Private Residential Tenancies Board v Judge Linnane

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Declan Budd
• Judgment Date: 23 April 2010
• Neutral Citation: [2010] IEHC 476
• Date: 23 April 2010

[2010] IEHC 476

THE HIGH COURT

[No. 441 J.R./2009]

Private Residential Tenancies Board v Judge Linnane

JUDICIAL REVIEW

BETWEEN

PRIVATE RESIDENTIAL TENANCIES BOARD

APPLICANT

AND

HER HONOUR JUDGE JACQUELINE LINNANE

RESPONDENT

AND

S & L MANAGEMENT COMPANY LIMITED AND GARY MALLON

NOTICE PARTIES

RESIDENTIAL TENANCIES ACT 2004 S182

RESIDENTIAL TENANCIES ACT 2004 PART IX

RESIDENTIAL TENANCIES ACT 2004 PART VI

RESIDENTIAL TENANCIES ACT 2004 S75(3)

RESIDENTIAL TENANCIES ACT 2004 S3(2)

INTERPRETATION ACT 2005 S5

HOUSING (MISCELLANEOUS PROVISIONS) BILL 2008

RESIDENTIAL TENANCIES ACT 2004 S3

HOUSING (MISCELLANEOUS PROVISIONS) ACT 2009 PART VII

HOUSING (MISCELLANEOUS PROVISIONS) ACT 2009 S100(2)(B)

RESIDENTIAL TENANCIES ACT 2004 S3(1)

RESIDENTIAL TENANCIES ACT 2004 S3(3)

RESIDENTIAL TENANCIES ACT 2004 S144

MULLINS v HARNETT & DPP 1998 4 IR 426 1998 2 ILRM 304 1998/26/10487

RESIDENTIAL TENANCIES ACT 2004 S3(2)(D)

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978 PART II

RESIDENTIAL TENANCIES ACT 2004 S3(2)(G)

RESIDENTIAL TENANCIES ACT 2004 S3(2)(A)

RESIDENTIAL TENANCIES ACT 2004 S3(2)(B)

RESIDENTIAL TENANCIES ACT 2004 S3(2)(C)

RESIDENTIAL TENANCIES ACT 2004 S3(2)(E)

RESIDENTIAL TENANCIES ACT 2004 S3(2)(F)

RESIDENTIAL TENANCIES ACT 2004 S3(2)(H)

RESIDENTIAL TENANCIES ACT 2004 S3(2)(I)

NESTOR v MURPHY 1979 IR 326 1979/12/2065

HOLLAND, STATE v KENNEDY 1977 IR 193

DODD & CUSH STATUTORY INTERPRETATION IN IRELAND 2008 PARA 5.89

CONSTITUTION ART 15.2

CONSTITUTION ART 15.2.1

MCGRATH v MCDERMOTT (INSPECTOR OF TAXES) 1988 IR 258

INTERPRETATION ACT 2005 S5(1)

BENNION & GOODALL BENNION ON STATUTORY INTERPRETATION 5ED 2008 PART XXI

BENNION & GOODALL BENNION ON STATUTORY INTERPRETATION 5ED 2008 969

FAMILY HOME PROTECTION ACT 1976 S3(1)

RESIDENTIAL TENANCIES ACT 2004 PART II

RESIDENTIAL TENANCIES ACT 2004 S12

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1992

RESIDENTIAL TENANCIES ACT 2004 S16

RESIDENTIAL TENANCIES ACT 2004 S18(2)

