Keon v Gibbs

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 04 July 2017
• Neutral Citation: [2017] IECA 195
• Date: 04 July 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 195 Record No. 2016/55

[2017] IECA 195

THE COURT OF APPEAL

Hogan J.

Finlay Geoghegan J.

Peart J.

Hogan J.

Neutral Citation Number: [2017] IECA 195

Record No. 2016/55

BETWEEN/

JOHN KEON

APPLICANT/APPELLANT

- AND -

MARK GIBBS (IN HIS CAPACITY AS RECEIVER OVER CERTAIN ASSETS OF JOE McNAMARA)

- AND -

PRIVATE RESIDENTIAL TENANCIES BOARD

RESPONDENTS

Extension of time – Point of law – Determination order – Appellant seeking extension of time – Whether appellant demonstrated arguable grounds of appeal

Facts: Baker J, in a reserved judgment delivered on the 21st December 2015, refused to extend the time for the purposes of s. 123(3) of the Residential Tenancies Act 2004 so as to permit the appellant, Mr Keon, to appeal on a point of law against the determination order which had been previously made by the Private Residential Tenancies Board on the 23rd June 2015. The appellant appealed against that decision of the High Court to the Court of Appeal.

Held by Hogan J that even if the High Court had jurisdiction to extend time, the wording of s. 123(3) of the 2004 Act notwithstanding, this was not a case where such a jurisdiction should be exercised. Hogan J noted that before time could be extended, it would be necessary for the appellant to demonstrate at least that he had arguable grounds of appeal. In Hogan J's view, the appellant could not advance such grounds; beyond generalised complaints as to the validity of the appointment of the receiver and the procedures followed by the Tribunal, the appellant could not point to the existence of any arguable grounds of appeal that might otherwise qualify as a point or points of law for the purposes of s. 123(3) of the 2004 Act. Hogan J held that Baker J correctly refused to grant the appellant an extension of time by reason of the fact that no arguable grounds of appeal had been advanced before her.

Hogan J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 4th day of July 2017

1 In a reserved judgment delivered on the 21st December 2015 Baker J. refused to extend the time for the purposes of the s. 123(3) of the Residential Tenancies Act 2004 ('the 2004 Act') so as to permit the appellant, Mr. Keon, to appeal on a point of law against the determination order which had been previously made by the Private Residential Tenancies Board on the 23rd June 2015: see Keon v. Gibbs [2015] IEHC 812. In her judgment delivered on that day Baker J. refused to extend the time and the appellant has now appealed against that decision of the High Court to this Court.

2 Before considering the legal issues which now arise in this appeal, it is necessary first to set out the factual background. Mr. Keon was the tenant of an apartment premises at 14 Dun na Carraige, Salthill, Co. Galway under a letting agreement made on the 6th June 2012 between Joe McNamara as landlord and himself as tenant for the fixed term of two years from the 6th June 2012. The monthly rent was €400.00, which rent was payable in advance.

3 On the 12th April 2006 the landlord mortgaged the premises to IIB Home Loans Ltd. (now KBC Bank) as a security for the loan which the Bank had advanced to purchase the premises. Following default by the landlord, the Bank appointed the first named respondent, Mr. Gibbs, as receiver over the assets secured by the mortgage, including the apartment at 14 Dun na Carriage. The receiver then notified Mr. Keon of his appointment on the 5th October 2012 and directed that that rent be paid to him from November 2012 onwards. Mr. Keon did in fact make three payments of rent on the 5th November 2012, on the 7th December 2012 and on the 8th February 2013, but he has not paid any rent since that date.

4 In March 2013 the receiver informed Mr. Keon that he intended to sell the premises and required vacant possession for that purpose. Mr. Keon then informed the receiver that the property had been sub-let to some University students and he requested that they be allowed to remain in possession until they had finished their examinations in May. Mr. Keon did not, however, deliver possession in May 2013 as – according to the receiver, at least – he had promised to do so.

5 In January 2014 the receiver served a statutory form claiming that Mr. Keon had failed in his obligations qua tenant by reason of the non-payment of rent and the unlawful subletting of the premises without the consent of the landlord. The receiver then served a fourteen day warning notice demanding rent in accordance with s. 67(3) of the 2004 Act. On the 10th February 2014 he served a notice of termination under s. 34 of the 2004 Act. Following some correspondence with Mr. Keon's solicitor – in which the validity of Mr. Gibbs' appointment as receiver was questioned – it became clear that vacant possession was not going to be delivered up. The receiver then referred the matter to the Board for determination.

6 Following an initial adverse adjudication by an adjudicator on 15th July 2014, Mr. Keon duly appealed by notice under s. 100 under the 2004 Act. A hearing date was set for the 22nd May 2015 at which the parties were legally represented. At that hearing Mr. Keon sought an adjournment, which application was refused. The appeal then proceeded to hearing, and the Tribunal delivered a determination on the 26th June 2105, by which it directed Mr. Keon deliver up vacant possession of the apartment 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.

7 The Tribunal forwarded a formal determination order dated the 26th June 2015 to the parties. The order contained a recital to the following effect:

'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'.

8 By this stage Mr. Keon had retained a new firm of solicitors. By letter dated the 24th July 2015 Mr. Keon, through his new firm of solicitors, purported to lodge a notice of appeal directly with the Board. The Board replied on 29th July 2015 and it pointed out that a finding of the Tribunal could not be appealed other than to the High Court. Some two weeks later 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.

9 On the 19th August 2015 this application was brought by motion to extend time for service of a notice of appeal. On the 3rd September 2015 Binchy J. refused Mr. Keon leave to apply for judicial review of the decision of the Tribunal.

The decision of the High Court

10 In her judgment Baker J. considered that the application to extend time fell to be considered under Ord. 84C of the Rules of the Superior Courts, the provisions of which govern the procedures to be adopted for appeals from decisions of statutory bodies. She noted that Ord. 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 2004 Act provides, however, 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.'

11 Section 123(8) of the 2004 defines the 'relevant period' as 21 days beginning on the date of issue of the determination order to the parties.

12 Baker J. noted, however, that the provisions of Ord. 84C r. 5(b) provide 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.'

13 Baker J. then went on to consider whether (i) Mr. Keon had established the existence of a good and sufficient reason and (ii) whether such an extension of time would result in an injustice to a third party. In this regard Baker J. applied the well known Éire Continental test ( Éire Continental Trading Company Ltd v. Clonmel Foods Ltd [1955] I.R. 170) where the Supreme Court identified a three stage test that requires an applicant to show, first, that he or she had a bona fide intention to appeal within the relevant time period; second, that there was an element of mistake, and, third, the existence of an arguable ground for appeal.

14 Baker J. also pointed to the comments of Hardiman J. in G.K. v. Minister for Justice [2002] 2 I.R. 418, 423 where he stated:

'If a claim is manifestly unarguable there can normally be no good or sufficient reason for permitting it to be brought, however slight the delay requiring the exercise of the court's discretion, and however understandable it may be in particular circumstances. The statute does not say that the time may be extended if there were "good and sufficient reason for the failure to make the application within the period of fourteen days". A provision in that...