Security of Tenure

Cases

Crowe v Liu

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0716-001860 / Case Ref No: 0416-25886
Appellant Tenant: Helen Liu also know as Xiao dan Liu
Respondent Landlord: Maurice Crowe
Address of Rented Dwelling: 56 Dominic Street, Cork City , Cork, T23N2AX
Tribunal: Finian Matthews (Chairperson)
Helen-Claire O’Hanlon, Vincent P. Martin
Venue: Committee Room 1, Cork City Council, City Hall,
Anglesea Street, Cork
Date & time of Hearing: 10 August 2016 at 11:00
Attendees: Maurice Crowe (Respondent Landlord)
Helen Liu also know as Xiao dan Liu (Appellant
Tenant)
P.J. Kiely (Legal Representative, attending at the
request of P.J O’Mahony Solicitors, Tenant’s
Solicitor)
In Attendance: RTB appointed stenographers
1. Background:
On 25 April 2016 the Landlord made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 76 of the Act. The matter was referred to an Adjudication
which took place on 13 June 2016. The Adjudicator determined that:
1. The Notice of Termination served by the Applicant Landlord on 23 February 2016
on the Respondent Tenant in respect of the tenancy of the dwelling at 56 Dominic
Street, Cork is valid.
2. The Respondent Tenant and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 42 days of the date of
issue of the Order.
3. The Respondent Tenant shall pay any rent outstanding from 13 June 2016 to the
Applicant at the rate of €600 per month or proportionate part thereof at the rate of
€19.73 per day unless lawfully varied, and any other charges as set out in the terms
of the tenancy agreement for each month or part thereof, until such time as she
vacates and gives up possession of the above dwelling.
4. The Landlord shall refund the entire of the security deposit of €600 to the
Respondent Tenant, upon the Respondent Tenant vacating and giving up vacant
possession of the above dwelling, less any amounts properly withheld in accordance
with the provisions of the Act.
Subsequently the following appeal was received from the Tenant on 08 July 2016. The
grounds of the appeal are Invalid Notice of termination and Unlawful termination of
tenancy (Illegal eviction). The appeal was approved by the Board on 11 July 2016
The RTB constituted a Tenancy Tribunal and appointed Helen-Claire O’Hanlon, Finian
Matthews, Vincent P. Martin as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed Finian Matthews to be the chairperson of the Tribunal (“the
Chairperson”).
On 20 July 2016 the Parties were notified of the constitution of the Tribunal and provided
with details of the date, time and venue set for the hearing.
On 10 August 2016 the Tribunal convened a hearing at Committee Room 1, Cork City
Council, City Hall, Anglesea Street, Cork.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
Opening the Tribunal the Chairperson stated that it had been established to hear an
appeal by the Appellant Tenant, Helen Liu, otherwise known as Xiao dan Liu, against a
determination made following an adjudication held on 13 June, 2016 in the case of a
dispute between the Tenant and the Respondent Landlord in respect of a tenancy at 56,
Dominic Street, Cork City, Cork, 723N2AX. He introduced the members of the Tribunal to
the parties.
He asked the Parties to identify themselves and to state the capacity in which they were
attending the Tribunal hearing. He confirmed with the Parties that they had received the
relevant papers from the RTB in relation to the case and that they had received and
understood the RTB document entitled “Tribunal Procedures”. Both Parties confirmed that
they had done so. The Chairman said that he would be happy to clarify any queries in
relation to the procedures either then or at any stage over the course of the Tribunal
hearing.
The Chairperson then explained that the Tribunal hearing, as stated in its procedures,
was not intended to be very formal, but that the Parties must follow any instructions given
by the Chair, that evidence would be given under Oath or Affirmation, would be recorded
by the stenographer present, and that based on that recording a transcript could be made
available to the Tribunal if necessary, to assist it in preparing its report on the dispute.
The parties confirmed that they had no objection to the arrangements for recording the
proceedings. The Chairperson also stated that it was against the law for anyone giving
evidence to refuse to take the Oath or Affirmation, to refuse to produce any document in
his control required by the Tribunal, to refuse to answer any question put by the Tribunal,
or to knowingly provide materially false or misleading information to the Tribunal. He
pointed out that an offence may be prosecuted by the RTB through the courts and a
successful conviction could result in a fine of up to €4,000 or up to 6 months
imprisonment or both.
The Chairperson added that the Appellant Tenant would be invited first to present her
case; this would be followed by an opportunity for cross-examination by the Respondent
Tenant; that the Respondent Landlord would then be invited to present his case, followed
by an opportunity for cross-examination by the Appellant Tenant. He said that members
of the Tribunal would ask questions of both Parties from time to time. He also directed
that neither Party should interrupt the other when direct evidence was being given.
He also said that at the end of the hearing, both the Appellant Landlord and the
Respondent Tenant would be given the opportunity make a final submission should they
so wish.
The Chairperson reminded the Parties that that the Determination Order of the RTB,
based on the report of the hearing, would decide the issue between the parties and could
be appealed to the High Court on a point of law only.
All persons giving evidence to the Tribunal were then sworn in.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Tenant’s legal representative submitted that the basis of the tenancy was a written
lease dated 8, August, 2013 entered into between the Tenant and the Respondent
Landlord. While accepting that the Tenant was in occupation of the dwelling before that
date, he suggested that this lease replaced any arrangement in place between the
Tenant and a previous owner of the dwelling. His submission, therefore, was that the
commencement date of the tenancy was 8 August, 2013. In those circumstances he was
of the view that the Landlord was not entitled to issue Notice of Termination on the basis
issued to the Tenant on 22 December, 2015, because her tenancy at that time remained
a Part 4 tenancy. He said that he was also questioning whether the notice had been
correctly served on the Respondent Tenant.
The Appellant Tenant told the Tribunal that she moved into the dwelling in either June or
July of 2010 or 2011. She had a written letting agreement with the previous owner of the
dwelling but had been unable to locate a copy of this. She said that she had been out of
the jurisdiction on holiday from 25 January until 23 April 2016, did not received the notice
until after she got back from holidays, and this was why she had not challenged the
validity of the notice within the specified time limit. In response to further questions from
the Tribunal the Tenant accepted that she may have received the Notice of Termination in
December, 2015.
In response to later evidence from the Landlord that the Tenant had sent him a text
stating that the start date of the tenancy was 8 August, 2011, the Tenant confirmed that
she had sent this text. She said that she had been advised that the commencement date
was not important and she had simply made up this date.
The tenant also said that no part of her deposit had ever been returned to her.
Respondent Landlord’s case:
The Respondent Landlord told the Tribunal that he purchased the dwelling in 2013. He
said that he issued a Notice of Termination on the Respondent Tenant, on 8 October,
2015, citing as the reason for termination that vacant possession was required for
substantial refurbishment of the dwelling. At that point he said that he registered the
existing tenancy with the RTB citing the commencement date as 8 August, 2013,
because he thought at the time this was the date from which he was required to register
the tenancy.
The Landlord accepted that the Notice of Termination he issued on 8 October, 2015 was
invalid. He subsequently obtained advice to the effect that the tenancy must be registered
from the date of its commencement. He took steps to establish the date of
commencement, including speaking to the former landlord and the tenant. He said that
the former landlord told him that the tenant moved in on 8 August, 2011. He also gave
evidence in relation to a text sent to him by the Appellant Tenant in which the tenant said
she moved into the dwelling on 8 August, 2011.
Having established the start date of the tenancy the Landlord said that he revised the
registration details he had previously supplied to the RTB and paid the registration fee
and the late fee required for registering a tenancy specified to have commenced on 8
August, 2011.
He said that on 22 December, 2015 he served a further notice of termination requiring the
tenant to vacate by 21 April, 2016. She had failed to vacate by that date and that was why
he had initiated proceedings with the RTB. He stated that he delivered the notice by hand
to the dwelling and also delivered a copy by hand to the office of the Appellant Tenant’s
solicitor.
In relation to the deposit, the Respondent Landlord said that it had not been passed on
him when he purchased the dwelling, and it was his understanding that at least part of it
was returned to the Tenant by the previous landlord.
The Chair thanked both parties and advised them that following the hearing the Tribunal
will prepare a report and make its Determination in relation the dispute and will notify the
RTB of that Determination.
6. Matters Agreed Between the Parties
Before inviting the parties to make their submissions the Chairperson said that the
Tribunal had read the documentation in relation to the case as circulated to the parties
and it appeared to the Tribunal that the following factual matters in relation to the tenancy
were not in dispute between the parties:
• The tenancy is on-going
• The rent is €600 per month, paid in advance on the 8th day of each month.
• There are no rent arrears
• The Appellant Tenant paid a deposit of €600 when she moved into the dwelling.
Both parties accepted that they were in agreement in relation to the foregoing matters.
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence
presented to it by the parties, the Tribunal’s findings and reasons therefor are set out
hereunder.
Finding 1. The Appellant Tenant held a Part 4 tenancy which commenced on 8 August,
2011 and ended on 7 August, 2015.
Reasons. Section 142 of the Act provides that in any proceedings under Part 6, it shall be
presumed until the contrary is shown that the date stated in the register as the date on
which the tenancy, the subject of the proceedings, commenced is the date on which that
tenancy commenced. The Respondent Landlord stated in his evidence that when the
tenancy was registered by him originally he gave the commencement date as 8 August,
2013, this being the effective date from which he entered into a written agreement with
the Tenant, who was already residing in the dwelling when he purchased it in 2013. In
further evidence he stated he subsequently learned that in registering the tenancy he was
required to state the date the Appellant Tenant’s tenancy of the dwelling commenced; his
subsequent inquiries established that the commencement date was 8 August, 2011 and
he took steps to amend the registration to specify that date as the date of
commencement, at the same time paying the appropriate late registration fee. The
Landlord’s evidence in relation to the initial and revised registration of the tenancy was
not contested at the hearing.
Having regard to the provisions of section 142 of the Act, therefore, the Tribunal must
presume that the date of commencement of the tenancy was 8 August, 2011. No
evidence to the contrary was provided to the Tribunal. The evidence in fact supported the
presumption that the tenancy commenced on 8 August, 2011, with particular reference to
the text message the Tenant accepted she sent to the Respondent Landlord, giving that
date as the commencement date. The Landlord had also satisfied himself through
inquiries with the previous landlord that this was the commencement date. In addition to
that the Tribunal had before it an e-mail dated 20 October, 2015 from the Appellant
Tenant’s solicitor stating that it was their understanding that the tenant had been a tenant
at the dwelling in excess of 4 years, noting also that the Landlord had purchased the
dwelling in or around July, 2013.
The Tribunal sees no merit in the submission by her legal representative that the tenancy
of the Appellant Tenant commenced on 8 August, 2013, and that consequently she
remains the holder of a Part 4 tenancy. The duration of a tenancy, such as in this case,
relates to the date from which a tenant acquires the right to occupy a dwelling under a
tenancy, irrespective of whether the dwelling was subsequently sold and the tenancy was
taken over by a new landlord. The Tenant herself stated in her evidence that she had
been in occupation of the dwelling since June or July of 2010 or 2011. With regard to the
specific date of commencement the Tribunal, as already stated, is satisfied that the
Appellant Tenant in this case acquired her right of occupation with effect from 8 August,
2011. An additional factor supporting the conclusion that this was the commencement
date is the fact that the due date for payment of rent in respect of the tenancy is the 8th
day of each calendar month.
After the Tenant had been in occupation for a period of six months the tenancy became a
Part 4 tenancy with effect from 8 February, 2012. By virtue of section 28 of the Act the
tenancy then continued in being for a period of 4 years from the commencement of the
tenancy, provided no notice of termination had been served during the first six months of
the tenancy, as was the case here. The Part 4 tenancy accordingly continued in being
until 7 August, 2015.
Finding 2. The Appellant Tenant holds a further Part 4 tenancy which commenced on 8
August, 2015.
Reasons. Under the provisions of section 41(1) of the Act if a Part 4 tenancy continues to
the expiry of the 4 year period without a notice of termination having been served under
section 34 or 36 then, by virtue of section 41(1) a new tenancy, referred to as further Part
4 tenancy, comes into being between the tenant and the landlord. In this case therefore a
further Part 4 tenancy came into being between the Appellant Tenant and the
Respondent Landlord with effect from 8 August, 2015 i.e. on the expiry of the Tenant’s
Part 4 tenancy.
Finding 3. The Notice of Termination served on the Appellant Tenant on 22 December,
2015 is valid
Reasons Section 42(1) of the Act provides that not later than 6 months from its
commencement, a landlord may serve a notice of termination in respect of a further Part
4 tenancy, subject to the condition specified in sub-section (2) that the period of notice
given by that notice shall be not less than 112 days.
The notice of termination served by the Respondent Landlord on 22 December, 2015
stated that the tenancy would expire on 21 April, 2016, which gave the tenant a period of
notice of 121 days, commencing on the day after the date of service of the notice. This
met the requirement to give the tenant not less than 112 days notice.
The notice of termination served on 22 December, 2015 stated that the reason for
termination was that the Landlord was desirous of recovering possession of the dwelling
following the expiration of the Tenant’s Part 4 tenancy and for this purpose terminating
pursuant to section 42 of the Act any further Part 4 tenancy which may have arisen in the
tenant’s favour pursuant to section 41 of the Act by serving a notice of termination prior to
completion of six months from the date of expiration of the Tenant’s previous Part 4
tenancy.
As already stated, the commencement date of a further Part 4 tenancy is the date of
expiry of the previous Part 4 tenancy. Based on the provisions of section 41 of the Act,
the Tribunal is satisfied that a further Part tenancy is a separate and distinct tenancy from
the previous Part 4 tenancy and is a new tenancy for the purposes of s. 62(1)(e) of the
Act. On that basis, section 41 permits a Landlord to terminate a further Part 4 tenancy
within the first six months without giving a reason, subject to any other tenancy
agreement in existence between the parties, such as a fixed term or periodic tenancy.
Although there was no requirement on him to do so the Landlord in this case chose to
incorporate a reason for termination of the tenancy as already set out. In the Tribunal’s
view the voluntary inclusion of a reason for termination does not affect the validity of the
notice which the Landlord was entitled to issue in accordance with the requirements of
section 42 of the Act.
For the avoidance of doubt the Tribunal accepts the Landlord’s evidence that he served
the Notice of Termination by hand on 22 December, 2015 and is satisfied that the means
of service met the requirements of section 6(1)(b) of the Act.
Finding 4. The Appellant Tenant is overholding in the tenancy.
Reason. The Appellant Tenant remains in occupation of the dwelling following the expiry
of a valid notice of termination.
Finding 5. Upon termination of the tenancy the Appellant Tenant is entitled to the return of
her deposit, provided she is in compliance with the terms of the tenancy.
Reasons. The Tribunal accepts the Respondent Tenant’s evidence that no part of the
deposit of €600 it was agreed she had paid has been refunded to her. Under the
provisions of section 12 of the Act the tenant is entitled to the prompt return of that
deposit, unless she is in default in the payment of rent or other charges payable by the
tenant in accordance with the tenancy agreement or has failed to comply with the
requirement not to cause a deterioration in the condition the dwelling was in at the
commencement of the tenancy, disregarding normal wear and tear. Subject to those
conditions the Tribunal view is that responsibility for the prompt return of the tenant’s
deposit on termination of her tenancy rests with the Appellant Landlord.
8. Determination:
Tribunal Reference TR0716-001860
In the matter of Helen Liu also know as Xiao dan Liu (Tenant) and Maurice Crowe
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The Notice of Termination served by the Respondent Landlord on 22 December,
2015 on the Respondent Tenant in respect of the tenancy of the dwelling at 56
Dominic Street, Cork, T23N2AX is valid.
2. The Appellant Tenant and all persons residing in the afore-mentioned dwelling shall
vacate and give up possession of the dwelling within 42 days of the date of issue of
the Order.
3. The Appellant Tenant shall pay any rent outstanding from 13 June 2016 to the
Applicant at the rate of €600 per month or proportionate part thereof at the rate of
€19.73 per day unless lawfully varied, and any other charges as set out in the terms of
the tenancy agreement for each month or part thereof, until such time as she vacates
and gives up possession of the above dwelling.
4. The Respondent Landlord shall refund the entire of the security deposit of €600 to
the Appellant Tenant, upon her vacating and giving up vacant possession of the above
dwelling, less any amounts properly withheld in accordance with the provisions of the
Act.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
16 August 2016.
Signed:
Finian Matthews Chairperson
For and on behalf of the Tribunal.

