother's estate pending the determination of the appeal and/or not dissipating the amount she would receive as part of her inheritance pending the determination of the appeal. In the motion brought by the landlord, it is contended that the tenant is the beneficiary of part of her mother's estate. It is identified that on the basis of the information that he and his solicitor have been able to glean, it appears that the tenant may be entitled to 1/6 of her mother's estate. At the hearing of this motion, solicitor and counsel appeared for the tenant but indicated they had no instructions in these motions and therefore were unable to make any argument or participate in them. However, they did provide some information about the estate of the tenant's mother through correspondence, although this correspondence was not put on affidavit.
Following the hearing, I made the following Order on 29 July 2022 for the reasons set out in my judgment of 27 July 2022:
“The tenant, or anyone acting on her behalf, are restrained from dissipating any amount received qua beneficiary in the estate of Elizabeth (Betty) Hamilton below the amount of €48,750 pending the determination of the within appeal and/or until such time as the rent arrears sum owed to the landlord is fully discharged and the tenant gives up possession of 8 Shelbourne Road, Ballsbridge, Dublin 4.”
The tenant vacated the property on or around 13 February 2023. On 20 February 2023, the solicitors for the tenant came off record. The tenant's substantive appeal against the Determination Order came on for hearing on 30 March 2023. The tenant represented herself at that hearing, and has continued to so. I gave an ex tempore judgment on the same day refusing the appeal and affirming the Determination Order.
The motions before me raise two quite different, although inter-related, issues: first, whether, given new information that the tenant seeks to rely upon, the original non-dissipation Order should be set aside, and second, whether I should make a further non-dissipation Order, despite the fact that the substantive hearing has now taken place, and should make an Order of garnishee or appoint a receiver. I will deal with the landlord's application for an Order garnisheeing the debt or appointing a receiver first.
It is essential to emphasise that these applications arise in a public law context i.e., within the confines of a statutory scheme that governs the relationship between landlord and tenant. That scheme may be found in Part 6 of the 2004 Act as amended. Section 123 identifies the binding nature of Determination Orders and provides at s.123(2) that a Determination Order shall become binding on the parties unless an appeal is made. Here an appeal was made to the High Court. Section 123(4) provides that the determination of the High Court on such an appeal shall be final and conclusive.
Given that this Court has upheld the Determination Order, that Order must now be enforced as per the statutory scheme. Section 123 provides in relevant part:
“123.—(1) A determination order embodying the terms of an agreement referred to in section 96(1) or the determination of an adjudicator under section 97 shall become binding on the parties concerned on the order being issued to them.”
Section 124 is concerned with the enforcement of Determination Orders, and it provides as follows in relevant part:
“124.—(1) If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the District Court for an order under subsection (2).
(2) On such an application and subject to section 125, the District Court shall make an order directing the party concerned (the “respondent”) to comply with the term or terms concerned if it is satisfied that the respondent has failed to comply with that term or those terms, unless—
(a) it considers there are substantial reasons (related to one or more of the matters mentioned in subsection (3)) for not making an order under this subsection, or
(b) the respondent shows to the satisfaction of the court that one of the matters specified in subsection (3) applies in relation to the determination order.
(3) The matters mentioned in subsection (2) are—
(a) a requirement of procedural fairness was not complied with in the relevant proceedings under this Part,
(b) a material consideration was not taken account of in those proceedings or account was taken in those proceedings of a consideration that was not material,
(c) a manifestly erroneous decision in relation to a legal issue was made in those proceedings,
(d) the determination made by the adjudicator or the Tribunal, as the case may be, on the evidence before the adjudicator or Tribunal, was manifestly erroneous.”
The existence of the statutory regime in this regard was acknowledged by the landlord in the first motion. At paragraph 16 of his affidavit sworn 22 March 2023, he avers that if the appellant continues to ignore her indebtedness to him, it will be necessary to take enforcement proceedings pursuant to the 2004 Act in the District Court and he will again incur further legal costs. Paragraph 2 of the relief sought in that motion is an Order pursuant to s.123(5) directing the Residential Tenancies Tribunal to vary paragraph 8.3 of the Determination Order so as to acknowledge the additional rent now due because of the further overholding by the tenant without paying rent.
In those circumstances, it is somewhat difficult to understand why the landlord sought reliefs in the second motion that would effectively circumvent the existing statutory regime for enforcement. By seeking the second and third reliefs, i.e. an Order of garnishee attaching the sum of €45,000 owed pursuant to the Determination Order and/or the appointment of a receiver for the purposes of receiving a sum from the...
To continue reading
Request your trial