Marwaha v Residential Tenancies Board

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 07 June 2016
• Neutral Citation: [2016] IEHC 308
• Docket Number: 2015/221/MCA
• Court: High Court
• Date: 07 June 2016

BETWEEN:

AJAY MARWAHA

Appellant

– and –

RESIDENTIAL TENANCIES BOARD

Respondent

[2016] IEHC 308

Barrett J.

2015/221/MCA

THE HIGH COURT

Landlord & Tenant – S. 123 (3) of the Residential Tenancies Act 2004 – Non-payment of rent – Appeal against the determination of Tenancy Tribunal – Validity of notice of termination – Identification of point of law

Facts: The appellant filed an appeal under s. 123(3) of the Residential Tenancies Act, 2004, against the decision of the Tenancy Tribunal affirming the determination of the respondent that the notice of termination of tenancy which had been served upon the appellant was valid and that the appellant should vacate the relevant premises along with payment of damages. The appellant argued that the Tenancy Tribunal had failed to act in accordance with s. 121 of the Act of 2004 and the factum of his stay in the said premises, which was more than 10 years.

Mr. Justice Max Barrett dismissed the appeal filed by the appellant. The Court held that the jurisdiction of the Court in statutory appeals was limited to the extent of resolution of an error of law and it could not be equated with a de novo appeal or judicial review proceedings. The Court found that there must be some evidence to prove that the Tenancy Tribunal had acted irrationally. The Court held that the appellant had failed to show any error of point of law in the impugned adjudication and thus, the decision made by the Tenancy Tribunal was just and cogent. The Court observed that the duration of stay in premises was of no avail as the appellant had defaulted in making rent payments and thus, he was lawfully served with the notice of termination.

JUDGMENT of Mr Justice Max Barrett delivered on 7th June, 2016.

Part 1: Background

1 Following complaint by the landlord, an adjudicator appointed by the Residential Tenancies Board determined, after a hearing on 9th December, 2014, that Mr Marwaha had been served with a valid notice of termination on 29th October, 2014, arising from the non-payment of rent. The adjudicator directed that Mr Marwaha vacate the premises within 28 days of the adjudication. He also directed the payment of (a) certain outstanding rent and (b) an amount by way of damages for breach of the rent-payment obligation.

2 Mr Marwaha appealed this adjudication to a Tenancy Tribunal. Following a hearing of 15th May, 2015, the Tribunal, in a determination order of 3rd July, 2015, rejected the appeal, concluded that the notice of termination of October 2014 was valid, and directed that Mr Marwaha vacate the premises within 28 days and pay certain outstanding rent. It is against this determination order that Mr Marwaha brings the within s.123 appeal. His grounds of appeal are eight-fold. Thus he maintains that:

(1) the Residential Tenancies Board (he equates the Board and Tenancy Tribunal) failed to act in accordance with s.121 of the Act of 2004;

(2) the decision was made against the weight of evidence;

(3) the Residential Tenancies Board failed to take into account that he had been a tenant dwelling in his apartment for more than 10 years;

(4) no tribunal acting reasonably could have made the decision that it did, having regard to the evidence;

(5) the Board failed to take into account that no physical evidence of service of the notice of termination was produced before it;

(6) the Board failed to take into account that no witness was produced who was present while delivering the termination documents;

(7) the decision overruled the Act of 2004, as amended [sic]; and

(8) as the court understands this ground, Mr Marwaha's legal rights as tenant were not respected in accordance with law.

Part 2: Some Applicable Law

A. General.

3 Before considering the various grounds of appeal raised by Mr Marwaha, the court turns first to consider various cases to which it has been referred by counsel for the Board in order more clearly to identify what a s.123(3) appeal embraces, those cases being Canty v. Private Residential Tenancies Board [2007] IEHC 243, Fitzgibbon v. Law Society of Ireland [2014] IESC 48, Tully v. Private Residential Tenancies Board [2014] IEHC 554, and Doyle v. Private Residential Tenancies Board [2015] IEHC 724.

B. Canty v. Private Residential Tenancies Board

4 This was a s.123(3) appeal in which Laffoy J.made the following observation as to the role of the court on appeal, under the heading ‘Item 13’:

‘In effect, what the applicant is asking the court to do is to review the decision of the Tribunal on the merits. As counsel for the Board point out, that is not permissible on an appeal under s.123(3). On an appeal under that provision it is not open to the court to set aside a finding of fact made by the Tribunal unless there was no evidenceto support it. Counsel for the Board referred the court to the dictum of Finlay C.J. in O'Keeffe v. AnBordPleanála [1993] 1 IR 39 (at p.72) in which he stated:

‘I am satisfied that in order for an applicant for judicial review to satisfy a Court that the decision-making authority has acted irrationally in the sense which I have outlined above so that the Court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the Court that the decision-making authority had before it no relevant material which would support its decision.’

That passage, in my view, certainly outlines the appropriate principle in the judicial review context. Perhaps more apposite for present purposes is a statement of Kenny J., speaking for the Supreme Court, in Mara (Inspector of Taxes) v. Hummingbird Limited [1982] 2 ILRM 421 in reference to findings of fact in a case stated by an appeals commissioner under the Income Tax Act, 1967. Having pointed out that a case stated consists in part of findings of fact on questions of primary fact, Kenny J. stated that the findings on primary facts should not be set aside by the court unless there was no evidence whatever to support them. That statement was approved of by the Supreme Court in the context of an appeal under s.300(4) of the Social Welfare (Consolidation) Act, 1981 in Henry Denny& Sons (Ireland) Limited v. Minister for Social Welfare [1998] 1 I.R. 34 (at p.47).’

5 Notably, counsel in Canty clearly considered that the s.123 procedure was akin to a judicial review whereas Laffoy J., consistent with a trend in the case-law which the court returns to in its consideration of Tully later below, thought it had more in common with a case stated. The form and nature of appeals, including s.123 appeals and, to a lesser extent, the difference between them and judicial review applications, was subsequently considered by Clarke J. in Fitzgibbon, on which see below.

C. Fitzgibbon v. Law Society of Ireland [2014] IESC 48

6 In his judgment in Fitzgibbon, a case in which a solicitor was challenging certain sanctions imposed on her by the Law Society, Clarke J. analysed in some detail the nature of a de novo appeal, an appeal on the record, an appeal against error, and an appeal on a point of law. The reader is referred to that judgment for the nuances of Clarke J.'s analysis. Table 1(overleaf)seeks to identify in summary form the principal differences that Clarke J perceives to arise between the various categories.

7 Clarke J. does not seek in Fitzgibbon to engage in the ‘difficult but important task’ (para.8.1) of defining the precise boundaries of judicial review. Even so, it is perhaps notable that the only critical difference he expressly identifies between an appeal on a point of law and judicial review is that ‘[I]t must be assumed that, by conferring a right of appeal, the Oireachtas intended that some greater review is permitted than that which would have applied, in the context of judicial review’(para.8.2). In practice, it does seem that the boundary between on the one hand (in an appeal on a point of law) identifying an error of law in the determination or process of determination of a first-instance decision and, on the other hand (in a judicial review application) considering the procedural or substantive lawfulness of a challenged decision, is oftentimes blurred. It is not for nothing that what is ostensibly a judicial review application regularly looks and sounds, at hearing, like an appeal on a point of law. In effect, if not in substance, the two are often similar. Indeed, the lesson that this Court respectfully takes from Clarke J.'s comprehensive analysis in Fitzgibbon is that, given the sometimes nuanced differences that he identifies between various forms of appeal, and the oftentimes...