Nowak v Hogan

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1215-001535 / Case Ref No: 1115-22114
Appellant Tenant: Piotr Nowak, Agnieszka Nowak
Respondent Landlord: Andrea Hogan, Sinead Rossiter
Address of Rented Dwelling: 1F Rathborne Close, Ashtown , Dublin 15,
D15RR22
Tribunal: John Tiernan (Chairperson)
Nesta Kelly, Mary Doyle
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 07 March 2016 at 2:30
Attendees: Piotr Nowak (Appellant Tenant)
Andrea Hogan (Respondent Landlord)
Brian O’Brien (Solicitor)
Peter Mullen (Barrister at Law)
In Attendance: DTI Stenographers
1. Background:
On 03 November 2015 the Landlord made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 23 November 2015. The Adjudicator determined that:
1) The Notice of Termination served on 26th August 2015 by the Applicant
Landlords on the Respondent Tenants, in respect of the tenancy of the dwelling at 1F
Rathborne Close, Ashtown, Dublin 15, is invalid;
2) The Respondent Tenants shall pay the sum of €6,000 to the Applicant
Landlords, within 56 days of the date of issue of this Order, being rent arrears of
€5,000 and additional damages of €1,000 for breach of tenants’ obligations under
section 16(a) of the Act, in respect of the tenancy of the above dwelling.
Subsequently the following appeal was received from the Tenant on 30 December 2015.
The grounds of the appeal are Rent arrears and overholding and Breach of tenant
obligations. The appeal was approved by the Board on 12 January 2016
The RTB constituted a Tenancy Tribunal and appointed Nesta Kelly, Mary Doyle, John
Tiernan as Tribunal members pursuant to Section 102 and 103 of the Act and appointed
John Tiernan to be the chairperson of the Tribunal (“the Chairperson”).
On 04 February 2016 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 07 March 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Parties to identify themselves and to identify the capacity in
which they were attending the Tribunal. He asked the Parties to confirm that they had
received the relevant papers from the RTB and that they had received the RTB document
entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the party who requested to refer the Dispute to the Tribunal, the Appellants would be
invited to present their case first; that there would be an opportunity for cross-examination
by the Respondent; that the Respondent would then be invited to present his case, and
that there would be an opportunity for cross-examination by the Appellants. The
Chairperson explained that following this, both parties would be given an opportunity to
make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and he reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal is an offence
punishable by a fine of up to €4,000 and/or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only (pursuant to section 123(3) of the
Residential Tenancies Act, 2004, hereafter referred to as the Act).
The Chairperson also informed the parties that if it seemed that they might be able to
resolve their dispute by agreement, the Tribunal would facilitate any such negotiations.
The Parties intending to give evidence were then sworn in.
Request for Adjournment:
At the outset the Appellant Tenant requested that the Tribunal hearing be adjourned
pending the outcome of his proposed Appeal to the High Court on a point of law under
s.123 of the Act in respect of a previous Tribunal case (Ref: TR0215-001045) relating to
his occupancy of the same dwelling the Determination Order for which Tribunal was
issued to the Parties on 22nd February 2015 and which he said was still within the 21 day
period for appeal to the High Court. He argued that part of that Determination had set the
market rent for the dwelling to be €1,049 per month and that in the instant case the
Tribunal will be dealing with alleged arrears of rent, if any, the quantum of which could be
affected by the outcome of his proposed appeal in regard to the market rent issue. He
further argued that no calculation of rent arrears could be made based upon the monthly
rent of €1,049 which he said is not binding at this stage.
Mr Mullen, Counsel on behalf of the Respondents argued that the only issue before the
instant Tribunal relates to rent arrears since June 2015. In that regard he argued that if
the Appellant Tenant is successful in his Appeal before the High Court that any sum
outstanding will be factored in to any ensuing High Court decision. He said that it is his
clients’ proposition that the Tribunal should consider the quantum of the rent arrears issue
based upon the current rent of €1,000 and any adjustment calculation can be modified to
effect the ultimate decision in any such High Court Appeal. He said that that is a separate
issue from the matter of whether or not the Appellant Tenants are liable to pay rent up
until the point at which it is determined that he succeeds or not in his appeal.
Following an adjournment to consider the request the Tribunal informed the Parties that it
had decided to reject the adjournment request that had been based on the arguments put
forward by the Appellant Tenant. The Tribunal considers that it has the competence to
hear the evidence on the matter, that it is properly constituted to hear the case in relation
to rent arrears and will determine the outcome based upon the evidence that will be
adduced by each party including quantification of any such rent arrears notwithstanding
the outcome or outcomes of other possible litigation in the High Court that may or may
not proceed and that may or may not as a consequence amend monetary amounts due
by either party.
Suspicion and Perception of Bias
In the course of the Hearing the Appellant Tenant raised issues relating to his suspicion
and perception of bias on the part of the Chairperson of the Tribunal as well as on the
part of Panel Member, Nesta Kelly.
The Appellant Tenant based his suspicion and perception of bias on the part of the
Chairperson in the instant Tribunal on the fact that the Chairperson displayed knowledge
that his co-tenant is his sister and queried how that knowledge could be available without
having been briefed separately on the matter in relation to other PRTB cases in which he
has been involved. It was pointed out to the Appellant Tenant that the PRTB Case file
contains reference to his co-tenant as being his sister and when confronted with this fact
he agreed that the Tribunal Hearing should continue.
The Appellant Tenant based his suspicion and perception of bias on the part of Panel
Member, Nesta Kelly on the fact that she had been a Panel Member on a previous
Tribunal Hearing in relation to the same tenancy and that with a Dispute Resolution
Committee panel of some 40 persons, statistically it is not possible that there is an
algorithm making unbiased selections when Ms Kelly turns up twice on cases in which he
is involved. He further cited the fact that the Chairperson of the previous Tribunal had
also appeared in two separate PRTB cases in which he was involved. He expressed the
view that it is suspicious that Ms Kelly as a member of the Tribunal might be prejudiced
and biased and have a direct or indirect connection with the respondent.
The Tribunal adjourned to consider the allegation and when the Tribunal reconvened the
parties were informed that the Tribunal rejected the allegation based upon 1) That there
was no evidence of bias adduced to the Tribunal, 2) That Tribunals are constituted on the
basis of absolute independence, 3) That Panel Members are well practiced in hearing
cases De Novo 4) That the Tribunal membership is selected from a Panel 5) That cases
are heard under the same rights and privileges that pertain in the High Court and that the
High Court Judges may hear cases where repeat Parties appear before them without the
compunction to step aside 6) That in any case Tribunals consist of three persons and that
majority decisions are possible and are accommodated.
5. Submissions of the Parties:
The Appellant Tenants’ Case:
The Appellant Tenant gave evidence that he has not paid rent since his payment for the
month of June 2015. He argued the case that there is no tenancy agreement between the
Tenants and the Landlords and that there is no amount of rent agreed between the
parties. He said that if there is no agreement on the rent amount then the basis for
payment of rent does not exist. He further argued that he is not accruing rent arrears
pending a new tenancy agreement. He said ‘If there is no agreement between us, why
should we pay?’ He said that in such circumstances that he is entitled to live in the
dwelling rent free and that he is protected by the 2004 Private Residential Tenancies Act
in so doing. He said that he considers that he can stay in the dwelling until his protection
under the Act runs out, the timing of which he does not know.
The Appellant Tenant agreed that at the commencement of his occupation of the dwelling
in 2009 he did have a written lease agreement and that the last agreement was signed in
June 2011 for a 12 month period.
He argued that he should not be liable for damages arising from any non-payment of rent
because there is no evidence of loss on the part of the Respondent Landlords. He
expressed the view in regard to the letters from the Educational Building Society (EBS)
that were submitted by the Respondent Landlords that they could be fabricated and he
could not rely on them because there is nobody at the Tribunal to verify the letters and
they might be forged by the Respondent Landlords. He said that the documents
submitted do not clarify that the Respondent Landlords are in arrears of mortgage
repayments.
Cross Examination of the Appellant Tenant:
Under cross examination the Appellant Tenant clarified that he was not making
allegations of forgery but was questioning the copies that have been submitted and said
that he would need to see the originals. He agreed that he has not paid any rent for nine
consecutive months and asserted that he will pay rent again when there is a binding
agreement between the parties.
He agreed that section 28 of the Act apples to his tenancy of the dwelling and that he had
a written agreement in the first three years of occupation of the dwelling and that thus the
tenancy continued in being. In regard to the rent he had paid in the period since the
expiry of the last written tenancy agreement in 2012 he said that these payments
represent overpayment and that, though he has not done so yet, under the Statute of
limitations he has 6 years to institute any action against the Respondent Landlords in that
regard.
The Appellant Tenant asserted that the dwelling had been flooded on one occasion and
he had continued to pay rent despite the hardship this caused him. He questioned the
impact of the current situation upon the Landlord relating to inability to pay her mortgage
when she was still in a position to pay for solicitors and barristers. He said that she could
afford to pay €2,000 to her solicitors in the previous Tribunal. He said that there is no
evidence of loss or inconvenience on the part of the Landlords.
He asserted that he does not consider that he has arrears of rent accumulated. He said
that he applied for rent supplement in 2012 and that in the course of that application he
had referred to the payments he was making as rent. He said that he recently in early
2016 submitted a further application in respect of rent supplement which has not been
processed. In response to a query as to how he reconciled his position that he is seeking
rent supplement from the Government in respect of his tenancy but that the money he
had been paying to the Landlords was not in his view rent he said that if any amount were
to be paid back by order of the court he would be obliged to pay it back at that stage.
In response to a query from Counsel on behalf of the Respondent Landlords as to
whether he has any concern for the adverse financial position his actions have had on the
Landlords he said that he has no knowledge of such and that the Respondent Landlord
could be sitting on a mattress full of money. He said that he is not concerned. He further
asserted that the Act says that tenants should not take in to consideration the financial
position of the landlords.
The Respondent Landlords’ case:
The Respondent Landlord said that the Appellant Tenant last paid rent in June 2015. She
said that she and her co-landlord have not been able to meet their mortgage repayments
and her account has gone in to arrears. She gave evidence that the Landlords had
managed to pay the mortgage from their own funds for two months following the
discontinuation of rent payment by the Appellant Tenants but that they had to default after
that. She said that she is under stress and that she receives constant calls from the Bank
and that she has suffered sleepless nights. She said that both landlords attended their
respective doctors. She said that the bank has said that her credit rating will be affected.
She said that because of the stress created by the situation she and her co-landlord had
to engage a property management agent in the period from 2013 to 2015 and that that
agent stepped aside after two years because she too was not able to deal with the
Appellants. She said that the rent, which she gave evidence fell due on the 1st day of
each month, had originally been €1,100 per month and this had been reduced to €1,000
at the request of the Tenants.
The Respondent Landlord gave evidence that she had signed a rent allowance
application form on behalf of the Appellant Tenant in January 2016. She said that she had
signed such forms previously and that the property management agent had done so also.
Submission on the part of Mr Mullen:
Counsel on behalf of the Respondent Tenants drew the attention of the Tribunal to the
reference in the original tenancy agreement which stipulated that the rent fell due on the
1st of each month. He said that the Tribunal should determine the outstanding rent
arrears based upon the amount that was payable at the time from July 2015, being
€1,000 per month, rather than the newly determined amount of €1,049 per month which
the Tenant has indicated he will appeal to the High Court.
He put forward the case that the tenancy falls within the remit of the Act of 2004. He cited
s.28 of the Act which he said acted to create a Part 4 tenancy. He said that the tenant
had paid rent for a considerable period which he ceased to do after June 2015. He said
that such non-payment of rent constituted a breach of his obligation under s.16 of the Act.
He said that it was necessary for the Respondent Landlords to engage legal advice given
the difficult position that has been adopted by the Appellant Tenant. He said that the fact
that the Appellant Tenant had attacked members of the Tribunal further demonstrated the
need for the Respondent Tenants to engage legal advice in order to protect her position.
He argued that the entire approach of the Appellant Tenant should be taken in to account
in any award of compensation.
6. Matters Agreed Between the Parties
1) That the tenancy of the dwelling commenced on 1/08/2009
2) That the deposit paid at the commencement of the tenancy was €1,100
7. Findings and Reasons:
Findings and Reasons:
Having regard to all of the evidence as submitted and as adduced at the hearing the
Tribunal makes the following findings based on that evidence and on the balance of
probabilities as appropriate:
Finding No.1:
The Tribunal finds that the Appellant Tenants are residing in the dwelling under the
provisions of a tenancy agreement that comes within the jurisdiction of the Residential
Tenancies Act 2004 as amended.
Reasons: The Tribunal accepts the evidence of both parties that a tenancy of the dwelling
commenced on 1st August 2009 on foot of a written and signed agreement and accepts
that rent was paid in respect of the continued occupancy of the dwelling up to and
including the payment of rent that was made in respect of the month of June 2015.
The Tribunal notes the proposition put forward by the Appellant Tenant that there is now
no tenancy in existence and no agreement between the parties in relation to his ongoing
occupancy of the dwelling and that therefore no rent is due. This view he said is based
upon the argument that the last written agreement between the parties that was signed in
2011 was in respect of a period of 12 months which period has now elapsed and that no
further agreement was signed between the parties subsequent to that. The Tribunal
further notes the view as expressed by the Appellant Tenant that his occupancy of the
dwelling, even in the absence of payment of rent, will continue under the protection of the
Residential Tenancies Act 2004. The Tribunal further notes the response of the Appellant
Tenant when queried as to how he viewed the payments of rent he had made in the
interim since the expiry of the 12 month period within the final written lease agreement
which elapsed in June 2012 up to June 2015 and that his view in that regard is that such
payments are overpayment of rent.
The Tribunal rejects such propositions based firstly on the provisions s.3(1) of the Act
which states that the provisions of the Residential Tenancies Act 2004 apply to every
dwelling the subject of a tenancy and that the Tribunal was not presented with any
evidence that the residency in the dwelling is the subject of any of the exemptions from
the provisions of s.3(1) of the Act as set out in s.3(2). The Tribunal also has had regard to
the provisions of s.5(1) of the Act which provides that a tenancy includes a periodic
tenancy and a tenancy for a fixed term whether oral or in writing or implied. The Tribunal
is also cognizant of the provisions of s.28 of the Act which provide that where a tenancy is
in existence for a continuous period of 6 months it becomes a Part 4 tenancy that
continues the tenancy in being following 6 months continuous occupation of a dwelling.
Furthermore the Tribunal is cognizant of the provisions of s.30 of the Act which provide
that the terms of a Part 4 tenancy shall be those of the tenancy of which it is a
continuation. The Tribunal also has had regard to the provisions of s.41(1) of the Act
wherein it is provided that when a 4 year cycle of a Part 4 tenancy expires a new tenancy
comes in to being. The Tribunal considers that following the expiry of the most recent
written tenancy agreement between the parties an implied tenancy continued in being
and that this tenancy has since evolved in to a further part 4 tenancy which commenced
in August 2013. Thus it is the conclusion of the Tribunal that there is a tenancy in
existence that is subject to the terms of the Residential Tenancies Act and the last written
lease agreement in so far as it is consistent with the Act, in respect of the Appellant
Tenants’ occupation of the dwelling which conditions provide for the obligation on the
Appellant Tenants to pay rent.
Finding No.2:
The Tribunal finds that as of the date of the Tribunal Hearing (7th March 2016) the
Appellant Tenants are in rent arrears in the sum of €8,230.16 and that this sum shall be
paid by the Appellant Tenants to the Respondent Landlord.
Reason(s): The Appellant Tenant put forward the argument that there is no agreement in
regard to the payment of rent and that therefore no rent is payable in respect of his
occupancy of the dwelling. He further argued that as the Determination Order arising from
a separate dispute between the parties relating, amongst other things, to the ‘market rent’
had been received on 22nd February and is still within the 21 days period pending any
appeal to the High Court under s.123 of the Act, which action he averred to the Tribunal is
his intention to take and that the Tribunal should adjourn until that appeal is finalised. He
argued that even if accepting that some level of rent arrears is due the Tribunal cannot
determine the amount because whereas the rent up until June 2015 was €1,000 per
month and the Respondent Landlord has sought to increase the rent to €1,250 per month
and the separate Tribunal has determined that the market rent is €1,049 per month and
that he intends to appeal that determination to the High Court under s.123 of the Act there
is no definition of the monthly rate to be applied in any calculation. He further argued that
there is no agreement in regard to the date on which any rent owing is to be paid.
Counsel on behalf of the Respondent Landlords put forward the case that even if the
Appellant Tenant does lodge an Appeal to the High Court under s.123 of the Act, which
he has not done as of the date of the instant Tribunal Hearing, that Court will in its
wisdom determine whether the relevant Determination Order is upheld or is to be set
aside. In the event that the Determination Order is set aside then the €1,000 per month
previously agreed rent will be payable. In the event that such Determination Order is
upheld then any amount outstanding will be readily reckonable by the Court. He said that
he considered that in the light of the potential reference to the High Court, the Tribunal
should not factor in the amount of €1,049 per month as determined by the said previous
Tribunal (Ref: TR0215-001045) in regard to the calculation of any quantum of rent
outstanding and that it should be based upon the original rent that pertained prior to issue
of the notification of rent increase being €1,000 per month. The first matter to be
determined by the Tribunal relates to whether rent arrears are due and owing and the
second aspect of that relates to the quantum of any such rent.
The Tribunal considers that under the provision of s.16(a)(i) of the Act rent is due in
respect of the Appellant Tenants’ occupation of the dwelling in the period from 1st July
2015 to the date of the Tribunal Hearing. The Tribunal further finds that rent falls due on
the 1st Day of the Month in accordance with the evidence provided on the part of the
Respondent Landlords. The Tribunal further considers that on the date of the Tribunal
Hearing being 7th March 2016 the rent in respect of the tenancy is €1,049 per month as
determined by previous Tribunal (Ref TR0215-001045). This may or may not be altered in
the course of any, as then yet uninitiated, reference to the High Court under the
provisions of s.123 of the Act. Notwithstanding that as the original dispute relating to this
Tribunal was based upon the rent of €1,000 the Tribunal has noted the argument made
by Counsel on behalf of the Respondent Landlords that the rent arrears should be
calculated at the rate of €1,000 per month. This is a lesser monthly rent than that which
pertains under the Determination of the previous Tribunal. In the light of the submission
on the part of Counsel on behalf of the Respondent Landlords the Tribunal has calculated
the arrears being sought at the rate of €1,000 per month. The period over which rent
arrears are outstanding as of the date of the Tribunal Hearing is 8 months and 7 days.
The Tribunal is also conscious that in any ensuing High Court Case there is a possibility
that the period of arrears and thus the amount of rent outstanding may also need to be
adjusted to take account of the facts at the time of such High Court Hearing and decision.
On the basis of the monthly rent being €1,000
The amount of arrears is calculated as 8 X €1,000 = €8,000 for the 8 months
The Daily Rate in respect of the rent is €1,000 X 12 ÷ 365 = €32.88
Plus 7 X Daily Rate = 7 X €32.88 = €230.16
Total Rent Arrears in respect of 8 months and 7 days = €8,230.16
Finding No.3:
The Tribunal finds that the Respondent Landlords have suffered as a consequence of
being deprived of the monthly rental amounts and awards the sum of €1,000 in damages
to be paid by the Appellant Tenants to the Respondent Landlords.
Reason(s): The Tribunal has found that there is a sum of €8,230.16 outstanding in rent
arrears and that the Landlords have been deprived of the use of that sum. In particular
the Landlords have been in arrears in their mortgage payments and have been told by
their lending agency that their credit rating will be affected. The Tribunal notes the
contents of the letters the Landlords received from their lending agency wherein it is
stated ‘…..as outstanding arrears may be reported to the Irish Credit Bureau/other credit
reference agency or credit register which will affect your credit rating.’ The Tribunal
considers that the Landlords have suffered distress, inconvenience, loss, and expense
that has been caused by the non-payment of rent.
Finding No.4:
The Tribunal finds that the Appellant Tenants shell be liable to pay costs in the sum of
€2,167.50 to the Respondent Landlords in respect their Legal Costs.
Reason(s): The Respondent Landlords submitted evidence of the legal costs they
incurred which they argued was reasonable in the circumstances of the unreasonable
approach of the Appellant Tenants in this case. The Tribunal considers that the approach
of the Appellant Tenants was unreasonable and such unreasonableness constituted
extraordinary circumstances as envisaged under the provisions of s.5(4) of the Act. The
Tribunal has sought and obtained the consent of the Board to the award of such costs as
required under the provisions of s.5(4) of the Act.
8. Determination:
Tribunal Reference TR1215-001535
In the matter of Piotr Nowak, Agnieszka Nowak (Tenant) and Andrea Hogan, Sinead
Rossiter (Landlord) the Tribunal in accordance with section 108(1) of the
Residential Tenancies Act 2004, determines that:
The Respondent Tenants shall pay the Total sum of €11,397.66 to the Respondent
Landlords within 56 days of the date of issue of this Order being rent arrears in the
sum of €8,230.16 plus damages of €1,000 in respect of the consequences of the
Appellant Tenants’ breach of their obligation to pay rent in accordance with the
provisions of s.16(a)(i) of the Act and costs in the sum of €2,167.50 deemed to fall
within the category as set out in s.5(4) of the Act all in respect of the tenancy of the
dwelling at 1F Rathborne Close, Ashtown, Dublin 15.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
08 April 2016.
Signed:
John Tiernan Chairperson
For and on behalf of the Tribunal.

