Michael Tully v Private Residential Tenancies Board and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Keane |
| Judgment Date | 06 November 2014 |
| Neutral Citation | [2014] IEHC 554 |
| Judgment citation (vLex) | [2014] 11 JIC 0601 |
| Court | High Court |
| Date | 06 November 2014 |
[2014] IEHC 554
THE HIGH COURT
BETWEEN
AND
AND
RESIDENTIAL TENANCIES ACT 2004 S123(3)
RESIDENTIAL TENANCIES ACT 2004 S100
RESIDENTIAL TENANCIES ACT 2004 S123
RESIDENTIAL TENANCIES ACT 2004 S3(2)(G)
RSC O.84C r2(3)
RESIDENTIAL TENANCIES ACT 2004 S3(1)
RESIDENTIAL TENANCIES ACT 2004 S4(1)
RESIDENTIAL TENANCIES ACT 2004 S2(1)
ZHANG v HOLOHAN UNREP PRTBT 17.1.2012 (REF NO TR168/2011/DR92/2011)
ASHFORD CASTLE LTD v SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION 2007 4 IR 70 2006 17 ELR 201 2006/3/487 2006 IEHC 201
HENRY DENNY & SONS (IRL) LTD T/A KERRY FOODS v MIN FOR SOCIAL WELFARE 1998 1 IR 34 2000/5/1750
ELECTRICITY SUPPLY BOARD v MIN FOR SOCIAL COMMUNITY & FAMILY AFFAIRS & ORS UNREP GILLIGAN 21.2.2006 2006/22/4534 2006 IEHC 59
FAULKNER v MIN FOR INDUSTRY & COMMERCE UNREP MURPHY 25.6.1993 1993/11/3511
BRIDES & ORS v MIN FOR AGRICULTURE 1998 4 IR 250 1998/12/3873
MARA (INSPECTOR OF TAXES) v HUMMINGBIRD LTD 1982 ILRM 421
DEELY v INFORMATION CMSR 2001 3 IR 439 2001/5/1298
CANTY v PRIVATE RESIDENTIAL TENANCIES BOARD UNREP LAFFOY 8.8.2007 2007/8/1644 2007 IEHC 243
BATES & ORS v MODEL BAKERY LTD & CHARLES KELLY LTD 1993 1 IR 359 1993 ILRM 22 1992/8/2550
REDUNDANCY PAYMENTS ACT 1967 S39
INSPECTOR OF TAXES v KIERNAN 1981 IR 117 1982 ILRM 13 1981/10/1728
RESIDENTIAL TENANCIES ACT 2004 S170(1)(C)
BULA LTD (IN RECEIVERSHIP) & ORS v TARA MINES LTD (NO 6) 2000 4 IR 412 2000/3/925
CORRIGAN v IRISH LAND CMSN 1977 IR 317
Landlord & Tenant - Residential tenancy - Tenancy Tribunal - Appeal from - Point of law required
Facts: This case was an appeal on a point of law pursuant to s. 123, ss. 3 of the Residential Tenancies Board Act 2004 ("the Act"). The appealed decision was a determination of a Tenancy Tribunal ("the Tribunal") embodied in a determination order of the Private Residential Tenancies Board ("the Board"). The appellant/tenant submitted an application for dispute resolution to the respondent Board, with the second named respondent being the landlord (‘the landlord’), in relation to premises where both the appellant and landlord resided. The adjudicator at first instance concluded that the Board had no jurisdiction to consider the appellant”s application. The appellant then submitted an appeal against that decision to the Tribunal. The Tribunal determined that it had no jurisdiction to hear the appellant”s tenant application. The appellant subsequently appealed to the High Court. Section 123 of the Act permitted an appeal from the Tribunal”s decision to the High Court and stipulated that the High Court”s decision would be final and conclusive. The appellant argued that the Tribunal erred in law in making its decision and contended that the Board did have jurisdiction to determine his application. The Tribunal found that the agreement between the Landlord and the Tenant was not for the rent of a self-contained unit within the meaning of the Act. Section 3(2)(g) of the Act did not apply to a dwelling that the tenant and landlord shared.
