Keon v Gibbs

• Jurisdiction: Ireland
• Judge: Mr. Justice Baker
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 812
• Docket Number: 2015 No. 248 NCA
• Court: High Court
• Date: 21 December 2015

BETWEEN

JOHN KEON

APPELLANT/TENANT

AND

MARK GIBBS (IN HIS CAPACITY AS RECEIVER OVER CERTAIN ASSETS OF JOE McNAMARA) AND THE PRIVATE RESIDENTIAL TENANCIES BOARD

RESPONDENTS

[2015] IEHC 812

Baker J.

2015 No. 248 NCA

THE HIGH COURT

Landlord & Tenant – The Residential Tenancies Act, 2004 – Failure to pay rent – Mortgage of rented premises – Appointment of Receiver – Subletting – Appeal – O. 84C of the Rules of the Superior Court – Extension of time – Sufficient cause

Facts: The appellant sought an order for extension of time to file an appeal against the decision of the Private Residential Tenancies Board awarding the receiver of the rented premises the damages for non-payment of rent as well for the unlawful subletting by the appellant.

Mr. Justice Baker refused to grant an order for extension of time to the appellant. The Court held that before granting an order for enlargement of time under o. 84 C, r. 2 (5) of the Rules of the Superior Courts, the applicant had to show that he had a bona fide intent to appeal and that there was an element of mistake and not a procedural error. The Court observed that the Court should be satisfied that there existed a good and sufficient cause to grant the time extension. The Court found that certain grounds of appeal raised by the applicant overlapped with the unsuccessful judicial review application filed by the applicant earlier and thus, could not succeed. The Court also found that the error of jurisdiction as alleged by the appellant would also be of no aid as there were no particularised documents to contest the same.

JUDGMENT of Mr. Justice Baker delivered on the 21st day of December 2015

1 This judgment concerns the approach of the court to an application to extend time to appeal a decision of the Private Residential Tenancies Board (hereinafter 'the Board') under the provisions of Order 84C of the Rules of the Superior Courts.

2 Application was brought by notice of motion dated the 19th August, 2015 for an order extending time for service and lodgement of a notice of appeal against an order made by the Board on the 23rd June, 2015. The application is contested by the first named respondent, the second respondent, the Board, having taken no part in this application.

Background

3 The appellant holds an apartment premises at 14 Dun na Carraige, Salthill, County Galway (hereinafter 'the Premises') under letting agreement made on the 6th June, 2012 between Joe McNamara as landlord of the one part, and the appellant of the other part, for the fixed term of two years from the 6th June, 2012, at the monthly rent of €400.00, payable in advance.

4 On the 12th April, 2006 the landlord had mortgaged the premises to IIB Home Loans Ltd., since renamed KBC Bank Ireland Ltd., (hereinafter 'the 'Bank') as security for the loan advanced to purchase the Premises.

5 By deed of appointment made on the 4th October, 2012 the Bank appointed the first named respondent, Mark Gibbs, as receiver over all of the assets secured by the mortgage, including the Premises. I will refer to Mr. Gibbs as 'the Receiver'.

6 The Receiver notified the tenant of his appointment on the 5th October, 2012 and directed that rent be paid to him from November, 2012 onwards. The tenant did make three payments of rent on 5th November, 2012, on 7th December, 2012 and on 8th February, 2013, but has not paid the whole or any part of the rent thereafter.

7 The Receiver advised Mr. Keon he intended to sell the Premises at a meeting on 15th March, 2013, and would require vacant possession for that purpose. The Receiver was relying on a clause in the letting agreement that expressly provided that 'in the event of the house being sold' the landlord was entitled to give the tenant one month's notice to vacate.

8 Mr. Keon at that meeting informed the Receiver that the Premises has been sublet to students, and asked that the tenancy continue, so they could remain in possession until they finished their exams in May, 2013. The evidence of the Receiver is that Mr. Keon agreed to deliver up possession on 12th May, 2013, but did not do so.

9 The Receiver served a Notice of Breach of Obligations of Tenancy in statutory form on the 9th January, 2014, on the stated grounds that the tenant had failed to pay rent for the period of thirteen months to that date, and that he had unlawfully sublet the Premises without the consent of the landlord.

10 On the 22nd of January, 2014 the Receiver served a fourteen day warning notice in accordance with s. 67(3) of the Residential Tenancies Act, 2004 (hereinafter 'the Act of 2004') demanding rent, and thereafter on the 10th February, 2014 served a notice of termination giving 28 days' notice in accordance with s. 34 of the Act of 2004.