 

Canty v Private Residential Tenancies Board and another

 

Heard in a higher court: Decision reversed by the Supreme Court (Ireland) in [2008] IESC 24
Neutral Citation: [2007] IEHC 489, [2007] IEHC 243
Reported In: [2007] 8 JIC 0801, 2008 13 1 CPLJ 21
Docket Number: No. 519 SP/2006, [No. 1286 J.R./2006], 2006 No. 519 SP
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Miss Justice Laffoy, Mr. Justice William McKechnie

By way of general observation, the court is concerned with issues of law which are properly raised concerning the determination order of 6th October, 2006. Any position adopted by the Board or the landlord after 6th October, 2006 has no bearing on the outcome of this appeal.

Section 123(3) provides that any of the parties concerned in dispute resolution under the Act of 2004 may appeal to the High Court from a determination of the Tribunal (as embodied in a determination order) on a point of law. Sub-section (5) provides that the High Court may, as a consequence of the determination it makes on such appeal, direct the Board to cancel the determination order concerned or to vary it in such manner as the court specifies.

In addressing the issue as to which of the 22 items particularised by the applicant are points of law for determination by the court, counsel for the Board prefaced his submissions by making two general observations.

First, he referred to the multiplicity of proceedings which have been initiated by the applicant in relation to his tenancy, to which I have already alluded.

Secondly, it was submitted that, if the applicant had what might be loosely termed a judicial review point, the time to object was before the Tribunal, citing the decision of the Supreme Court inCorrigan v. Land Commission [1977] I.R. 317. Therefore a challenge to the make up of the Tribunal should have been made at the time of its appointment. On that point, I note that, while it is clear from the transcript that the applicant did challenge the makeup of the Tribunal appointed to deal with the 2006 dispute at the July, 2006 hearing, he did not pursue that matter by way of judicial review. Counsel referred to the decision of the Supreme Court in Dublin Wellwoman Centre Limited v. Ireland [1995] I.L.R.M. 408 and submitted, referring to the judgment of Denham J. at p. 418, that, where a challenge to an adjudicator is based on perceived bias, the standard is very high. Prior exposure to the issue in dispute, without more, is not sufficient. Aside from that argument, counsel submitted that a challenge to a tenancy tribunal on the ground of perceived bias is not a point of law in the sense of s. 123(3). What s. 123(3) is concerned with is an error in the decision, not an error of jurisdiction. In this connection, counsel referred to the decision of the Supreme Court in Faulkner v. Minister for Industry and Commerce [1997] E.L.R. 106. In defining the distinction between an issue in respect of which the appropriate procedure and remedy is judicial review, as opposed to a statutory appeal on a point of law, O’Flaherty J. stated at p. 111:

“It is clear that judicial review is appropriate where the method or manner by which the decision is reached is attacked rather than the actual decision itself.”

The issue before the Supreme Court in that case was the failure of the Labour Court to give reasons for its decision. O’Flaherty J. stated that he was inclined to the view that failure to give adequate reasons was not a point of law, although, like the High Court in the matter, he took a pragmatic view and dealt with the issue.

Thirdly, counsel for the Board entered a caveat against this Court taking a pragmatic view, as had happened in theFaulkner case. In that case, the challenge to the relevant tribunal, the Labour Court, did not bear on the integrity of the members. What the applicant was attempting to advance in this case was a challenge on the basis that the members of the Tribunal had an animus against the applicant. Before being allowed to advance such an argument, it was submitted, the members should have an opportunity to know in advance what was being alleged and to deal with it on affidavit. But, in any event, counsel submitted that the basis on which the Board had come to court on this application was to defend the determination within its four corners, not to answer an attack on jurisdictional grounds.

Fourthly, counsel pointed to the material differences between the special summons procedure under which an appeal on a point of law is litigated (where the proceedings have been commenced before the commencement of Orders 84B and 84C of the Rules of the Superior Courts, 1986 in February of this year) and judicial review procedure. Under judicial review procedure it is necessary to obtain leave to prosecute the complaint, whereas a special summons may be issued without leave. Further, an application for leave to proceed by way of judicial review must be supported by a statement of grounds and, if the contention is that the adjudicator hadanimus against the applicant, the allegations must be set out with particularity.

Addressing the alleged manifest errors of law identified by the applicant in the original particulars and the further particulars, counsel for the Board accepted that the following items raised points of law in the sense of s. 123(3): items 6, 7, 9, 10 in the original particulars in combination with 11 in the original particulars, but not 10 in the further particulars, 14, and 15. In relation to item 12, counsel’s understanding was that the point being made was a matter as between the landlord and the tenant and did not engage the Board. However, counsel accepted that, if the point being raised related to whether it was permissible to serve the two notices of termination, it was a point of law. In his response, the applicant explained that his point was that the services of two notices contravened s. 34 of the Act and that what he described as “the retake” notice must fail under para. 4(b)(ii) of the Table in s. 34. In relation to item 13, counsel acknowledged that, if the issue was whether it was open to the landlord to serve the two notices of termination, that raised a point of law. However, counsel’s interpretation of the reference to “bona fide” in item 13 was that the applicant was contending that the Board had not acted bona fide and submitted that that would be a judicial review point. However, in his response the applicant explained that in item 13 he was referring to the manner in which the Board approached the issue of the bona fides of the landlord. In relation to item 22, in which the applicant sought that, should he prevail, the court should “commit the matter to a Jury List for assessment of the [applicant’s] damages pursuant to, inter alia… s. 14 [of the Act of 2004]”, counsel submitted that the question of damages would only arise as a consequence of a finding of ultra vires. There was no error on the part of the Board and ex hypothesi there was no point of law. In response, the applicant explained that the reference to damages in item 22 was damages not against the Board but against the landlord and he referred to s. 14 and s. 115(2)(d) of the Act of 2004. Following that explanation, counsel for the Board submitted that, in effect, what the applicant is saying is that the Board did not exercise its jurisdiction properly. Therefore, no point of law arises; it is a judicial review point.

Counsel submitted that all of the other points itemised in the original particulars and the further particulars were not points of law within the meaning of s. 123(3) and that, insofar as they could give rise to a remedy at the suit of the applicant, they should have been pursued by way of judicial review.

The applicant’s response was that the distinction which the Board was asserting between proceeding by way of special summons and proceeding by way of judicial review was of “constitutional moment”. He submitted that there was nothing in the Act to give an intended litigant notice that in the selection of the form of procedure one was at one’s peril. Was s. 123(3) intended to be coded language to the effect that one better go the judicial review route and not by way of special summons, he asked rhetorically, suggesting that it was not intended to be trap for unwary litigants. Where is the boundary between a question of law and a mixed question of fact and law, he queried. He submitted that the determination of the Tribunal includes its processes. Its rules are rooted in statute and an applicant is entitled to rely on them being properly complied with.

Having heard the submissions, I ruled that the following items, all of which are paraphrased later, in the original particulars and as elaborated on in the further particulars constitute points of law which are justiciable under s. 123(3): item 6; item 7; item 9; items 10 and 11 in the original particulars, but not item 10 in the further particulars; item 12; item 13; item 14; and item 15.

I ruled that all of the other items, including item 22 in respect of which I considered that the court had no jurisdiction, did not raise points of law and could not be pursued.

Although this may be an unusual approach to adopt, for the reasons set out earlier, I propose first setting out in general terms my views on the validity of the Tribunal’s determination of 6th October, 2006 and the Board’s determination order of that day. I will do so by reference to the provisions of the Act of 2004 invoked by the applicant and deal in broad terms with the arguments he advanced in respect of them. Later, I will address further the specific points of law raised by the applicant which I consider to be justiciable in these proceedings.

Section 86 of the Act of 2004 provides as follows:

2 “(1) Subject to sub-section (2), pending the determination of a dispute that has been referred to the Board (but subject to that determination when it is made) –

(a) the rent payable under the tenancy concerned and the rent payable under any sub-tenancy arising out of it shall continue to be payable,

(b) if the dispute relates to the amount of rent payable, no increase in the amount of the rent may be made, and

(c) a termination of the tenancy concerned may not be effected.

(2) Sub-section (1) does not apply if –
(a) in the case of paragraph (a) of that sub-section, the parties concerned agree to payment of the rent being suspended,

(b) in the case of paragraph (b) of that sub-section, the parties concerned agree to an increase in the amount of the rent being made,

(c) in the case of paragraph (c) of that sub-section (unless the dispute is a dispute specified in sub-section (3)), the notice of termination concerned was served –

(i) before the dispute was referred to the Board for resolution, or

(ii) after the dispute was so referred and the required period of notice to be given by the notice of termination is 28 days or less and that period of notice has been given, or

(d) in any of the cases, the dispute is not dealt with, or ceases to be dealt with, under this Part pursuant to section 82, 83, 84 or 85.

(3) The dispute mentioned in sub-section (2)(c) is a dispute relating to the validity of the notice of termination concerned or the right of the landlord or tenant, as appropriate, to serve it.”

The purpose of s. 86 is to maintain the status quo between a landlord and a tenant pending the determination of a dispute referred to the Board for resolution.

Although the 2005 disputes were still pending in February and March, 2006 and were not finally determined until the determination order of 19th April, 2006 was made, in my view, s. 86 did not act as a bar to the landlord taking the initiatives which became the subject of the 2006 disputes for the following reasons:

(a) In relation to the “A” dispute, para. (b) of sub-s. (1) of s. 86 had no application because the 2005 disputes did not involve any dispute relating to “the amount of rent payable”.

(b) In relation to the “B” dispute, the notice of termination in issue, the first notice served on 13th March, 2006, fell within the ambit of para. (c) of sub-s. (2), so as to disapply sub-s. (1), in that –

(i) it did not fall within the ambit of sub-s. (3), because there was no dispute pending in relation to the validity of that notice or the right of the landlord to serve it, and

(ii) while served after the 2005 disputes were referred, the required period of notice to be given was 28 days and that period of notice was given.

As I have recorded, on 27th January, 2006, the Tribunal had ruled that a purported notice of termination served by the landlord on the applicant on 18th March, 2005 was invalid. Clearly, the landlord accepted that ruling. Nothing in s. 86 prevented the landlord from mending his hand and serving a 28-day notice of termination on the ground of failure to pay rent due.

(c) In relation to the “C” dispute, sub-s. (1) of s. 86 precluded the termination of the tenancy being effected on foot of the second notice of termination dated 13th March, 2006 prior to the Board making its determination on the 2005 disputes, but it did not preclude the service of the notice.

Turning to the substance of the “A” dispute, in the applicant’s reference dated 22nd March, 2006, the alleged invalidity of the rent increase was premised on failure to comply with s. 22, which is in Part 3 of the Act of 2004. That Part deals with rent and rent reviews.

Section 19 prohibits the setting of rent at any time above the market rent for the tenancy at the relevant time, whether the initial setting of the rent under the tenancy or any subsequent setting of the rent by way of review. Sections 20 and 21 regulate the frequency with which rent reviews may occur and the right to review where none is provided for. Section 22, in so far as it is pertinent for present purposes, provides as follows:

2 “(1) The setting of a rent (the ‘new rent’) pursuant to a review of the rent under a tenancy of a dwelling and which is otherwise lawful under this Part shall not have effect unless and until the condition specified in sub-section (2) is satisfied.

(2) That condition is that, at least 28 days before the date from which the new rent is to have effect, a notice in writing is served by the landlord on the tenant stating the amount of he new rent and the date from which it is to have effect.”

Sub-section (3) deals with the time limited for referring a dispute in relation to a rent review to the Board and is not material.

