Hughes v Collins

• Jurisdiction: Ireland
• Judge: the President
• Judgment Date: 20 March 2017
• Neutral Citation: [2017] IECA 93
• Date: 20 March 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 93 [2015 No. 621]

[2017] IECA 93

THE COURT OF APPEAL

Ryan P.

The President

Sheehan J.

Stewart J.

Neutral Citation Number: [2017] IECA 93

[2015 No. 621]

BETWEEN

NEIL HUGHES, JOAN CUMMINS-MOORE

AND

FRANCIS MOORE

PLAINTIFFS/RESPONDENTS

AND

PAUL COLLINS

DEFENDANT/APPELLANT

Interlocutory injunction – Property – Exclusion of the jurisdiction of the courts – Appellant seeking to appeal against High Court order – Whether exclusion of the jurisdiction of the courts did not apply

Facts: The first plaintiff/respondent, Mr Hughes, is a chartered accountant who was, on 11th May 2012, appointed receiver over the dwelling and land known as Blackhall House Stud, Bannow, County Wexford, among others, in the ownership of the second and third plaintiffs/respondents, Ms Cummins-Moore and Mr Moore. The Moores mortgaged the premises to IIB Bank (later named KBC Bank) by deed of 30th July 2007. The defendant/appellant, Mr Collins, went into possession of the property under a letting agreement dated 1st October 2011, made with Ms Joan Cummins-Moore. The term was two years and Mr Collins paid the full term rent of €10,000 in advance. Mr Hughes instituted proceedings as receiver and agent for the Moores as landlords on 25th June 2015. The High Court (Binchy J), on 1st December 2015, granted an interlocutory injunction to Mr Hughes. The High Court made an order restraining Mr Collins from entering on or otherwise interfering with the property. Mr Collins appealed to the Court of Appeal against that High Court order. Mr Collins appealed against the decision that the exclusion of the jurisdiction of the courts did not apply (grounds 1 to 6); in respect of the finding as to the order of Cross J of 3rd April 2014 (ground 7); the Moores were guilty of intimidation and harassment of Mr Collins, which conduct infected the application brought by Mr Hughes and thereby deprived it of the character of clean hands (ground 8); and the High Court was wrong to hold that there was a strong case or a serious issue to be tried, by reason of grounds 1 to 7 (ground 9).

Held by Ryan P that this was a case in which the High Court conducted a careful hearing over two days with the judge reserving his decision before delivering a detailed written judgment in which all the issues were considered. Ryan P noted that this appeal was a return in the Court of Appeal to these very disputes on the basis that the trial judge's conclusions were incorrect. Ryan P could find no basis on which the Court could hold that the judgment of the High Court was incorrect. Ryan P found in general and in particular that the Court was in agreement with Binchy J.

Ryan P held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the President delivered on 20th March 2017

1 This is an appeal by the defendant, Mr. Paul Collins, against a High Court order made on 1st December 2015, granting an interlocutory injunction to the first plaintiff, Mr. Neil Hughes. The High Court made an order restraining Mr. Collins from entering on or otherwise interfering with the dwelling and land known as Blackhall House Stud, Bannow, County Wexford. Mr. Hughes is a chartered accountant who was appointed receiver over that property, among others, in the ownership of the second and third plaintiffs, Ms. Joan Cummins-Moore and Mr. Francis Moore. The Moores mortgaged the premises to IIB Bank (later named KBC Bank) by deed of 30th July 2007. The defendant, Mr. Collins, went into possession of the property under a letting agreement dated 1st October 2011, made with the second plaintiff, Ms. Joan Cummins-Moore. The term was two years and Mr. Collins paid the full term rent of €10,000 in advance. The bank appointed Mr. Hughes as receiver on 11th May 2012, and he instituted these proceedings as receiver and agent for the Moores as landlords on 25th June 2015.

2 Binchy J. heard the application by Mr. Hughes over two days and delivered his judgment on 27th November 2015, in which he set out his reasons for rejecting Mr. Collins's arguments and granting the injunction sought. They may be summarised as follows:

(a) The court held that the receiver had terminated the tenancy held by Mr Collins on 28th January 2014, by notice served on 25th November 2013.

(b) The High Court had jurisdiction in the matter, notwithstanding the provisions of the Residential Tenancies Act 2004, excluding the jurisdiction of the courts in disputes that may be referred to the Tenancies Board for resolution. That was the case for two reasons. First, although Part 4 of the Act applied to the tenancy created by the letting agreement so that the exclusion of jurisdiction under s. 182(1) was engaged, the dispute was out of time for reference to the Board under s. 80 because more than 28 days elapsed after receipt of the notice that the receiver maintained was served on 25th November 2013. The court was satisfied that Mr. Hughes had complied with the requirements of service prescribed by s. 6 of the Act.