11 The tenant did not vacate the Premises, and employed solicitors who corresponded with the Receiver inter alia for the purposes of seeking information with regard to his appointment.

12 On the 26th March, 2014 the Receiver referred the matter to the Board for dispute resolution. The hearing before the adjudicator was conducted on the 15th July, 2014 at which the tenant and the Receiver each appeared in person, and the landlord was represented by solicitors.

13 The adjudicator found that the tenant was overholding, that arrears of rent in the sum of €6031.50 was then owed in respect of the tenancy, and awarded the Receiver damages of €800.00 for non payment of rent, and damages of €400.00 for unlawful subletting.

14 The tenant appealed by notice under s. 100 of the Act of 2004 on the 26th August, 2014, and a hearing date was set for the 22nd May, 2015. Mr. Keon was represented by Mr. Toal B.L. and the Receiver by his solicitor. The tenant sought an adjournment, which was refused. Thereafter the matter proceeded to hearing, and the Tribunal delivered a determination on the 26th June, 2105, by which it directed that the tenant deliver up vacant possession of the Premises within fourteen days, and pay the sum of €9,992.50 in respect of arrears of rent and €1,000.00 in damages, such sums to be paid by specified instalments.

15 The Determination Order of the Tribunal was sent under cover of letter dated 26th June, 2015 with the standard note which contained the following statement:

'This Determination Order shall, on expiry of the period of twenty-one days from the date of issue, become binding on the parties concerned, unless an appeal is made by any of the parties directly to the High Court on a point of law before then, pursuant to s. 123 (3) of the Residential Tenancies Act, 2004'.

16 By letter dated the 24th July, 2015 the tenant, through a new firm of solicitors, purported to lodge a notice of appeal directly with the Board. The appeal was purported to be made on a document entitled 'appeal application form', which in form and in effect is almost identical to the statutory document submitted by the tenant in August, 2014 by way of appeal from the decision of the adjudicator and which formed his appeal to the Tribunal.

17 The Board pointed out in an email of 29th July, 2015 that a finding of the Tribunal could not be appealed other than to the High Court.

18 No further step was taken by the tenant to avail of the correct mechanism for appeal until approximately two weeks later, when on the 12th August, 2015 his solicitors wrote to the Receiver indicating that Mr. Keon intended seeking to appeal the determination order to the High Court, and that he was also considering an application for judicial review of the decision.

19 On the 19th August 2015 this application was brought by motion to extend time for service of a notice of appeal.

20 On the 3rd September, 2015 Binchy J. refused the tenant leave to apply for judicial review of the decision of the Tribunal.

Procedure for appeal

21 Order 84C of the Rules of the Superior Courts, inserted by S.I. 14 of 2007, provides the procedures to be adopted for appeals from decisions of statutory bodies, and O. 84C r. 2(5)(a) prescribes a notice period of 21 days, subject to any provision to the contrary in the relevant enactment. Section 123(3) of the Act of 2004 provides in relation to a Determination Order issued by the PRTB that 'any of the parties concerned may appeal to the High Court within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law'. Subparagraph (8) defines the 'relevant period' as 21 days beginning on the date of issue of the Determination Order to the parties.

22 Appeals are by way of notice of motion and the court has power to extend the period for bringing of an appeal pursuant to O. 84C r. 5(b) as follows:

'within such further period as the Court, on application made to it by the intending appellant, may allow where the Court is satisfied that there is good and sufficient reason for extending that period and that the extension of the period would not result in an injustice being done to any other person concerned in the matter.'

23 I turn now to consider the test to be applied by the court in considering the application to extend time.

The test in O.84C r.2(5)

24 As is apparent from the words of the sub rule, the court has a discretion to extend the time to appeal, but the discretion is constrained by a requirement that there be:

a. good and sufficient reason for extending that period and

b. that the extension of the period would not result in an injustice being done to any other person concerned in the matter.

25 The common law test to be met by an applicant seeking to enlarge time to appeal was established in Eire Continental Trading Company Ltd v. Clonmel Foods Ltd [1955] 1 I.R. 170 where the Supreme Court identified a three stage test that requires an applicant to show:

a. That he or she had a bona fide intention to appeal within the relevant time period;

b. that there was an element of...