Sub-section (2) of s. 24 provides that references in Part 3 to “a review of rent” include references to –

“(b) the effect of the operation of a provision of a … tenancy agreement providing that, by reference to any formula, happening of any event or other matter whatsoever (and whether any act, decision or exercise of discretion on the part of any person is involved or not), such … increase [in the amount of rent for the time being payable under the tenancy] shall have effect,”

Sub-section (3) of s. 24 provides that references in Part 3 to the setting of a rent are references, in the context of a review of rent, in the case of a provision of the kind referred to in sub-s. (2)(b), to the rent being set by the operation of that provision.

The rent increase provided for in clause 8 of the tenancy agreement to which the landlord was to be entitled if the applicant extended the tenancy from 1st October, 2005, while agreed at the outset, was not to come into effect until the happening of an event, the extension by the applicant of the tenancy beyond 1st October, 2005. The effect of the operation of that element of clause 8 fell within the ambit of s. 24(2)(b), so that such effect is deemed a review of the rent under Part 3. Therefore s. 22 applied when the landlord sought to increase the rent in February, 2006 and 28 days’ notice was required under s. 22. As the required notice was not given, the rent increase did not have effect.

Accordingly, the reasoning of the Tribunal on the “A” dispute was not correct in law. The Board erred in law in determining that a valid notice of increase of rent was served by the landlord on 23rd February, 2006.

As regards the “B” dispute, the provision of the Act of 2004 governing the requisite period of notice for termination where the tenant is in default is s. 67. Section 67, insofar as it is relevant for present purposes, provides as follows:

2 “(1) This section applies where the tenancy is being terminated by the landlord by reason of the failure of the tenant to comply with any of the obligations of the tenancy.

(2) Where this section applies the period of notice to be given by the notice of termination is –

(a) 7 days, if the tenancy is being terminated by reason of the behaviour of the tenant that is –

(i) … anti-social …, or
(ii) threatening the fabric of the dwelling …
or
(b) 28 days, if the tenancy is being terminated –
(i) for any other reason (but not a failure to pay an amount of rent due), or

(ii) for failure to pay an amount of rent due and the condition specified in sub-section (3) is satisfied,

regardless of the duration of the tenancy.

(3) The condition mentioned in sub-section (2)(b)(ii) is that the tenant has been notified in writing by the landlord that an amount of rent due has not been paid and fourteen days elapse after the receipt of that notice without the amount concerned having been paid to the landlord.”

The position, accordingly, is that, where a landlord is terminating a tenancy for failure to pay rent, two steps have to be taken to give the requisite period of notice: first, the landlord must notify the tenant that an amount of rent has not been paid and allow fourteen days to elapse from the receipt of that notice; and, secondly, if the amount concerned has not been paid within the period of fourteen days, the landlord must give the tenant 28 days notice of termination. In my view, the landlord properly implemented both steps. First, by the letter of 23rd February, 2006 the landlord notified the applicant in writing that €700 rent was due in respect of February, 2006, as well as arrears totalling €7,700 in respect of the previous eleven months. Secondly, after more than fourteen days had elapsed without the applicant having paid any of the outstanding rent to the landlord, on 13th March, 2006 the landlord served the notice of termination giving the applicant 28 days notice. The finding of the Tribunal that the letter of 23rd February, 2006 complied with s. 67(3) was correct, but that did not necessarily determine the validity of the first notice of termination dated 13th March, 2006.

While compliance with s. 67(2) and (3) was all that would have been required to terminate a tenancy to which Part 4 did not apply, it was not all that was required to terminate a Part 4 tenancy, because s. 57(b) provides that the requirements set out in Part 5 for valid termination of a tenancy are “in addition to the requirements” of Part 4 with regard to the termination of a Part 4 tenancy.

It was held by the Tribunal on 27th January, 2006 that the applicant held under a Part 4 tenancy. Such tenancy could only have been terminated in accordance with s. 34. Where a landlord is terminating in reliance on failure of the tenant to comply with any of his obligations, other than failure which in general terms amounts to anti-social behaviour, to come within ground 1 of the Table in s. 34, the following conditions stipulated in that ground must be complied with:

a “(a) the tenant has been notified of the failure by the landlord and that notification states that the landlord is entitled to terminate the tenancy if the failure is not remedied within a reasonable time specified in that notification, and

(b) the tenant does not remedy the failure within that specified time.”

Additionally, having established the existence of ground 1, the landlord must serve notice of termination giving the required notice by reference to s. 67(2) and (3).

The Tribunal did not expressly address the issue of compliance with the conditions stipulated in ground 1 of s. 34 in its findings. However, the landlord was alive to them and the explanation given to the court for the service of the letter of 7th March, 2006 was that it was served for the purpose of complying with those conditions stipulated in s. 34.1.

In my view, the provisions of the Act of 2004 for the valid termination of a Part 4 tenancy for non-payment of rent are very technical and confusing. It is difficult to understand why, in relation to non-payment of rent, the notification required by para. (a) of ground 1 in s. 34 could not have been made co-terminous with the notification under s. 67(3). As it has not been, it seems to me that prudence dictates that a landlord invoking ground 1 should serve notice in the form required by para. (a) on the tenant allowing at least fourteen days for remedying the breach, that is to say, discharging the outstanding rent, although, on the facts of a particular case, that period might not constitute a “reasonable time” within the meaning of para. (a).

The Tribunal did not adjudicate on whether the letter of 7th March, 2006, which post-dated the notification for the purpose of s. 67(3) and only allowed three days for remedying the failure, complied with the requirements of ground 1 of s. 34. I am not satisfied that the existence of ground 1 was established by the landlord. In the circumstances, notwithstanding the egregious breach by the applicant of the terms of his tenancy and of the interim determination order made on 15th February, 2006, and notwithstanding that the applicant did not pinpoint the precise infirmity in the landlord’s invocation of ground 1 in s. 34, it is not possible to hold that the first notice of termination of 13th March, 2006 was validly given. The only courses open to the court under s. 123(5) are to let the determination order of 6th October, 2006 stand or to vary it. Despite having considerable sympathy for the landlord, I have come to the conclusion that the determination as to the validity of the first notice of 13th March, 2006 cannot stand.

In relation to the “C” dispute, and, indeed, the “B” dispute, the starting point is the finding by the Tribunal that the applicant’s tenancy was a Part 4 tenancy. Section 33 of the Act of 2004 provides that a Part 4 tenancy may not be terminated save in accordance with s. 34. Section 34 sets out six grounds on which a tenancy may be terminated. The ground invoked by the landlord to which the “C” dispute relates (the “B” dispute having related to ground 1) was ground 4 which provides as follows:

“The landlord requires the dwelling … for his or her own occupation or for occupation by a member of his or her family and the notice of termination (the ‘notice’) contains or is accompanied, in writing, by a statement -”

(a) specifying –

(i) the intended occupant’s identity and (if not the landlord) his or her relationship to the landlord, and

(ii) the expected duration of that occupation,

and
(b) that the landlord, by virtue of the notice is required to offer to the tenant a tenancy of the dwelling if the contact details requirement is complied with and the following conditions are satisfied –

(i) the dwelling is vacated by the person referred to in sub-paragraph (a) within the period of six months from the expiry of the period of notice required to be given by the notice or, if a dispute in relation to the validity of the notice was referred to the Board under Part 6 for resolution, the final determination of the dispute, and

(ii) the tenancy to which the notice related had not otherwise been validly terminated by virtue of the citation in the notice of the grounds specified in paragraph 1, 2, 3 or 6 of this Table.”

Section 34 expressly provides that a Part 4 tenancy may be terminated “on one or more of the grounds” set out in the Table if notice of termination giving the required period of notice is served and the notice cites as the reason for termination “the ground or grounds concerned” and in the case of ground 4 contains a statement in the terms of paras. (a) and (b) quoted above.

Where a tenancy is being terminated on ground 4 the required notice is governed by s. 66 of the Act of 2004. That section provides that, where the duration of the tenancy is one year or more but less than two years, the notice period is 42 days. For the purposes of Part 5 of the Act of 2004, in which s. 66 is to be found, the expression “duration of tenancy” has a specific meaning which is defined in s. 61(2) as follows:

“A reference in this Part to the duration of a tenancy is a reference to the period beginning on the date on which the tenancy came into existence or the relevant date, [1st September, 2004per S.I. 505 of 2004] if later, and ending on the date of service of the notice of termination concerned.”

That provision was not adverted to in the Tribunal’s determination.

The applicant’s tenancy came into existence on 22nd September, 2004. The notice of termination in reliance on ground 4 was served on 13th March, 2006. Accordingly, the duration of the tenancy for the purposes of the application of s. 66 was one year or more but less than two years, so that the requisite notice period was 42 days. Assuming that on 13th March, 2006 the applicant was not holding under a fixed-term lease for a term extending beyond 24th April, 2006, the second notice of termination dated 13th March, 2006, which provided for 42 days notice, gave the required notice to terminate the tenancy on ground 4 in s. 34. That assumption, that it was not a fixed-term lease, is correct because, although the applicant had an entitlement, by virtue of clause 8 of the tenancy agreement, to extend the term for twelve months from 1st October, 2005 to 30th September, 2006, that entitlement was subject to the provision of clause 7.1 which gave the landlord the right to “break” the tenancy on and from 1st November, 2005 provided the landlord intended to occupy the Property as his only or main home. Provided the contractual right to “break” the tenancy was exercised in a manner compatible with the invocation of ground 4, the contractual right did not constitute “contracting out” of Part 4 of the Act of 2004, which is prohibited in s. 54. The landlord did so exercise his contractual right in serving the second notice of 13th March, 2006. Moreover, s. 58(3) of the Act of 2004, to the extent that it precludes the use of the notice of termination procedure to shorten the duration of a fixed-term lease, had no application.

For the foregoing reasons, I consider that the Board, in determining that the second notice of termination dated 13th March, 2006 was valid, was correct in law.

I propose specifically addressing now the points raised by the applicant which I consider to be justiciable points of law for the purposes of this appeal, insofar as they have not already been addressed.

The applicant contended that what he referred to as the two “purported” notices of termination of tenancy of 13th March, 2006 violated s. 86 of the Act of 2004 and that the Tribunal erred in law in finding them to be valid and that the Board erred in law in adopting and incorporating that finding in the determination order of 6th October, 2006.

As I understand the point being made by the applicant it is that, pending the determination of the 2005 disputes, which the applicant contended occurred on the expiration of 21 days from 19th April, 2006 (the date of the determination order in relation to the 2005 dispute), the landlord could not serve a valid notice of termination.

That argument raises a number of questions in relation to the proper construction of s. 86.

The first is the meaning of “pending the determination of a dispute”. The applicant’s argument is predicated on the assumption that a dispute is pending until a determination order made by the Board has become binding on the parties. In the case of a determination order embodying the terms of a determination of the Tribunal, by virtue of s. 123(2),that happens on the expiration of the period of 21 days beginning on the date that the determination order is issued to the parties unless, before that expiry, an appeal is made to the High Court on a point of law under s. 123(3). On the basis of that interpretation, as there was no appeal against the determination order of 19th April, 2006, the 2005 disputes would not have been determined until around 10th May, 2006. An alternative interpretation is that the expression “pending the determination of a dispute” in sub-s. (1) of s. 86 means pending the making of a determination order. However, that argument was not advanced by any party and, for present purposes, I am assuming that the applicant’s interpretation is correct.

Secondly, what s. 86(1)(c) prohibits is a termination of a tenancy being “effected” and a question arises as to what that means and whether it is distinguishable from the service of a notice of termination. In my view, “effected” must be given its plain meaning, namely, that the termination of the tenancy was brought about, or accomplished, or consummated. That there is a distinction between the termination of a tenancy being effected and the service of a notice of termination is obvious as a matter of common sense: a notice of termination must specify the termination date, that is to say, the day on which the tenancy will terminate (s. 62(1)(f)), which is fixed by reference to the required notice period. The service of the notice does not effect termination; the expiry of the required notice period does. It is also clear from s. 86(2)(c) itself. In the case of service after the referral of a dispute, sub-s. (2)(c) by implication draws a distinction between circumstances in which 28 days or less notice is required and circumstances in which longer notice is required. In the case of the former, sub-s. (1)(c) is disapplied in relation to a notice which is not within the scope of sub-s. (3), which means that the notice can be served and the termination of the tenancy effected notwithstanding the pendency of the dispute resolution process. In the case of the latter, there is no prohibition on the service of the notice of termination but, as sub-s. (1) is not disapplied, it will not operate to effect the termination of the tenancy during the pendency of the dispute resolution process. I assume that the rationale underlying the distinction is that under the Act of 2004 the shorter periods of notice relate to situations of default by either the landlord or the tenant which require to be urgently addressed (for example, anti-social behaviour on the part of the tenant) and situations in which the duration of the tenancy is less than six months, whereas the longer notice periods relate to situations in which the tenant has been in occupation for longer than six months and has the protection of Part 4.

Whatever the rationale, the distinction is there. In this case it means that, if the landlord was entitled to serve the first notice of termination dated 13th March, 2006, as that notice came within the ambit of sub-s. (2)(c), the termination of the tenancy would have been effected at the expiry of the notice notwithstanding that the 2005 disputes were still pending. However, in the case of the second notice of termination dated 13th March, 2006, if the notice was validly served, it could not have effected a termination of the tenancy pending the determination of the 2005 disputes, that is to say, until after 10th May, 2006. However, in my view, after 10th May, 2006 that notice of termination was capable of effecting a termination of the tenancy.

For completeness, I find that the applicant’s submission by reference to sub-ss. (1) and (2) of s. 58 that a tenancy is terminated upon the service of notice of termination is also incorrect.

The applicant also raised the question of the propriety of what he referred to as “two reciprocally incorporated by express reference purported” notices of termination being served simultaneously on 13th March, 2006. This refers to the fact that the second notice was expressed to be without prejudice to the landlord’s entitlement to terminate the tenancy on an earlier date on account of non-payment of rent, that being a reference to the first notice. It is quite clear from s. 34 that it is open to a landlord to invoke one or more of the grounds set out in the Table to that section.

In summary, a Part 4 tenancy is not terminated until the expiry of the notice period provided for in a notice of termination which complies with Part 5 of the Act of 2004. In the case of a notice of termination served after a referral of a dispute to the Board which does not come within sub-s. (2)(c) of s. 86, as I have already stated, the effect of s. 86(1)(c) is to prevent the tenancy being treated as terminated notwithstanding the expiration of the relevant notice period. That means that termination which, apart from that provision, would have been effected is effectively suspended until the determination is made. When the determination is made, if it contains a provision which is material, that provision takes effect, because s. 86(1) is expressed to be subject to “that determination when it is made”. However, in this case, there was never going to be a provision in the determination order made on foot of the 2005 disputes which would be material to any issue as to the termination of the applicant’s tenancy, because of the ruling in favour of the applicant made by the Tribunal on 27th January, 2006 in relation to the notice of termination served on 18th March, 2005 and because the invocation by the landlord of ground 4 of s. 34 was not an issue in the 2005 disputes.

The applicant contended that the Board, by the determination order dated 6th October, 2006, which was predicated on the Tribunal’s determination of the same date, erred as a matter of law in its interpretation of and/or application of s. 67 of the Act of 2004 to the uncontested facts.

The applicant was correct in his submission that compliance with s. 67(3) is a condition precedent to the service of a valid notice to terminate under s. 67(2)(b) for failure to pay an amount of rent due. He was not correct in submitting that the condition precedent was not complied with on any of the bases he advanced.

His contention that no “amount of rent due” was “knowable” prior to 13th March, 2006 does not stand up. This argument is premised on the fact that he had a right of set-off in respect of whatever sum the Tribunal would award him in respect of his claim in the 2005 disputes against rent due and until the final determination of the Tribunal on the 2005 disputes the amount of rent due by him was not “knowable”. This argument overlooks the fact that under s. 86, a section relied on by the applicant, the rent payable by him under the tenancy agreement continued to be “payable”, not merely to accrue. The position as at 23rd February, 2006 was that, as the letter of that date stated, the rent for the month of February, 2006 was outstanding and the rent for the previous eleven months was outstanding. The letter of 23rd February, 2006 correctly notified the applicant in writing that an amount of rent due had not been paid.

In relation to the other points made by the applicant in relation to the application of s. 67(3), I make the following observations, reiterating, however, that I am not satisfied that ground 1 of s. 34 was established, so that the observations are not in any way determinative:

(a) The simultaneous service of the two letters of 23rd February, 2006 in the same envelope did not in any way impact on the efficacy of the notice informing the tenant that an amount of rent was due. The letter which complied with s. 67(3) dealt with the historic situation in relation to rent which was then due. The second letter the purpose of which was to invoke the landlord’s entitlement to the increase in rent from 1st March, 2006 was concerned with future liability for rent. The second letter could not have caused any confusion.

