Noone v Residentail Tenancies Board

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Noonan
Judgment Date06 October 2017
Neutral Citation[2017] IEHC 556
Docket Number[2016 No. 310 MCA.],[2016 No. 310 MCA]
Date06 October 2017

[2017] IEHC 556

THE HIGH COURT

Noonan J.

[2016 No. 310 MCA.]

BETWEEN
SUSAN NOONE
APPELLANT
AND
RESIDENTIAL TENANCIES BOARD
RESPONDENT
AND
RICHARD ROE
NOTICE PARTY

Landlord & Tenant – Practice & Procedure – S.123 of the Residential Tenancies Act, 2004 – O.84C, r.2(5)(b)of the Rules of the Superior Courts – Notice of termination – Extension of time

Facts: The appellant filed an appeal against the determination of a Tenancy Tribunal. The key issue was as to whether the High Court had jurisdiction to condone the delay in bringing an appeal from a determination order. The appellant was a tenant and was served a notice of termination, after which the matter went to an adjudicator and subsequently to the Tenancy Tribunal that held the notice of termination to be valid. The order of the Tenancy Tribunal was appealed on point of law but the same was not brought within 21 days of the determination order and was in contravention of s.123 of the Residential Tenancies Act, 2004. The appellant took resort under o.84C r.2 (5) (b) of the Rules of the Superior Courts.

Mr. Justice Noonan dismissed the appeal. The Court stated that the time limit laid down under s.123 of the 2004 Act was an absolute requirement and o.84C had no application in the extension of time limit. The Court did not consider any other issues and held that the appeal had failed in limine.

JUDGMENT of Mr. Justice Noonan delivered on the 6th day of October, 2017
1

Does the High Court have jurisdiction to enlarge the time for bringing an appeal to this court from a determination order made by the respondent (the RTB)? That is the essential preliminary issue that arises on this appeal which if resolved against the appellant disposes of the matter.

Background Facts
2

The appellant is the tenant of a rented dwelling at 35 Mount Drinan Avenue, Swords, County Dublin of which the notice party is landlord. A notice of termination was served by the notice party on the appellant on the 19th January, 2016, alleging a breach by the appellant of the terms of the tenancy. The appellant did not vacate the premises on the expiry of the notice and the notice party accordingly applied to the RTB for dispute resolution services. The RTB referred the dispute to adjudication and a hearing took place before an adjudicator on 17th May, 2016. The adjudicator issued a determination which was appealed to the Tenancy Tribunal before which a hearing took place on the 28th July, 2016.

3

The Tenancy Tribunal made a determination order on the 23rd August, 2016, which was issued on 26th August, 2016. This determined that the notice of termination was valid and directed the appellant to vacate the premises within 91 days of the date of issue of the order. The order further directed payment of arrears of rent.

4

On 23rd September, 2016, the appellant issued the within notice of motion seeking to appeal on a point of law to this court from the determination order of the Tenancy Tribunal.

Relevant Legislative Provisions

5

Section 123 of the Residential Tenancies Act, 2004, insofar as relevant to these proceedings, provides as follows:-

'(2) A determination order embodying the terms of a determination of the Tribunal shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made under subsection (3).

(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...

(8) In this section "relevant period" means the period of 21 days beginning on the date that the determination order concerned is issued to the parties.'

6

As the brief chronology above shows, this appeal was brought more than 21 days from the date that the determination order issued.

7

Order 84C of the Rules of the Superior Courts, insofar as it is relevant to this appeal, provides as follows:

'1. (2) Where any enactment provides for an appeal to be made to the High Court or to a judge of the High Court from a decision or determination made or direction given by a person or body, other than a court, which person or body is authorised by any enactment to make such decision or determination or give such direction (in this Order referred to as "the deciding body"), and provision for the procedure applicable is not made either by the enactment concerned or by another Order of these Rules, the procedure set out in the following rules of this Order shall apply, subject to any requirement of the relevant enactment....

2.(5) Subject to any provision to the contrary in the relevant enactment, the notice of motion shall be issued -

(a) not later than twenty-one days following the giving by the deciding body to the intending appellant of notice of the deciding body's decision, or

(b) 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.'

The Arguments
8

The first relief sought in the appellant's notice of motion is an extension of time pursuant to O. 84C r. 2(5)(b). The appellant proceeded on the basis that O. 84C applied having regard to the fact that this court (Baker J.) expressly applied it in Keon v. Gibbs [2015] IEHC 812. Accordingly the appellant submitted that this court was bound to apply O. 84C on the same basis.

9

The RTB on the other hand submitted that the 21 day time limit in s. 123 was an absolute one which was clear in its terms and accordingly O. 84C has no application insofar as extension of time is concerned. A number of authorities were cited in that regard by counsel for the RTB. She submitted that insofar as Keon appeared to decide that the extension of time provision in O. 84C was applicable to appeals under s. 123, Keon was wrongly decided. Furthermore, counsel submitted that Keon proceeded on the basis that both the parties and the court assumed that O. 84C applied and no argument was ever addressed to the court to the contrary.

10

In that latter regard, counsel for the appellant made the point that the RTB was a respondent in the Keon case and ought not now be permitted to argue for a position contrary to that adopted by it in Keon to persuade this court that it ought not be followed. However, during the course of the hearing, I was informed by counsel for the RTB that although it was named as a respondent in Keon, it had not been served with the motion seeking an extension of time and therefore did not participate in the hearing. Indeed, at para. 2 of her judgment, Baker J. noted that the Board took no part in the application.

11

Having regard to the arguments that were raised by the RTB on the hearing of this application, I invited the parties to make further submissions in relation to the circumstances in which a court would be entitled to depart from a recent decision of a court of equal jurisdiction in the context of what might be described as the line of authorities commencing with Re Worldport Ireland Ltd [2005] IEHC 189. The parties duly furnished me with further submissions on this issue and I reserved judgment.

12

Before that judgment was delivered however, the Court of Appeal delivered judgment in an appeal from the decision of Baker J. in Keon which appeared to me to be of potential significance in the context of the issue arising in this case. Accordingly I issued a further invitation to the parties to make any additional written submissions they wished to in the light of this development, an invitation which was accepted by both parties by way of the submission of further written argument.

Discussion
13

In our adversarial system, litigation is party led. The court is normally asked to reach a decision based on competing arguments advanced by the opposing parties. Where those parties are legally represented at any rate, the court will normally proceed on the assumption that in opting between opposing arguments, the parties have themselves fully researched and considered the applicable legal principles. In the normal course of events, the court will not consider issues that have not been raised by the parties nor as a general rule will it have the resources to do so.

14

On occasion of course, the...

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