RESIDENTIAL TENANCIES ACT 2004 S18

MULCAHY v MIN FOR MARINE UNREP KEANE 4.11.1994 1995/4/1198

RAHILL & GOODE v BRADY 1971 IR 69

C (R) & ORS v MIN FOR HEALTH 2008 4 IR 614 2008/6/1087 2008 IESC 33

HUTCH v DUBLIN CORP 1993 3 IR 551 1992 ILRM 596 1992/2/530

MALICIOUS INJURIES ACT 1981

REPRESENTATIVES OF CHADWICK (DECEASED) & GOFF v FINGAL CO COUNCIL 2004 1 ILRM 521 2003/45/10971

PLANNING & DEVELOPMENT ACT 2000

RESIDENTIAL TENANCIES ACT 2004 PART IV

RYALL RESIDENTIAL TENANCIES ACT 2004: UPDATE & REVIEW 2006 11 CPLJ 4

HOUSING (MISCELLANEOUS PROVISIONS) ACT 2009 S100

HOUSING (MISCELLANEOUS PROVISIONS) ACT 2009 S100(2)

CRONIN (INSPECTOR OF TAXES) v CORK & COUNTY PROPERTY CO LTD 1986 IR 559

FINANCE (MISCELLANEOUS PROVISIONS) ACT 1968 S18

LANDLORD & TENANT LAW AMDT ACT IRL 1860 S3

RESIDENTIAL TENANCIES ACT 2004 S75

SHANNON REGIONAL FISHERIES BOARD v BORD PLEANALA 1994 3 IR 449 1995/5/1607

J (P) v J (J) 1993 1 IR 150 1992 ILRM 273 1991/12/3024

HOWARD & ORS v CMRS OF PUBLIC WORKS IN IRELAND 1994 1 IR 101

MURPHY, STATE v JOHNSTON 1983 IR 235

LANDLORD & TENANT (GROUND RENTS) (NO 2) ACT 1978 S23

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC (AMDT) ACT 1978 S22

ROAD TRAFFIC (AMDT) ACT 1978 S23

ROAD TRAFFIC (AMDT) ACT 1978 PART III

ROAD TRAFFIC ACT 1968 PART III

ROAD TRAFFIC ACT 1968 PART V

RESIDENTIAL TENANCIES ACT 2004 S19

RESIDENTIAL TENANCIES ACT 2004 S78

RESIDENTIAL TENANCIES ACT 2004 S26

RESIDENTIAL TENANCIES ACT 2004 S187

COURTS

Jurisdiction

Circuit Court - Appeal from District Court - Dispute relating to recovery of service charges concerning apartment occupied by owner under long lease - Certiorari - Mandamus - Statute - Interpretation - Construction - Excluded dwellings - Whether proceedings could be instituted in any court in respect of dispute that could be referred to Private Residential Tenancies Board for resolution - Whether Private Residential Tenancies Board has sole jurisdiction to deal with dispute - Whether owner occupied apartments under long lease constituted âÇÿexcluded dwelling' - Whether list of excluded dwellings in legislation exhaustive - Whether Circuit Court judge erred in failing to apply purposive interpretation to legislation - Whether inclusion of long leases within remit of Private Residential Tenancies Board creates absurd result - Nestor v Murphy [1979] IR 326, The State (Holland) v Kennedy [1977] IR 193, McGrath v McDermott [1988] IR 258, Luke v Inland Revenue Commissioners [1963] AC 557, Mulcahy v Minister for Marine (Unrep, Keane J, 4/11/1994), Rahill v Brady [1971] IR 69, C (R) v Minister for Health [2008] IESC 33 (Unrep, SC,7/5/2008), Hutch v Dublin Corporation [1993] 3 IR 551, Chadwick v Fingal County Council [2008] 3 IR 66, Cronin (Inspector of Taxes) v Cork and County Property Co Ltd [1986] IR 559, Shannon Fisheries Board v An Bord Pleanála [1994] 3 IR 449, PJ v JJ [1993] 1 IR 150, Howard v Commissioner of Public Works [1994] 1 IR 101, Davies v Davies Jenkins & Co Ltd [1968] AC 1097, R v Wimbledon Justices Ex parte Derwent [1953] 1 QB 380, Hakes v Cox [1890] 15 AC 506 and State (Murphy) v Johnson [1983] IR 235 considered - Residential Tenancies Act 2004 (No 27), ss 75, 91, 182 - Relief refused (2009/441JR - Budd J - 23/4/2010) [2010] IEHC 476