(b) Nor did the letter of 7th March, 2006 affect the efficacy of the letter of 23rd February, 2006 as a notification for the purposes of s. 67(3). The letter of 7th March, 2006 did not contradict in any material manner the earlier notification. However, I am not prepared to hold that it sufficed for the purposes of s. 34.1(a).

(c) Insofar as it is implicit in the applicant’s submission that s. 67(3) notification which does not “demand” payment of the rent due does not comply with the section, in my view, that submission is incorrect. What s. 67(3) requires is a notification by the landlord to the tenant in writing of the amount of rent due followed by fourteen days’ grace to allow the tenant to remedy his breach before the service of a notice of termination for failure to pay rent. In this case, the landlord, in the letter of 23rd February, 2006, complied with that requirement. However, that letter did not comply with the requirement of para. (a) in ground 1 of s. 34.

To paraphrase the substance of these items, one argument advanced by the applicant was that the Board erred in law in not finding that the duration of the applicant’s tenancy as of 13th March, 2006 as being two years or more but less than three years, so as to necessitate a notice period of 56 days to validly terminate it on ground 4 in s. 34.

The applicant’s submission is wrong in law because it does not take account of the fact that in the application of the Table contained in s. 66 of the Act of 2004, the expression “duration of tenancy” has the meaning ascribed to it in s. 61(2). As I have already outlined, the applicant’s entitlement to an extension of a tenancy for one year from 1st October, 2005 under clause 8 of the tenancy agreement was expressly subject to the right of the landlord to “break” the tenancy if he required the property for his only or main home. That was the bargain between the parties freely entered into. The landlord exercised his right under clause 7(1) on 13th March, 2006 in a manner compatible with the invocation of ground 4 in s. 34 and served notice of termination on that date in accordance with ground 4. At that time the tenancy had been in existence for less than two years. The relevant period of notice, as I have stated earlier, was 42 days.

It may be helpful if I elaborate on why I have concluded that s. 58(3) had no application. Section 58 generally lays down that the methods of termination of a tenancy (whether by a landlord or tenant) which previously existed (notice to quit, forfeiture, surrender and such like) no longer apply to a tenancy of a dwelling. Section 58(3) in effect provides that the Part 5 notice of termination provisions shall be implied into certain tenancies, for example, a tenancy to which Part 4 does not apply by virtue of s. 25, but goes on to include the following qualification –

“(but, in case of a tenancy that is for a fixed period, unless it provides otherwise, only where there has been a failure by the party in relation to whom the notice is served to comply with any obligations of the tenancy.)”

The applicant referred the court to the following passage in an article by Ruth Cannon in Conveyancing and Property Law Journal, Vol. 10, No. 4, on “Termination of Tenancies under the Residential Tenancies Act,2004: the New System”

“… section 58(3) makes clear that a notice of termination cannot be used to shorten the period of a fixed-term lease unless there has been a prior failure by the party on whom the notice is served to comply with any obligations of the tenancy so as to justify utilising the termination for breach procedure in ss. 67 or 68 of the Act.”

The obvious purpose of s. 58(3) is to ensure that contractual rights of a tenant which are more beneficial than the statutory rights conferred by the Act of 2004 are not interfered with, an objective which is also given effect to in s. 26, which provides that nothing in Part 4 shall derogate from rights enjoyed by the tenant which are more beneficial for the tenant than Part 4 rights.

The core issue in determining whether s. 58(3) had any application to the applicant on 13th March, 2006 is whether, as of that date, he held under a contract for “a fixed period”. In my view, as a matter of contract, he did not. Even though his tenancy was extended under clause 8 for twelve months from 1st October, 2005, by virtue of clause 7.1 the landlord was entitled to shorten that term after 1st November, 2005. The landlord exercised his entitlement. Therefore, the tenant did not have a tenancy for a fixed period beyond 24th April, 2006.

The applicant’s alternative argument, which counsel for the Board submitted was not made before the Tribunal, that a notice to terminate in reliance on ground 4 of s. 34 served on him on 13th March, 2006 required 112 days’ notice because his Part 4 tenancy would continue until 21st September, 2004 is also not correct. It is true that by virtue of the operation of s. 28(2) of the Act of 2004 a Part 4 tenancy continues in being for a period of four years from the commencement of the tenancy, but that is subject to s. 34 which allows for earlier determination on one or more of the six grounds stipulated in that section. In this case, the landlord invoked ground 4 and at the time he did so the tenancy was in being for less than two years.

The point made by the applicant was that the Board had manifestly erroneously misapplied and/or misconstrued and/or ignored s. 34.4(b)(ii) of the Act of 2004 which, it was contended, bars an “owner re-taking” notice of termination if the tenancy had otherwise been terminated. As I understand the submission, the applicant contended that the bar should apply in this case because of the attempted termination in 2005, in respect of which the dispute resolution process before the Board remained pending as of March, 2006, and the existence of the first notice of termination of 13th March, 2006 on the ground of rent arrears.

That submission is based on a wilful refusal of the applicant to accept the plain meaning of ground 4 of the Table in s. 34. That ground permits termination where the landlord requires the dwelling for his or her own occupation or for the occupation of a member of his or her family. With a view, obviously, to ensuring that the right is not abused, the notice of termination or an accompanying statement in writing must specify the matters set out in sub-paras. (a) and (b). Sub-paragraph (a) requires that the tenant who is being ousted from possession be told the identity of the intended occupant and his or her relationship to the landlord and the expected duration of that occupation. Sub-paragraph (b) requires the tenant to be put on notice of his right to be offered a tenancy of the dwelling, provided the statutory requirement in relation to the furnishing of contact details (i.e. details of the tenant’s whereabouts) is complied with, if two conditions are satisfied. The first condition is that a dwelling is vacated by the new occupant within six months. This condition obviously is designed to deter the landlord from misusing ground 4. The second condition is that the tenancy has not otherwise been validly terminated by virtue of the citation in the notice of termination of another ground specified in the Table to s. 34, being ground 1 (the tenant’s failure to comply with an obligation of the tenancy), ground 2 (the dwelling being no longer suitable), ground 3 (sale of the premises) or ground 6 (change of use). What sub-paragraph (b)(ii) of ground 4 does is that it puts an onus on a landlord invoking ground 4 to tell the tenant that an offer of a new tenancy, if the intended occupant vacates within six months, is conditional on the tenancy the subject of the notice of termination not having otherwise been validly terminated. Far from being a bar to a landlord who invokes ground 4 in s. 34 being precluded from invoking any other ground, in fact sub-para. (b)(ii) makes it clear that a landlord may invoke another ground, for example, ground 1, as well as ground 4. The reason for the omission of ground 5 (refurbishment of the dwelling) from sub-para. (b)(ii) is obvious: it embodies a requirement to offer the tenant a new tenancy.

The applicant’s contention is that the Board manifestly erroneously misapplied and/or misconstrued thebona fides requirement of s. 56(6)(b) of the Act of 2004 in relation to the two notices of termination of 13th March, 2006.

Section 56 of the Act of 2004, broadly speaking, gives a tenant who has been unjustly deprived of possession of a dwelling by reason of an abuse of s. 34 an entitlement to damages. Section 56(6)(b) provides as follows:

“For the avoidance of doubt -”

(a) …
(b) This section is without prejudice to the tenant’s right to put in issue, in a dispute in relation to the validity of the notice of termination referred to the Board under Part 6, the bona fides of the intention of the landlord to do or, as appropriate, commit to be done the thing or things mentioned in the notice.”

That provision merely clarifies that a tenant who suspects that a landlord is not actingbona fide in serving a notice of termination which invokes grounds 3, 4, 5 or 6 in s. 34 does not have to wait and see whether his suspicions are justified and pursue a complaint under s. 56 but can challenge the bona fides of the landlord in a dispute in relation to the validity of the notice of termination before the Board.

As is clear from the transcript of the proceedings before the Tribunal, the applicant did challenge the landlord’sbona fides in serving the second notice of termination of 13th March, 2006. In his submissions to the court the applicant contended that the “twinning” of the ground 4 notice of termination with the ground 1 notice of termination gave rise to a presumption of mala fides on the part of the landlord. That is not correct. As I have said previously, a landlord is entitled to invoke one or more of the grounds for termination provided for in the Table to s. 34. 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 evidence to support it. Counsel for the Board referred the court to the dictum of Finlay C.J. in O’Keefe v. An Bord Pleanála [1993] 1 I.R. 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, inMara (Inspector of Taxes) v. Hummingbird Limited [1982] 2 I.L.R.M. 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).

As the summary I have given earlier of the findings of the Tribunal in relation to the “C” dispute makes clear, this is not a case in which there was no evidence to support the finding that the landlord’s need and intention to occupy the Property for his personal use wasbona fide.

The applicant contended that the Board has manifestly erroneously misapplied and/or misconstrued s. 86(1)(b), submitting that no rental increase might be effected during the pendency of the 2005 disputes.

I have already dealt with that point earlier. There was no dispute in relation to the amount of rent payable in the 2005 disputes and s. 86(1)(b) did not apply.

The applicant contended that the Board has manifestly or erroneously misapplied and/or misconstrued s. 22(2), submitting that no rental increase may be effected without 28 days advance written notice to the tenant. I have already found that this contention is correct.

The only additional matters which it is necessary to advert to are the following:

(a) The suggestion in the applicant’s written submission of 27th July, 2007 that the rent increase provision in clause 8 of the tenancy agreement was in breach of the non-contracting out provision contained in s. 54 of the Act of 2004, in that the s. 22(2) requirement for 28 days notice would have been more beneficial to the applicant than clause 8, is not correct because, by virtue of the operation of s. 24, the increase provided for in clause 8 of the tenancy agreement was deemed to be a review, as I have already found, and s. 22 applied.

(b) Both counsel for the Board and counsel for the landlord submitted that the transcript discloses that the s. 22 notice point was not argued by the applicant at the hearing before the Tribunal. Be that as it may, one of the grounds advanced by the applicant in his reference dated 22nd March, 2006 was that the letter of 23rd February, 2006 violated explicitly s. 22. However, it would appear that the applicant’s first reference to s. 24 was in his written submission of 27th July, 2007.

The determination order dated 6th October, 2006 will be varied as follows:

(1) Paragraph 1 shall be deleted and there will be substituted therefor the following:

One valid notice of termination was served by the Respondent Landlord on the Applicant Tenant on 13th March, 2006 in respect of the tenancy of the dwelling 14 The Orchard, Crosshaven, County Cork, that is to say, the notice served because the landlord required the dwelling for his own occupation.

(2) Paragraph 3 shall be deleted.

Otherwise the determination order shall stand.

Mr. Justice William McKechnie
1
Prior to the enactment of the Residential Tenancies Act2004 (the “2004 Act”), there was considerable difficulty experienced by both landlord and tenant in having genuine issues of dispute determined speedily by the Circuit Court and significant expense incurred in the process. When ultimately determined there was equal difficulty in enforcing the resulting orders.

2
After a widespread consultative process, which involved the establishment of an expert group, the Oireachtas decided to enact the 2004 Act; which sets out a separate and self contained code for both dispute resolution and enforcement, in all matters touching upon the relationship of landlord and tenant. If the hoped for intention of the Oireachtas, in passing this legislation, was firstly to eliminate the old failings which existed in the Circuit Court process and secondly to ensure that disputes would be resolved quickly and remedies enforced expeditiously – this case is a testament to its failure – a lie to its suggested success.

3
This judicial review application arises out of the landlord and tenant relationship, created on the 22nd day of September 2004, between the applicant as tenant, and the notice party as landlord in respect of a dwelling house known as 14 Orchard, Crosshaven, Co. Cork. Being dissatisfied with the condition of such premises, Mr. Canty on the 12th April 2005 made an application seeking dispute resolution between him and Mr. Connolly. He alleged that the landlord was in breach of his obligations under the letting. In response the landlord made a similar application on the 29th April, claiming that, notwithstanding the service of a notice to quit dated the 18th March 2005, the tenant was over-holding. This application by the landlord was prompted by non-payment of rent.

4
On the 28th September 2005, a hearing took place before an Adjudicator under the provisions of the 2004 Act. His report issued on the 26th day of October 2005. Mr. Canty was unhappy with this decision and applied to have a Tribunal established to hear an appeal therefrom. This was set up on the 14th December 2005, and commenced its hearing on the 27th January 2006. On that occasion it issued a number of interim directions, inter alia, requiring the tenant to make certain payments to the landlord. On the 15th February 2006, the Private Residential Tenancies Board (“the Board” or “the P.R.T.B.”) made an Interim Determination Order referable to such directions. On the 22nd February, the Tribunal concluded its hearing, and made a final determination on the 13th April 2006. This determination was embodied in an order of the Board made on the 19th April 2006. On the day following, this order was served on both parties together with an accompanying letter indicating that the order was “the final determination” of the dispute between them.

5
As permitted by the legislation, the landlord on the 11th April 2006, instituted proceedings in Cork Circuit Court, seeking to enforce the Interim Determination Order of the 15th February: this was made under s. 124 of the 2004 Act. These proceedings came on for hearing on the 19th July 2006. The learned Circuit Court Judge directed Mr. Canty to comply with the Interim Determination Order of the 15th February 2006, and further provided that the tenant should lodge the sum of €3,250 and should also submit his P.P.S. number. Mr. Canty appealed that decision. He obtained from the High Court (de Valera J.) a stay on the enforcement of the Circuit Court Order on certain conditions. The substantive appeal hearing has been concluded and judgment has been reserved. This Court has no involvement with these proceedings and refers to them only to highlight how, even under the new legislation, it can be so difficult to get finality in a landlord and tenant dispute.

6
In any event, the final Determination Order made by the Board in this case on 19th April 2006 becomes binding on the parties within 21 days unless one, or other, or both, appeals that Order to the High Court. This is provided for by s. 123(2), (3), and (8) of the 2004 Act. There was no appeal by Mr. Canty (or the landlord) from either the Interim Order made on the 15th February 2006, or the final Determination Order made on the 19th April 2006. Prior to the date next mentioned, therefore, both had become binding on the tenant.

7
By letters dated the 23rd May 2006 and the 12th June 2006, the Board, established under s. 150 of the Act, sought clarification from the tenant as to whether he had complied with the terms of its final order. As a matter of fact he had not so complied with that order. Accordingly the P.T.R.B. caused to be issued three summonses against Mr. Canty under s. 1 of the Courts (No. 3) Act 1986. One such summons alleged that he failed to comply with the final Determination Order in that, within seven days from the date of its issue (the 20th April 2006), he had not paid to the landlord the sum of €8,400 being arrears of rent at a rate of €700 per month for the period of March 2005 to February 2006; the second alleged that he failed to comply with the order in that within the same period he had not furnished to the P.R.T.B. his P.P.S. number, and the third alleged that he failed to comply with the order in that he had not paid to the landlord rent at a rate of €700 per month from March 2006 to the date of giving up possession of the dwelling in question. These alleged failures were said to constitute offences under s. 126(1) and s. 9 of the Act of 2004. The date specified for the hearing of these summons, in Cork District Court, was the 16th October 2006.

8
Being of the view that there were several areas surrounding these summons in which “invalidity” arose, the applicant instituted the within judicial review proceedings and moved for leaveex parte. This Court however obliged him to put the P.R.T.B. as well as the landlord on notice of his application. He did and it is in respect of that application, heard in the presence of both the landlord and the Board that I now give judgment. In the original documentation Mr. Canty raised a number of points which grounded his application. In addition he has issued a motion seeking leave to add a further ground.

9
In no particular order of priority or importance I will deal with the submissions by taking the following issue as being the first one calling for the Court’s decision. Mr. Canty alleges that the Tribunal, when coming to its final decision on the 13th April 2006, did not act in accordance with s. 103 of the 2004 Act, in that, whilst the last page of the written decision has provision for the signatories of each member of the Tribunal, as a matter of fact, only the Chairperson (Ms. Hayden) signed it in this case. Furthermore, either as an additional point or as part of this first argument, it is claimed that on the face of the decision there is no delegated authority given by the other members, namely, Ms. Anne Colley and Mr. Con Murray, for the Chairperson to sign on their behalf. In support of this ground the tenant refers to p. 218 of the transcript of the hearing held on the 22nd February 2006 and seeks to rely on a passage(s) wherein the Chairperson uses the “first person” in an exchange between the Tribunal and himself. This according to his argument indicates that the Tribunal’s decision was not in majority.