(c) The second reason for exclusion of the Board was that Mr. Collins had availed himself of an alternative remedy, namely, High Court proceedings, which were a bar to a reference to the Board, pursuant to s. 9(1) of the Act.

(d) The court rejected other arguments advanced on behalf of Mr Collins: as to alleged failure by Mr. Hughes to notify Mr. Collins under s. 12(1)(e) of the name of the person authorised to act on behalf of the landlord - the court held that Mr. Hughes had complied by letter; that Mr. Collins was in possession of the property under an order made by Cross J. in the High Court - the court referred to the subsequent order of Murphy J. setting aside the previous judgment as irregularly obtained; the receiver's efforts to recover possession by legal process did not represent failure to come to court with clean hands or unlawful disruption of Mr. Collins' rights; the fact that the receiver had challenged the validity of the letting agreement at first did not impair his entitlement to proceed on the basis that it was valid; a term in the agreement as to extension thereof or purchase of the property did not furnish a defence and finally, the notice of termination was not invalidated for non-compliance with s. 62(1)(b) of the Act, requiring signature by the landlord or his authorised agent because Mr. Hughes signed the notice as receiver and had notified Mr. Collins that, as receiver, he was the agent of Ms. Cummins-Moore.

(e) The applicant, Mr. Hughes, had established a case to be tried and had made out a strong case that he was likely to succeed at the trial. The receiver was properly appointed under the mortgage whereby the Moores had secured the property to the bank. The defendant, Mr. Collins, had, at the date of judgment in the High Court, been in occupation for more than two years without paying any rent. The receiver had given an undertaking as to damages and they would be an adequate remedy for Mr. Collins should he defeat the receiver's claim. Mr. Hughes had made a reasonable offer to leave Mr. Collins in possession for some 13 months, but the latter had not accepted it. Mr Collins had indicated willingness to vacate if he was paid a nominated sum. The receiver wanted to dispose of the property and apply the proceeds in reduction of the Moores' debt, which was increasing as time passed. The balance of convenience favoured the granting of the injunction and the other legal criteria were satisfied in the circumstances.

3 Mr. Collins's appeals to this Court against the decision that the exclusion of the jurisdiction of the courts did not apply (Grounds 1 to 6); in respect of the finding as to the order of Cross J. of 3rd April 2014 (Ground 7); the second and third plaintiffs, the Moores, were guilty of intimidation and harassment of the defendant, Mr. Collins, which conduct infected the application brought by Mr. Hughes and thereby deprived it of the character of clean hands (Ground 8) and the High Court was wrong to hold that there was a very strong case or a strong case or a serious issue to be tried, by reason of Grounds 1 to 7 (Ground 9).

Summary of the Appellant's Submissions

The Residential Tenancies Act 2004

4 Under s. 28 of the Act, provided that the tenant has been in continuous occupation of the property for a 6-month period, then the tenant is entitled to a 4-year tenancy dating back to the initial date of tenancy. An exception to this entitlement arises in s. 28(3) in circumstances where a notice of termination has been issued within the relevant 6-month period. This is known as a 'Part 4 Tenancy'. A 'further Part 4 Tenancy' may be obtained pursuant to s. 41 of the Act, where the initial 'Part 4 Tenancy' has elapsed without the issuing a notice of termination. Under such circumstances, another 4-year tenancy shall apply. Mr. Collins submits that he was in receipt of both and therefore entitled to tenancy from 2015 until 2019.

5 The Act places an important emphasis on the role of the PRTB in dispute resolution procedures. Mr. Collins highlights that s. 182 of the Act prevents court proceedings being instigated where the dispute may be referred to the PRTB. He further notes that Binchy J. accepted in principle that the underlying dispute i.e. the validity of the notice of termination, fell within the PRTB's remit. It is suggested that the learned High Court judgment misapplied s.182 through the reliance on the 28-day time-limit found in section 80. The dispute does not solely revolve around the notice of termination, but also breach of the lease, breach of the landlord's obligations and the standard of the dwelling.

6 Mr. Collins further submits that s. 80 is irrelevant in that it applies only to a notice of termination that has been appropriately served. In this case, it is alleged that the notice of termination was void ab initio as it had not been duly served as per s. 6 of the Act. Additionally, it is argued that...