Held by Keane J: The adjudicator and the Tribunal had already determined the jurisdictional issue and the Court said it was not going to consider it afresh. The appeal was restricted to a point of law. The appellant wanted to produce a plan of the premises for the court to consider. Keane J held that it was inappropriate for the High Court to consider new or additional materials submitted for the purpose of the appeal. The first point of law raised by the appellant was that the Tribunal misinterpreted s. 3(2)(g) of the Act in relation to what constituted a self-contained residential unit. The court was satisfied that the Tribunal did not err in law in its interpretation (or application) of the provisions of s. 3(2)(g) of the Act. It said there was evidence to support the Tribunals findings of fact; the Tribunal was permitted to draw the inference from those facts that the landlord was residing in the same dwelling as the appellant for the purpose of s. 3(2)(g); and it was open to the Tribunal to decide that it did not have jurisdiction to hear the appellant”s appeal. The appellant also contended that the Tribunal and its Chairperson used unfair procedures during the hearing of his case. The appellant said the Chairperson should have recused herself from the appeal hearing because she had a pecuniary and beneficial interest in it. The court held that the appellant failed to establish this point or any breach of s. 170(1)(c) of the Act on the part of the Tribunal or its Chairperson. The appellant also alleged that the Tribunal and its chairperson was bias. The court said there was no basis to this argument and pointed out that the appellant had not raised this issue before the Tribunal. For these reasons Keane J decided that the appellant was not entitled to raise the issue of bias. The appeal on a point of law was dismissed.
JUDGMENT of Mr. Justice Keane delivered on the 6th November 2014
1. This is an appeal on a point of law pursuant to the terms of s. 123(3) of the Residential Tenancies Board Act 2004 ("the Act"). The decision appealed is a determination of a Tenancy Tribunal ("the Tribunal"), embodied in a determination order of the Private Residential Tenancies Board ("the Board") made on the 18 th October 2013.
2. The decision of the Tribunal was made in the following circumstances. On the 25 th March 2013, the appellant, as tenant, submitted an application for dispute resolution to the respondent Board, identifying the second named respondent as his landlord ("the landlord"), in respect of certain premises at Butterfly Hill, Newcastle, County Wicklow, where both the appellant and the landlord reside.
3. At the request of the appellant and in accordance with the Act, the matter was referred in the first instance to an adjudicator. After a hearing on the 18 th July 2013, the adjudicator concluded that the Board has no jurisdiction to consider the appellant's application.
4. In accordance with his entitlement to do so under s. 100 of the Act, the appellant submitted an appeal against that decision to the Tribunal on the 21 st August 2013. The Tribunal heard the appeal on the 3 rd October 2014, at which hearing the appellant was represented by a solicitor. The Tribunal made its determination on the 6 th October 2014, holding:
"The PRTB have (sic) no jurisdiction to hear the Appellant Tenant's application in respect of the Dwelling at Butterfly Hill, Newcastle, County Wicklow."
That is the decision, embodied in the determination of the Board made on the 18 th October 2014, against which the appellant now appeals to this Court.
5. Section 123 of the Act states in relevant part:
2 "(3) 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.
(4) The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive."
6. In mounting the present appeal, the appellant, who is a litigant in person for the purpose of these proceedings, relied initially on a notice of motion, dated the 19 th December 2013, in which the relief sought was "an order appealing the whole of the determination of [the Board] given on the 18 th October 2013." That application was grounded on an affidavit sworn by the appellant on an unspecified date in December 2013, enumerating eight separate errors of law that he was then alleging had been made by the Tribunal in its determination of his case. In the same affidavit, the appellant also averred to various facts that he obviously considers would, if accepted, support his contention that the Board does have jurisdiction to entertain his application. The report of the Tribunal is exhibited to the appellant's affidavit.
7. However, in what the appellant has termed a "supplementary" notice of motion dated the 14 th February 2014, grounded upon a supplemental affidavit that the appellant swore on the 12 th February 2014, he now identifies the point (or points) of law that he wishes to raise on appeal in the following terms:
"The Private Residential Tenancies Board Tribunal misinterpreted section 3(2)(g) of the Residential Tenancies Act 2004, and"
The Tribunal and Chairman employed unfair procedures during the hearing of the matter between [the appellant] and [the landlord]."
8. It may be that, in now identifying the points of law he wishes to raise in the manner just described, the appellant is, or has become, aware of the requirements of Order 84 C, rule 2(3), of the Rules of the Superior Courts whereby, in an appeal on a point of law, the motion must "state concisely the point of law on which the appeal is made." Certainly, there would have been an obvious difficulty in attempting to deal with the appeal on the basis of the original notice of motion. Indeed, the statement of opposition, delivered on the 27 th February 2014 by the Board, pleads, amongst other things, that the appellant has failed to comply with the provision of the rules just cited. Perhaps by reference to the terms of the "supplemental" notice of motion that the appellant now seeks to rely upon, I did not understand the Board to press that point in argument on this appeal. However, it does seem to me to follow that the only points of law properly before the Court in accordance with the Rules are those identified in the appellant's "supplemental" notice of motion, dated the 14 th February 2014.
9. In its statement...
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