It is alleged therefore that if these points are sustainable, the resulting final determination of the Board is tainted with infirmity and must be deemed illegal.

10
Section 103 of the 2004 reads:-

2
“103(1) The number of members of the Tribunal shall be 3.

(7) A decision of a majority of the members of the Tribunal suffices for any purpose.”

(2) …
(3) …
(4) …
(5) …
(6) …
11
The first point to note about s. 103(7) is that it is not a signature, or seal or authorisation provision. It provides that a majority will suffice for decision purposes. If the decision as a matter of fact had incorporated on its face all three signatures then no point could be taken. But it does not; it is signed only by the Chairperson, Ms. Hayden. With the benefit of hindsight it would have been more prudent to ensure that all members of the Tribunal had signed the decision. However, the absence of the signatures of Ms. Colley and Mr. Murray does not,per se, establish non-compliance with subs. (7). What is required is for this Court to be satisfied that the decision as published was a decision of the majority. Accordingly, in my opinion if there is credible evidence upon which that conclusion can be reached, that would suffice for compliance with subs. (7). To that end both Ms. Colley and Mr. Murray have indicated, by way of affidavit evidence, that the decision was in fact unanimous. That evidence has not been challenged. Accordingly, in my view s. 103(7) of the 2004 Act, has been complied with; in that it is clear beyond question that the decision was a decision of all three. It was in fact unanimous.

12
Mr. Canty’s reference to the transcript of the 22nd February 2006, cannot assist him with regard to this point. In my view, it would be inconceivable to interpret the short passage identified as indicating that the decision of the Tribunal was not a majority one. Not only would such a finding fly in the face of the sworn evidence referred to, but it should also be noted that subs. (7) refers to a “decision” of the Tribunal and not to an interchange between a member of it and any of the parties. Furthermore, I cannot see how any provision of the Interpretation Act 2005, can be of help to the applicant in this context. Therefore, in my view there is no sustainable basis to this point.

13
The second submission of the applicant is that since the tenancy in question was not registered until August 2005, the Board had no jurisdiction to deal with the landlord’s application, which was received on the 29th April 2005. He relies on s. 83 of the 2004 Act, together with r. 4 of the Dispute Resolution Rules in support of this point.

14
Section 83(2) and (3) read as follows:-

2
“83- (1) …

(2) Subject to subsection (3), the Board shall not deal with a dispute in relation to a tenancy referred to it under this Part by the landlord of the dwelling concerned if the tenancy is not registered under Part 7.

(3) The Board may, in the case of a default in payment of a particular fee or registration under Part 7 of a particular tenancy, notify the person or persons concerned of the default and afford the person or persons concerned a reasonable opportunity to rectify the matter; if the matter is rectified within a reasonable time the Board shall, subject to this Part, deal with the dispute or permit the other procedure to be followed in relation to it, as the case may be.”

15
Rule 4 of the Private Residential Tenancies Board Dispute Procedure Rules states:-

“4. The Board shall not accept a dispute referral from a landlord of a tenancy that is not registered with the Board.”

16
At the outset it can be immediately stated that these provisions have no application to any step taken by either a landlord or a tenant prior to referring a dispute under the Act. In particular, I can see no scope for interpreting such provisions as capturing the notice of termination, which was served by the landlord on the 18th March 2005. Therefore, I cannot agree with Mr. Canty’s interpretation of s. 83 in this regard. In my view the critical words of subs. (2) are:-

“… the Board shall not deal…”

17
What do these words mean? Could they mean that the application is voidab initio? Could they mean that the Board can take no step whatsoever in respect of such an application and in the process must return the papers etc.? Could they mean that the Board cannot exercise powers which undoubtedly are vested in it, as for example, requiring people to attend, permitting it to adjudicate or issuing directions? Whichever of these, or indeed other interpretations may be correct, it is evident to me that the subsection does not declare an application received prior to the registration of the tenancy to be a void one. In fact, very considerable assistance can be gained as to its true meaning by reference to s. 83(3) of the Act. Under this subsection, the Board is conferred with power to deal in a pragmatic way with an application which precedes the registration of the tenancy. This power does not jeopardise the Board’s duty to exercise what jurisdiction is conferred on it by the Act. The Board is authorised to notify the landlord in question, and to afford him an opportunity of rectifying the non-registration of the tenancy. If this defect is remedied “within a reasonable time”, then in accordance with the subsection “…the Board shall…deal with the dispute” in the usual way. This clearly indicates that the legislature did not intend to place a badge of invalidity on such an application so as to render it void ab initio. It was intended to put the application “on hold” until an opportunity was afforded to the landlord to rectify the matter; if so rectified the Board at all times thereafter has full jurisdiction to deal with the dispute submitted.

18
Could it be said, therefore, that the Board “dealt with” the application prior to the 5th August 2005. In my view, it could not. The Tribunal in this case was not established until December 2005, and it did not commence hearing until the 27th January 2006. No earlier event or circumstance has been identified which could possibly be relevant to this point. Without in any way so holding, I am prepared to accept that an argument could be advanced that on the establishment of a Tribunal, the Board could be said to be “dealing” with the application. That establishment did not take place until December 2005, well after the date upon which the tenancy was registered. Accordingly, I can see nothing in this case to indicate that the Board “dealt with” this application at any time prior to the registration of the tenancy under the 2004 Act. Moreover, I believe that the period afforded to the landlord in order to have the tenancy registered was a reasonable one, and in my opinion clearly comes within subs. (3) of section 83. Therefore, I do not believe that there is any validity in this argument.

19
Is this conclusion affected by the provisions of rule 4? There is no doubt but that as a matter of general law, subordinate legislation cannot affect primary legislation. The former cannot alter, change or vary any provision of the latter. On the interpretation of r. 4, as advanced by the applicant, the Board could not even retain an application pending registration. That could not have been the intention of the rule, but even if it was, it could not take precedence over the clear wording of s. 83(2). In the event of any conflict between the subsection and the rule, the former must prevail. This conclusion is not only well supported by general principles, but is also acknowledged by r. 1 of the Rules which states that such Rules are “subject to the provisions of the Act”. Therefore, in my opinion no relief can be granted on this ground.

20
The applicant in further argument on this issue refers to s. 88 of the 2004 Act (giving the Board power to extend time for the referral of disputes to it), and seems to suggest that the existing circumstances fall within its provisions. I regret to say that I know of no rule of construction which would permit me to extend s. 83 in the manner suggested. Whilst it may be arguable that s. 88 of the Act may apply to the provisions of s. 80, I can seen no justification for importing it into section 83. I, therefore, do not believe that this is of any assistance.

21
The next point raised by Mr. Canty, and on one view his most substantive one, relates to the steps taken to enforce the determination orders. I am not aware of any proceedings having been taken on the civil side in furtherance of the final Order. The enforcement of a “determination order” is provided for in s. 124(1) of the 2004 Act which reads:-

“If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first mentioned party may make an application under this section to the Circuit Court for an order under subsection (2)…”

There is nothing in the rest of s. 124 which qualifies the provisions of subs. (1). Therefore, it seems to me that the Board or landlord or tenant has competence to engage the Circuit Court in an attempt to enforce determination orders. As an aside, it has been suggested that since the Board did not take or become a party to any civil enforcement proceedings, the landlord is deprived of becoming a moving party in his own right. I cannot accept that this conclusion can be drawn from the statutory provisions in question.

22
The applicant’s true point in this context is that civil enforcement proceedings should be taken before embarking on the more radical steps of criminal enforcement proceedings as provided for in section 126 of the Act. That section reads:-

2
“126.-(1) A person who fails to comply with one or more terms of a determination order is guilty of an offence,

(2) Subsection (1) has effect notwithstanding the means provided under s. 124 for enforcement of a determination order.

(3) The person convicted of an offence under this section shall not be sentenced to any term of imprisonment in respect of that offence if he or she actually shows that the failure to comply with the term or terms concerned was due to his or her limited financial means.”

23
The provisions of subs. (3), which reflect Protocol 4 of the European Convention of Human Rights and which are consistent with and complimentary to a person’s human rights, are intended to apply to individuals who genuinely, and subject to verification, are not in a position to discharge monies due. These safeguards have no application to a person who is financially capable of satisfying a debt, but for whatever reason refuses to so do. It is not suggested by Mr. Canty that he falls within the category of person as captured: therefore these provisions do not apply to him.

24
The more general point made by the applicant, which he says is based on the principle of escalating remedies, is that one must have recourse to civil enforcement procedures (under s. 124 of the Act), before invoking the provisions of s. 126 of the Act.

25
The first point to be noted in this regard is that s. 124 does not refer to s. 126. There is a reference in s. 126 to s. 124, but notvice versa. The second point is that the Oireachtas itself has specifically answered this very submission of the applicant Subsection (2) of s. 126 allows recourse to criminal proceedings “notwithstanding the means provided under s. 124 for enforcement of a determination order”. This can only be read as meaning that the taking of proceedings by way of civil remedy is not a pre-condition to the issue of summonses. Section 124 in my view does not have to be initiated let alone exhausted before a prosecution can be taken. If that had been the intention of the Oireachtas it would have clearly so provided. Instead it has provided the opposite in s. 126(2) of the Act.

26
In my opinion the Oireachtas by design and with deliberation permits the taking of both types of enforcement proceedings. It does so as a means of demonstrating a determined effort on its part to ensure that the difficulties previously faced with regard to enforcement would no longer be a problem. Both parties, by accessible measures, could be speedily compelled to comply with their obligations. Subject to the saver contained in s. 126(3) of the Act, the legislature by conferring the criminal option, was trying to ensure that civil orders for financial debts which may remain unsatisfied for lengthy periods, were not the only avenue which a person could pursue. This arrangement in my opinion is a means of maintaining the integrity of the Act. It is, therefore, important to recognise that either landlord or tenant can invoke both types of sanction. There is nothing in the general law or in the statutory provisions referred to, which allows me, let alone compels me, to read s. 126 as the applicant contends.

27
Reference has also been made to r. 21 of the Dispute Procedure Rules which reads:-

“21. If there is non-compliance with a determination order of the Board and a party brings that fact to the attention of the Board and requests the Board to pursue the enforcement of its determination order, the Board must, within seven days of satisfying itself that the alleged non-compliance has occurred, apply to the Circuit Court for an order under s. 124(2) of the Act.”

This rule, as it clearly states, is concerned with s. 124 of the Act and has no impact or effect on the alternative and/or complimentary remedy contained in s. 126. The applicant’s reliance therefore on this rule is misguided.

28
There are a number of subsidiary points with regards to theinter partes leave application that I should mention. Mr. Canty applied to amend his original grounds of challenge by alleging that the final Determination Order is contrary to s. 121(6) and s. 123 of the 2004 Act. These judicial review proceedings have been in existence for some time and were moved ex parte at the outset. The court, when hearing that application, took the view that both the Board and the landlord should be notified. A fairly substantial leave application was then made. There was no mention of this latest point of challenge. The fact that the applicant is a lay litigant is not in my view of any relevance; he is most able and extremely competent at self-representation. He is evidently entirely familiar with the facts of the case, and has raised and argued many legal points. If I was to allow his amendment now, it would be placing a fresh obligation on the notice party and the Board, whose jurisdiction was invoked almost two years ago. In my opinion it is far too late for Mr. Canty to make this application. At all times he had available to him the full documentation and he ought to have identified this matter at a much earlier stage if he wished to rely upon it. From the landlord’s point of view it would be a considerable injustice if I acceded to the application. I therefore refuse to enlarge time or permit the applicant to amend his grounds in the manner suggested.

29
In conclusion, I do not believe that the applicant has established any grounds upon which he is entitled to relief. I have come to this view fully realising the nature of the application and the limited threshold which applies: see e.g. G v. D.P.P. [1994] 1 IR 374.

30
Finally, counsel on behalf of both the respondent and the notice party have applied for their costs. In response the applicant contends that if the result had been different, he would not have received any costs. In my view the logic of what Mr. Canty says, is that it was unreasonable for the Board and the landlord to be professionally represented. If the applicant had succeeded on his judicial review application, he would have been given such costs and expenses as the Taxing Master would have allowed. Indeed, if he was professionally represented and had been successful, he would have obtained the usual order as to costs,vis-à-vis his professional advisors. In my opinion there is no doubt but that the landlord was entitled to be represented and given the fact that some important issues were involved, so also was the Board. There is no merit or logic in depriving the respondent or the notice party of their costs. These costs will be taxed in default of agreement and will include reserve costs. A stay will be put on this order in the event of an appeal being taken within 28 days from today’s date. If such an appeal is lodged, the stay will continue until the determination of these proceedings.

The evidence
9
The plaintiff avers that she first discovered that the defendant had taken possession of the apartment at issue when she returned from work in the early hours of Sunday, the 15 th September 2013, although she does not provide any details whatsoever of her employment, income or means – an omission to which the Court will return below.

10
The plaintiff alleges that the defendant well knew that she was residing in the property when he took possession of it. The defendant acknowledges that a firm of private investigators retained by him had been watching the premises and accepts that the plaintiff was observed entering and leaving the apartment. However, the defendant contends that, in the circumstances more fully set out below, the identification of any person claiming lawful occupancy of the apartment (as opposed to the identification of persons entering and leaving it) had been made difficult, if not impossible.

11
The plaintiff avers that, having been excluded from the apartment, she contacted the gardaí, who informed her that any dispute concerning the lawful occupation of the apartment was a civil matter. In the next sentence of the same paragraph of her affidavit, the plaintiff further avers that:

“…on the 17 th of September 2013 I noticed that a window to my apartment was open and I re-entered my apartment. I say that it appears that the gardaí were called who arrested me, detained me in the garda station and then released me.”

12
The plaintiff provides no further evidence concerning the manner in which she re-entered the apartment or the circumstances of her arrest by a member or members of An Garda Síochána. The plaintiff’s affidavit is thus set up to imply that she has been unjustifiably subjected to inequitable treatment by An Garda Síochana vis à vis the defendant, presumably in order to support the contention that the intervention of the Court on the plaintiff s behalf on an interim ex parte basis is clearly warranted in this case.

13
However, the unchallenged evidence adduced on affidavit by the defendant tells a very different story. While the defendant himself avers that the plaintiff did indeed re-enter the apartment (although on the 16 th, rather than the 17 th, September 2013), the uncontradicted averment of Mr. Kevin McGarry, a director of Ktech Security Limited, is that the said re-entry was effected by scaling the exterior of the building, climbing over the third-story balcony rail of the apartment and smashing a balcony window. Mr. McGarry’s uncontradicted evidence is that, when he subsequently sought to enter the apartment through the front door, accompanied by members of An Garda Síochána, he discovered that an attempt had been made to barricade that door from the inside with large cabinets. On pushing those cabinets aside, the plaintiff was found inside the apartment holding a “machete-knife.” The plaintiff was directed by a member of An Garda Síochána to put down the “machete-knife” and was only arrested when she failed or refused to do so.

14
When questioned concerning the omission of these facts from the plaintiff s affidavit grounding her application for both interim ex parte and interlocutory relief, Counsel for the plaintiff submitted that whether the plaintiff broke a window to re-enter the apartment is neither here nor there and that nothing turns on her possession of a “machete-knife” or, indeed, her refusal to relinquish it when called upon to do so by a member of An Garda Síochána.

15
The second of the two exhibits to the plaintiff’s short affidavit is a copy of a letter dated the 14 th September 2013, written by the defendant and addressed to one Michael Cremin at the apartment at issue. In exhibiting that letter, the plaintiff avers that Michael Cremin occupied the premises with her but does not explain the nature or duration of that arrangement nor how she came into possession of Mr. Cremin’s post. In the said letter, the defendant informs Mr. Cremin of his appointment as receiver and asserts that no lease is in place with him or, indeed, with any other person conferring a right of residence in the property. The defendant goes on to assert in that letter that no rent has been paid in respect of the apartment since July 2008 and that, in consequence, insofar as Mr. Cremin had purported to recently occupy the property in the absence of any lease or payment of rent, he can only have done so as a trespasser. Peculiarly, the plaintiff asserts that this letter describes her as a trespasser, although it is plain on its face that it is not addressed to her and does not refer to her at all.

16
The plaintiff avers that she is currently homeless. It emerged at the interlocutory hearing that she is residing with friends. The plaintiff discloses nothing about her financial means or, in consequence, her ability to acquire alternative permanent accommodation. In the course of the interlocutory hearing it became clear that the evidence goes no further than that the plaintiff is currently deprived of the use of the specific apartment at issue as her home or dwelling. The plaintiff has not established that she lacks the ability or the means to obtain permanent accommodation elsewhere.