Private Residential Tenancies Board v S&L Management Company Ltd

Facts The Private Residential Tenancies Board (the PRTB) brought judicial review proceedings seeking to quash the order of the respondent (vacating a District Court order) and seeking an order of mandamus compelling the respondent to deal with a dispute which had arisen between the two notice parties. The dispute centred around the jurisdiction of the applicant Board and the Circuit Court to deal with disputes brought by management companies for the recovery of service charges by reason of the wording of the Residential Tenancies Act, 2004 (the RT Act, 2004). The second named notice party contended that it was the applicant Board and not the respondent Circuit Court Judge that had jurisdiction to hear the dispute in respect of service charges. The first named notice party, S&L Management Company Limited had brought District Court proceedings against the second named notice party regarding sums alleging owing relating to service charges. A District Court order had been granted regarding the sums, which order the Circuit Court Judge had vacated. The second named notice party was the owner of an apartment and held the apartment on a long lease of 500 years from S & L Management Company Limited subject to a yearly rent of €0.05. It was the applicant's contention that the respondent erred in law in that it was never the intention of the Oireachtas to include owner occupied long leases within the ambit of the RT Act, 2004, as the Act could not accommodate the realities of a long lease; and if the RT Act 2004 was so to apply, many of the results would be wholly absurd. Counsel on behalf of the second named notice party submitted that the relationship between the first and second named notice parties was that of landlord and tenant as defined by s. 3 of Deasy's Act 1860. The second named notice party had relied on the provisions of RT Act, 2004 as meaning that the Act applied to his tenancy, that the dispute being in respect of alleged arrears of service charges was capable of being referred to the PRTB and that the courts had no jurisdiction in the matter.

Held by Budd J in refusing the relief sought. The Circuit Court Judge was correct in that if the relevant provisions of the RT Act, 2004 were not to apply to long leases of owner occupied apartments then the legislature should have expressly excluded such dwellings. If the person drafting the Act omitted such a dwelling in error then it was not the function of the court to concoct an appropriate exclusionary provision or to rectify such a mistake. The relevant section was clear and unambiguous and the function of the court in interpreting a statute was confined to ascertaining the true meaning of each statutory provision. The courts had no license to trespass on the policy making and legislative role of the Oireachtas in devising amending legislation. The apartment was a dwelling to which the Act applied and the court was precluded from dealing with the dispute in respect of the service charges. Accordingly, the court would refuse the reliefs sought by the applicant.

Reporter: R.F.

1 JUDGMENT of Mr. Justice Declan Budd delivered on the 23rd day of April 2010

Background

2 These proceedings came before the High Court by way of judicial review proceedings in which the applicant is the Private Residential Tenancies Board (hereinafter referred to as the P.R.T.B.) which seeks an order of certiorari to quash the order of the respondent, Her Honour Judge Jacqueline Linnane, one of the Circuit Court judges who hear cases emanating from the Board. The application for judicial review is to quash the respondent's order made on 3 ^rd April, 2009 vacating a District Court order made on 11 ^th April, 2008 and seeking an order of mandamus compelling the learned Circuit Court Judge to deal with a dispute which had arisen between the two notice parties involving the jurisdiction of the applicant Board and the jurisdiction or the lack thereof the respondent, as a judge of the Circuit Court, to deal with disputes brought by management companies for the recovery of service charges by reason of the wording of the Residential Tenancies Act 2004, (hereinafter referred to as the "R.T.A. 2004"). The contention made by the second named notice party, Gary Mallon, is that the applicant Board and not the respondent Circuit Court Judge had jurisdiction to entertain the hearing of the dispute in respect of service charges. The applicant seeks an order by way of certiorari to quash the respondent's order made on 3 ^rd April, 2009 vacating the...