17
The plaintiff avers that she is destitute but, once again, it emerged at the hearing of the present motion that this averment was intended only to refer to the difficulties the plaintiff claims to face in consequence, as the plaintiff puts it, of being “locked out of my apartment with all of my worldly possessions inside.”

18
On that point, the defendant has since exhibited copies both of e-mails exchanged directly between the parties and of correspondence exchanged between their solicitors. On the 19 th September 2013, at 11 minutes to midnight, the plaintiff e-mailed the defendant to explain that important possessions belonging to her remained in the apartment, including her Hungarian passport and identification, her driving licence, her bank cards, her car keys and her clothes etc. The following day, the defendant replied to the plaintiff’s e-mail through one of his colleagues, advising her that arrangements could be made to gather all of her belongings for collection at a time convenient for her, if she would provide a list of those items, but emphasising that she would not be permitted to enter the apartment in any circumstances.

19
Shortly afterwards, the plaintiff e-mailed the defendant again, stating, in substance, that she did not want anyone else to touch her private possessions (because of the possibility of theft) and that she could not compile a list of her possessions (because of the difficulty involved in remembering all of them). The plaintiff added that she was seeking the assistance of a Hungarian consular official.

20
In the meantime, the plaintiff’s solicitors had written to the defendant’s solicitors on the 19 th September 2013, enclosing a copy of the plenary summons in this case, together with a copy of the motion papers in the present application. In that letter, the plaintiff’s solicitors wrote that the plaintiff requires access to various small personal effects from her apartment as a matter of urgency, instancing her passport, i.d. and credit cards. The letter requests the defendant to arrange to permit the plaintiff to attend at the apartment to remove those items as soon as possible. The defendant’s solicitors replied by letter dated the following day, with which they enclosed a copy of their exchange of e-mails with the plaintiff and in which they apprised the plaintiff’s solicitors of the incident involving the machete-knife. That letter asserts that the defendant is “more than willing” to return the plaintiff’s belongings to her but is not willing to permit her to re-enter the apartment. The letter proposes that, if the plaintiff wishes a representative of the Hungarian Embassy to attend at the apartment to collect the plaintiff s possessions, the defendant is happy to facilitate that.

21
On the basis of that unchallenged evidence, the Court cannot, and does not, accept that the plaintiff is rendered destitute by being deprived of her personal possessions by the defendant.

22
In his affidavit sworn on the 25 th September 2013, the defendant avers that the apartment complex in which the apartment at issue is located was developed a little over ten years ago by a company named Rittlestone Limited (“Rittlestone”), the beneficial owners of which were Jackie Whelan and Anthony Gannon. Messrs Whelan and Gannon subsequently acquired a number of apartments in the complex in their own right, including the apartment at issue, with funding provided by Dunbar Assets Ireland (“Dunbar”), which was formerly known as Zurich Bank. The title to the apartment comprises a 645-year lease, commencing on the 1 st January 2005, although dated the 30 th May 2008.

23
The defendant avers that Dunbar appointed a receiver to the apartment on the 8 th December 2011, pursuant to the terms of the relevant mortgage deed, after the loans it had made to Messrs Whelan and Gannon fell into arrears. That receiver was discharged on the 22 nd July 2013 and the defendant was appointed receiver in his place over, inter alia, the apartment at issue.

24
In support of the foregoing averments, the defendant has exhibited the Certificate of Incorporation of Rittlestone; a company report on Rittlestone; a copy of the lease of the apartment between Rittlestone and Messrs Whelan and Gannon; the mortgage between Messrs Whelan and Gannon, as mortgagors, and Dunbar, formerly Zurich Bank, as mortgagee; the deed of appointment of the former receiver; the deed of discharge of that receiver; and the deed of appointment of the defendant as receiver over the apartment at issue.

25
The defendant avers to his belief that, in or around the month of June 2007, an agent on behalf of Messrs Whelan and Gannon entered into a lease agreement in respect of the apartment for a term of one year to commence on the 29 th June 2007, whereby the tenant appears as “M. Cremin”, followed by the words “Transworld Consortium Ltd”. The single page document, which stipulates a rent of €1,300 “per Calendar Month Without deduction”, is signed by one “M. T. Cremin for and on behalf of Transworld Consortium Limited”.

26
The defendant avers that, while rent was paid in respect of that agreement until July 2008, no further payments were made at all. In October 2010, solicitors for the estate of Mr. Whelan (who died on the 21 st November 2008) and Mr. Gannon wrote to Michael Cremin, providing notice of termination of the lease, on the ground that arrears of rent of €32,500, representing 25. months rent of €1,300 per month, had been sought in August 2010 but no payment had been received. The said notice, which was given under s. 4 of the Residential Tenancies Act 2004, expired on the 1 st November 2010.

27
A High Court Summary Summons issued on the 5 th April 2011 on behalf of Messrs Whelan and Gannon, naming “Michael (orse. Troy) Cremin” as one of the defendants, and seeking possession of the apartment, together with arrears of rent. Those proceedings bear the record number 1414S of 2011. In the course of those proceedings, Michael Cremin swore an affidavit on the 6 th July 2011, in which he averred “I signed the lease agreement not in a personal capacity but “for and on behalf” of my company, Transworld Consortium Limited.” Mr. Cremin went on to aver, in substance, that the said lease was terminated by the landlords’ agent in or about September/October 2007, after which he dealt exclusively with Mr. Whelan, who – as already noted above – is since deceased. Mr. Cremin avers that between June and September 2008, he agreed to purchase the apartment from Mr. Whelan for €335,000 “on behalf of my company, Transworld Consortium Limited” on the basis that a down payment totalling €75,000 was to be made by September 2008, which Mr. Cremin claims was duly done. Mr. Cremin concluded his affidavit in those proceedings by asserting a bona fide defence to the plaintiffs’ claim for arrears of rent by reference to the alleged termination of the relevant lease in or about September/October 2007 and his claim to recover the €75,000 that he purports to have paid to Mr. Whelan as a down-payment on the purchase of the apartment. It is, perhaps, noteworthy that Mr. Cremin makes no claim to any interest or title in the property beyond the assertion of a lien in respect of the sum of €75,000 that he claims to have paid on behalf of Transworld Consortium Limited to Mr. Whelan. By reference to Mr. Cremin’s evidence in those proceedings, it is difficult to see how the lien contended for (if found to exist) could be exercisable by any person or entity other than Transworld Consortium Limited. It should also be noted – although the Court cannot and does not express any view on this point – that Mr. Cremin’s assertions in relation to an alleged agreement to purchase the property and the payment of a deposit in that regard were roundly and trenchantly denied by the executor of Mr. Whelan’s estate and by Mr. Gannon in an affidavit sworn in those proceedings by the former on behalf of both of those plaintiffs, which denial extends to an allegation that those assertions “are wholly fabricated.”

28
Returning to the present proceedings, the defendant exhibits a letter dated the 8 th October 2012 from the Dublin-based firm of solicitors now representing the plaintiff. It is addressed to the management company of the apartment complex in which the apartment at issue is situated. It is written on behalf of Michael Cremin, as the purported owner of the apartment at issue, and questions the validity of an Extraordinary General Meeting of that company that was evidently proposed at that time.

29
The defendant also exhibits a letter dated the 22 nd November 2012 from a Cork-based firm of solicitors to a property management company. That letter is written on behalf of the plaintiff and asks the management company to retain any cctv footage in its possession concerning an attempt by a number of men to unlawfully gain entry to the apartment at issue on that date. The defendant further exhibits a letter in reply, dated the 10 th December 2010, from the former receiver’s solicitors (now the defendant’s solicitors), the relevant correspondence having been passed to them by the property management company concerned. In that letter, the former receiver asserts his appointment as such by a deed of appointment dated the 8 th December 2011 and points out that there is no lease in place between the receiver or his predecessor in title and the plaintiff or any other person and that no rent is being paid in return for the occupation of the property by the plaintiff or any other person. The former receiver confirms that, through his agents, he had attempted to effect what he asserts was a lawful re-entry to the apartment but that his agents, having been surprised by the presence of a person claiming to be in occupation of the premises, had immediately withdrawn.

30
The said letter goes on to inform the plaintiff through her then solicitors of the former receiver’s position that any claim she might have to lawfully occupy the property is entirely wrong in fact and law. The plaintiff s then solicitors were requested to inform their client of her position as trespasser and to advise her that her best course was to immediately deliver up possession of the apartment to the receiver. The letter concludes by confirming that the receiver would co-operate with the plaintiff in arranging for her to vacate the apartment in an orderly and peaceable manner.

31
The defendant avers that no response was ever received to that correspondence and his evidence in that regard stands unchallenged for the purpose of the present application. It is striking that the plaintiff did not disclose to the Court the exchange of correspondence just described in making her application for interim ex parte relief.

32
The same Cork based firm of solicitors (who had acted for the plaintiff in 2012 as just described) wrote again on the 16 th September 2013 but now acting on behalf of Mr. Troy Cremin. The said letter is exhibited to the defendant’s affidavit. In that letter, those solicitors claim that Mr. Cremin is entitled to assert an equitable lien over the apartment in respect of the €75,000 that he claims to have given to Mr. Whelan (since deceased) in 2008 as a down-payment on the purchase of the apartment or that he is entitled to obtain “like value by use and occupation of the premises”. This, then, seems to represent Mr. Cremin’s claim of right to the use and occupation of the apartment from which any claim by the plaintiff to lawful occupation of the apartment (as Mr. Cremin’s tenant) must by necessary implication derive.

33
A particularly striking feature of the present application is the plaintiff’s failure to disclose the nature and extent of her involvement or interaction with Mr. Cremin. Mr. Cremin is the central actor in all of the alleged events that give rise to the plaintiff’s claim to a right of occupation in the apartment as Mr. Cremin’s tenant. The plaintiff avers only that Mr. Cremin has been her landlord in respect of the apartment at issue since the 24 th September 2008 and that he “occupied” the apartment with her. The plaintiff’s solicitors for the purpose of these proceedings (and of the present application) engaged in correspondence concerning the apartment at issue on Mr. Cremin’s behalf in 2012, and the Cork based solicitors who had previously engaged in correspondence concerning the apartment on the plaintiff’s behalf in November 2012, have, as recently as the 16 th September 2013, been engaged in correspondence with the defendant on behalf of Mr. Cremin.

34
It is surprising that the plaintiff does not seek a remedy against Mr. Cremin, who she asserts is her landlord, in light of the landlord’s statutory obligation under section 12(l)(a) of the Residential Tenancies Act 2003 to allow her, as tenant of the apartment at issue, to enjoy peaceful and exclusive occupation of it, or in light of the landlord’s covenant, implied by s. 41 of Deasy’s Act, viz that “the tenant shall have quiet and peaceable enjoyment of the said lands or tenements without the interruption of the landlord or any other person whomsoever during the term contracted for, so long as the tenant shall pay the rent and perform the agreements contained in the lease to be observed on the part of the tenant.”

35
Of course, the foregoing observation is only relevant to the Court’s consideration of whether the plaintiff has complied with her obligation of candour in seeking interim ex parte relief, since it is plainly the plaintiff s perfect entitlement to pursue whatever remedy (or remedies) she chooses against whichever defendant (or defendants) she selects, and it is otherwise no concern of the Court that there may be another equally, if not more, obvious defendant against whom the plaintiff might bring an action.

The applicable law
36
In Bambrick v. Cobley [2006] 1 I.L.R.M. 81, the law on the obligation of candour when seeking interim ex parte relief was carefully considered in the High Court. At page 86 of the report, Clarke J. noted that, in Tate Access Floors Inc. v. Boswell [1991] Ch. 512, Sir Nicholas Brown-Wilkinson identified full and frank disclosure as being “the golden rule” when he said:

“No rule is better established, and few more important, than the rule (the golden rule) that a plaintiff applying for ex parte relief must disclose to the court all matters relevant to the exercise of the court’s discretion whether or not to grant relief before giving the defendant an opportunity to be heard. If that duty is not observed by the plaintiff, the court will discharge the ex parte order and may, to mark its displeasure, refuse the plaintiff further inter partes relief even though the circumstances would otherwise justify the grant of such relief.”

37
On the question of what matters are relevant to the exercise of the court’s discretion, Clarke J. took into consideration the fact that, as Lord O’Hagan L.C. put it in Atkin v. Moran (1871) I.R. 6 Eq. 79 (at 81):

“The party applying is not to make himself the judge of whether a particular fact is material or not. If it is such as might in any way affect the mind of the court it is his duty to bring it forward”.

38
Clarke J. concluded that the test by reference to which materiality should be judged is whether objectively speaking the facts could reasonably be regarded as material with materiality to be construed in a reasonable and not excessive manner. The approach adopted by Clarke J. in that regard has been widely followed, most recently by Cross J. in Criminal Assets Bureau v. B.G.S. Ltd. & Ors [2013] IEHC 302.

39
In Balogun v. Minister for Justice, unreported, High Court, Smyth J., March 19, 2002, the court expressly deprecated:

“an ex parte application which had I been given the facts now on affidavit I would have viewed in a different manner. Either selective facts were made known to the legal advisors, or there was a complete failure before counsel was instructed to critically analyse instructions so that the duty and obligation to observe good faith with the Court on an ex parte basis could be observed”.

40
The Court acknowledges – as did Peart J. in European Paint Importers Ltd v.O’Callaghan, unreported, High Court, August 10, 2005 – that “[t]here will inevitably in applications for interim relief be some haste in the preparation of affidavits and exhibits”, such that what must be considered in deciding on whether to discharge an interim order or to grant or withhold interlocutory relief is whether the process has “been abused to the extent of obtaining an order under false pretence.” Of course, the plaintiff here did not obtain an interim order. However, she did apply for one and it is, therefore, necessary to consider whether that application amounted to an abuse of process by seeking such order under false pretences.

41
In this case, at both the interim ex parte and interlocutory stage, the plaintiff failed to disclose the following:

a) That the plaintiff’s arrest and detention occurred, not on the basis that An Garda Síochána had unfairly and unreasonably intervened in a civil dispute on behalf of the defendant having declined to do so earlier on behalf of the plaintiff, as the plaintiff plainly and unequivocally sought to imply in the affidavit sworn to ground her application for ex parte relief, but on the basis that the plaintiff was found to be in possession of an offensive weapon, which she refused to relinquish when called upon to do so by a member of An Garda Síochána.

b) That the plaintiff had re-entered the apartment at issue by scaling an external wall and breaking a third-story balcony window and not by entering through an open window as she had originally claimed.

c) That the plaintiff had engaged a firm of solicitors in Cork in 2012 in relation to her claim of lawful occupancy of the apartment at issue, which solicitors had received a reply from the former receiver’s solicitors rejecting that claim, to which correspondence no reply on behalf of the plaintiff was ever forthcoming.

d) Any information concerning her underlying income or means, while claiming – though only in the limited or very narrow sense described above – to be homeless and destitute.

42
The Court is satisfied that each of those facts was material to the application of the wide equitable and general principles that a court is required to consider in deciding whether to grant or withhold relief before permitting a defendant to be heard, and that there was, accordingly, a duty to bring those facts forward. The Court does not accept that the failure to bring those facts forward can be considered as an accidental oversight due to the haste with which the application was brought.

43
As Clarke J. noted in Bambrick v. Cobley, supra, the consequences of non-disclosure are not automatic in the context of the discretion to grant or withhold interlocutory relief. This Court accepts the view expressed by Clarke J. that the court does have a discretion, in cases where failure to disclose has been established, to refuse to grant an interlocutory injunction sought, as well as to discharge any interim injunction that may have already been granted, but that it is not obliged to do so.

44
While the Court must have regard to all of the circumstances of the case, I accept Clarke J.’s summary of the factors most likely to weigh heavily in that consideration:

1
) The materiality of the facts not disclosed.

2
) The extent to which it may be said that the plaintiff is culpable in respect of a failure to disclose, bearing in mind that a deliberate misleading of the court is likely to weigh more heavily in favour of the discretion being exercised against the grant or continuance of an injunction than an innocent omission.

3
) The overall circumstances of the case which lead to the application in the first place.

45
I am forced to the conclusion that the plaintiff deliberately misled the Court concerning the circumstances of her re-entry into the apartment and, more particularly, the circumstances of her subsequent arrest by An Garda Síochána. In that regard, the plaintiff deliberately sought to contrast her arrest at the apartment with the earlier refusal of An Garda Síochána to intervene in her dispute with the receiver concerning her exclusion from it. In doing so, the plaintiff chose to deliberately withhold from the court the reason for her arrest. The court cannot accept the proposition that the plaintiff was entitled to view the fact of her arrest at the apartment as sufficiently material to specifically depose to it in her short grounding affidavit, while now asserting through Counsel that the reason for that arrest is immaterial in the context of her obligation to make full and frank disclosure.

46
As regards the plaintiff’s failure to disclose the earlier correspondence between the plaintiff’s former solicitors and the those of the former receiver, and the plaintiff’s failure to disclose any meaningful information whatsoever concerning her means and income in asserting that she is destitute, while the Court accepts that the evidence does not go so far as to establish an attempt to deliberately mislead the Court, there has nevertheless been a significant culpable failure to disclose those matters.

47
In all of the circumstances, the Court will exercise its discretion against granting an interlocutory order.

48
In case I am mistaken in that view, I propose to address the issue of whether the plaintiff is otherwise entitled to the interlocutory relief that she seeks. This, of course, requires a consideration of the principles laid down in the leading case of Campus Oil Ltd v. Minister for Industry and Energy (No. 2) [1983] I.R. 88. In considering those principles, it is appropriate to bear in mind that the primary relief sought in the present application is a mandatory injunction, requiring the defendant to deliver up possession of the apartment at issue to the plaintiff.

49
I accept that the plaintiff has raised a fair bona fide question in these proceedings. The plaintiff asserts that she was in occupation of the apartment at issue as her home or dwelling at the time she was excluded from it by the action of the defendant in changing the locks while she was at work. The plaintiff is therefore, prima facie, entitled to claim damages for trespass and for breach of her constitutional right to the inviolability of her dwelling. The defendant’s claims to good title over the property, to a true right of possession of it and to a lawful authority to enter it are, if made out, each potentially capable of amounting to a good defence to that action, but – in the words of O’Higgins C.J. in Campus Oil – it is not for the Court on an interlocutory application to determine that question.

50
I am not satisfied that the plaintiff has raised a fair bona fide question in these proceedings concerning her entitlement to a declaration that any charge the defendant is appointed pursuant to is subject to the plaintiff s tenancy. The plaintiff has adduced no evidence whatsoever for the purposes of this application concerning her landlord’s title to the property, from which title her right of occupation as tenant pursuant to the alleged lease of the 24 th September 2008 must necessarily derive. Nor has she adduced any evidence that her tenancy (as opposed to her occupation) of the apartment at issue was ever drawn to the attention of the defendant prior to her exclusion from it. In attempting to rely instead on matters averred to in the context of entirely separate proceedings involving the mortgagors of the apartment and Mr. Cremin, which proceedings were produced by the defendant for the assistance of the court, the plaintiff ignores Mr. Cremin’s sworn averments in those proceedings that he was acting at all material times on behalf of a Northern Ireland registered company, Transworld Consortium Limited, and not on his own behalf. Mr. Cremin is not a party to the present proceedings and the plaintiff adduced no evidence from him for the purpose of the present application.

51
In Westman Holdings Ltd v. McCormack [1992] 1 I.R. 151, Finlay C.J. pointed out that, having reached the conclusion that the plaintiff has raised a fair issue to be tried, “the Court should not express any view on the strength of the contending submissions leading to the raising of such a fair and bona fide question.” Accordingly, I do not propose to do so. Insofar as I have concluded that the plaintiff has failed to establish a fair bona fide question to be tried in respect of her application for a declaration that the defendant’s charge, if valid, is subject to the plaintiff’s tenancy, I have done so by reference to the very limited evidence presented for the purpose of the present application. The Court accepts, as Clarke J. did in Collen Construction Limited v. Building and Allied Trades Union & Ors [2006] IEHC 159, that at the trial of the action the plaintiff may be in a position to put before the court further evidence which would satisfy a court, by inference if necessary, that the facts required to warrant the making of the declaration sought have been established.

52
Turning to the question of the adequacy of damages, I find there is no evidence before the court that would allow it to conclude on the balance of the probabilities that the plaintiff could not be compensated by an award of damages for the trespass and breach of her constitutional rights that she alleges. While the Court notes the dictum of Laffoy J. in Pasture Properties v. Evans, ex tempore, High Court, February 5, 1999 (cited in Kirwan, Injunctions: Law and Practice (Dublin, 2008) at p. 190) that “it is axiomatic in trespass cases that damages are not an adequate remedy”, I would not go quite so far, preferring the view that the court should look at the facts of each case. This was the approach adopted by Finlay Geoghegan J. in Contech v. Walsh, unreported, High Court, February 17, 2006, in respect of an application for an interlocutory injunction in a passing off action, notwithstanding the earlier dictum of Costello J. in Mitchelstown Co-Operative Agricultural Society Ltd v. Golden Vale Products Ltd., unreported, High Court, December 12, 1985, that “it is axiomatic in most passing-off actions damages are an inadequate remedy for a successful plaintiff” (at p. 7).

53
On the particular facts of the present case, the Court is not satisfied that damages would not be an adequate remedy for the alleged trespass and breach of constitutional rights that the plaintiff complains of. I am strengthened in that conclusion by the decision of the High Court in Fitzpatrick v. Commissioner of An Garda Síochana [1996] E.L.R. 244, in which the court addressed, inter alia, the argument that a plaintiff seeking an interlocutory injunction could not be adequately compensated in damages for the damage to his reputation, character and good name that he alleged would occur if the defendant was not prohibited by injunction from repatriating him from U.N. policing duties abroad. Kelly J. stated (at page 254 of the report):

“Insofar as [the plaintiff’s] constitutional entitlement to his good name and reputation is concerned, I see no reason why they cannot be compensated for by an award of damages. Damage to reputation as a result of libel or slander is regularly compensated in these courts by an award of damages. Furthermore, since the decision of the Supreme Court in Meskell v. Córas Iompair Éireann [1973] IR 121, damages have on many occasions been awarded in constitutional litigation.”

54
Turning next to the other side of the equation, I must consider whether the plaintiff’s undertaking as to damages will adequately compensate the defendant, should he be successful at the trial, in respect of any loss suffered by him due to the injunctions now sought being in force pending the trial. It is common case that the plaintiff has paid no rent to the defendant and there is no suggestion on the evidence that, if granted the injunction she seeks, she proposes to do so pending the determination of her action. Accordingly, in the event that the plaintiff’s action fails, the defendant will clearly have to rely on the plaintiff’s undertaking in order to recover damages from her in respect of both lost rent and any diminution in the value of the property that may occur during that period.

55
What is the value of that undertaking? As already noted above, the plaintiff has provided no detail whatsoever concerning her underlying means or income that would allow the court to assess whether that undertaking is realistic when balanced against the prospective losses of the defendant. Accordingly, this court takes the same view as the High Court did in Martin v. Bord Pleanála [2002] 2 I.R. 655; that an undertaking offered in the context of so little – indeed, no – evidence of means must be viewed “as little more than a pro forma compliance with the usual requirement of the court in this kind of application” (per O’Sullivan J. at p. 670 of the report). In consequence, the Court has reached the same conclusion as the one reached by O’Sullivan J. in that case, which is to say that the relief sought should be refused on that ground alone.

56
Finally, it is necessary to consider the balance of convenience. In this context, as Lord Diplock stated in American Cyanamid Co v. Ethicon Ltd [1975] A.C. 396 (at p. 406):

“the plaintiff’s need for [such] protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights, for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty was resolved in the defendant’s favour at trial. The court must weigh one need against the other and determine where the “balance of convenience” lies.”

57
By reference to all of the factors already identified above and, in addition, the well-established principle that, if all other matters are equally balanced, the court should preserve the status quo (while noting that, for the reasons already set out above, the balance of those matters in this case tilts in favour of the defendant), the Court concludes that the balance of convenience requires the refusal of the interlocutory relief sought.

Conclusion
58
The injunctions sought are refused.

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Private Residential Tenancies Board v Judge Linnane

Neutral Citation: [2010] IEHC 476
Reported In: [2010] 4 JIC 2305
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice Declan Budd
Categories Long Leases and the R.T.A. 2004
Counsel for the applicant submitted that s. 3(2) excludes certain dwellings from the remit of the R.T.A. 2004 and that the list in s. 3(2) is exhaustive and cannot be supplemented except by legislation, unless by inference from the entirety of the enactment. It is accepted by the second named notice party that this is correct. The nine categories of excluded dwelling are specified with considerable precision. Neither the applicant P.R.T.B. or the Management Company submitted that the dwelling in this case belongs to any of the categories listed. Counsel for the second named notice party submits that the only way in which the dwelling in this case can be removed from the remit and ambit of the R.T.A. 2004 is by an explicit insertion of a formula of words in the s. 3(2) of the Act given that the list cannot be supplemented.

Counsel for Mr. Mallon then submitted that to insert into or to imply a further exception into s. 3(2) amounted to legislation. Furthermore any exception must be specified with a degree of precision similar to the nine existing exceptions. He submits that it cannot be for the courts to hold in case after case whether or not a dwelling can be the subject of an implied exception until the point is reached when it can be said with any certainty that a dwelling is or is not within the remit of the R.T.A. 2004. He emphasises that the quotation of Finlay C.J. from McGrath v. McDermott [1988] I.R. 258 at p. 276 above:-

“The courts have not got a function to add to or delete from express statutory provisions so as to achieve objectives which to the court appear desirable. In rare and limited circumstances words or phrases may be implied into statutory provisions solely for the purpose of making them effective to achieve their expressly avowed objective. What it is urged upon the Court by the Revenue in this case is no more and no less than the implication into the provisions of either s. 12 or s. 33 of the 1975 Act of a new sub-clause or subsection providing that a condition precedent to the computing of an allowable loss pursuant to the provisions of s. 33, subs. 5 is the proof by the taxpayer of an actual loss, presumably at least as extensive with the artificial loss to be computed in accordance with the subsection. For this court to avoid the application of the Act of 1975 to these transactions could only constitute the invasion by the judiciary of the powers and functions of the legislature, in plain breach of the constitutional separation of powers.”

He then further submitted that the decision of Denham J. in Howard v. Commissioner of Public Works [1994] I.R. 101 at p. 162, sets out the approach to be adopted in construing legislation:-

“Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words. There is well established case law on this aspect of statutory construction.”

Thus in In Re MacManaway [1951] A.C. 161 at p. 169, Lord Radcliffe, in dealing with a reference for advice as to a question as to the meaning of certain words which were contained in the House of Commons (Clergy Disqualification) Act 1801 said:-

‘The meaning which these words ought to be understood to bear is not to be ascertained by any process akin to speculation. The primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act use the words in dispute.’

In Davies Jenkins & Co. Limited v. Davies [1968] A.C. 1097 at p. 1120, Lord Morris of Borth-y-Gest stated:-

‘I understand that it is accepted that when Parliament enacted s. 18 of the Finance Act, 1954, it must have proceeded on the basis that it was not necessary for the purposes of s. 20 of the Finance Act, 1953, that the recipient company should be trading at the time of the receipt of a subvention payment. This, in my view, neither relieves the Courts from giving free and untrammelled consideration to the interpretation of s. 20 nor does it furnish material for their guidance in so giving it. It is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law.’

In R. v. Wimbledon Justices ex parte Derwent [1953] 1 Q.B. 380, Lord Goddard C.J. stated at p. 384:-

‘We are not concerned with that because, although in construing an Act of Parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there, and, if a statute has created a specific offence, it is not for this Court to find other offences which do not appear in the statute.’

In Cox v. Hakes [1890] 15 A.C. 506, Lord Herschell stated at p. 528:-

‘It is not easy to exaggerate the magnitude of this change; nevertheless it must be admitted that if language of the legislature, interpreted according to the recognised canons of construction, involve this result, your Lordships must frankly yield to it, even if you should be satisfied that it was not in the contemplation of the legislature.’

In Craies on Statute Law (7 th Ed.) at p. 67 it is stated:-

‘Even though a court is satisfied that the legislature did not contemplate the consequences of an enactment, a court is bound to give effect to its clear language.’

Halsbury’s Laws of England (4 th Ed.) (Vol. 44) states at paras. 863 and 864 respectively:-

‘Primary meaning to be followed. If there is nothing to modify, alter or qualify the language which a statute contains, the words and sentences must be construed in their ordinary and natural meaning.

Speculation as to Parliament’s intention is not permissible. If the result of the interpretation of a statute according to its primary meaning is not what the legislature intended, it is for the legislature to amend the statute construed rather than for the courts to attempt the necessary amendment by investing plain language with some other than its natural meaning to produce a result which is thought the legislature must have intended.’

The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The court should neither misconstrue words so as to amend defects in the legislation nor legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of a statute, then the court should not speculate but rather construe the Act as enacted. Applying the rules of the interpretation of statutes, in accordance with the fundamental concepts of the Constitution, it would be improper to give a strained construction to the Act of 1963 (Local Government (Planning and Development) Act 1963). Dealing with the fundamental concept, the balancing of rights and powers under the Constitution, the primary and literal approach to the construction of the statute is appropriate.”

Counsel added the submission that there was no intention on the part of the Oireachtas to exclude all long leases. The Oireachtas considered one category of long lease, being that described above in s. 3(2)(d) and excluded it and by implication must have intended to include other categories. It must be assumed that the Oireachtas deliberated carefully upon the legislation and enacted it after due consideration. It may have departed, for example, from the terms of the Report of the Commission of the Private Rented Sector for some or any reason which it deemed sufficient. A Report or White Paper is no more than a recommendation or suggestion to the Oireachtas and is not of itself law. It is of relevance only in resolving ambiguity in a provision if such an ambiguity exists. In the present situation the wording of s. 3 of the R.T.A 2004, is simple and clear, and is not obscure or ambiguous.

Consideration of R.T.A. 2004 as a whole.
With regard to consideration of the R.T.A 2004 as a whole, counsel submitted that the submissions of the applicant, at their highest, went no further than to show that the inclusion of dwellings of the kind occupied by the second named notice party in these proceedings was an oversight on the part of the Oireachtás, being a failure to exempt and exclude such an apartment from the general inclusions. The submissions did not show how another category of dwelling could have been included in s. 3(2) of the Act by implication. In fact, it was conceded that such an extension of s. 3(2) was not possible. This is consistent with the decision of the Supreme Court in the case of The State (Murphy) v. Johnson [1983] I.R. 235, where Griffin J. held that any attempt to substitute “Part V of the Act of 1968” for “Part III of the Act of 1968” would amount to amendment of s. 23 of the 1978 Act rather than interpreting it and this was a function of amending legislation reserved solely to the Oireachtas. This case was one of the many cases spawned by the legislation in respect of driving with an unlawful concentration of alcohol in the body contrary to s. 49 of the Road Traffic Act 1961. At the trial of the prosecutor in the District Court, he was convicted by the respondent District Court Judge or a complaint that the prosecutor had driven a vehicle in a public place at a time when he had unlawful concentration of alcohol in his body, contrary to s. 49 of the Road Traffic Act 1961. At the trial, the concentration of alcohol in the prosecutor’s body at the relevant time was proved by, inter alia, a certificate issued by the Medical Bureau of Road Safety pursuant to s. 22 of the Road Traffic (Amendment) Act of 1978. Section 23 of that Act provided that such certificate shall, unless the contrary is shown, be sufficient evidence of compliance by the Bureau with all the requirements which the Bureau is obliged to comply with by Part III of the Act of 1978 “or under Part III of the Act of 1968”. The reference to Part III of the R.T.A. 1968, appears to be a mistake since that Part III was concerned with driving licences and not with driving offences, while a reference to Part V of the Act of 1968 would have been more suitable. The prosecutor relied upon that mistake when he applied in the High Court and obtained a conditional order of certiorari quashing his conviction, unless cause were shown to the contrary. The High Court allowed the cause shown and discharged the conditional order. On appeal by the prosecutor, it was held by the Supreme Court (O’Higgins C.J., Griffin and Parke JJ.), in disallowing the appeal, (1) that the reference in s. 23 of the Act of 1978 to Part III of the Act of 1968 was an obvious error which the court would not attempt to remedy by treating the erroneous reference as being a reference to Part V of the Act of 1968, since to adopt that course would be to amend the enactment and to usurp a function of the legislature. (2) that proof of compliance with the provisions of Part V of the Act of 1968 was not necessary for a successful prosecution under s. 49 of the Act of 1961, while proof of compliance with the provisions of Part III of the Act of 1978 had been necessary at the trial of the prosecutor and had been supplied by the certificate of the Bureau. O’Higgins C.J. at p. 239 said:-

“On the hearing of this appeal counsel on behalf of the respondent has urged this Court to hold that, having regard to the obvious nature of the error which appears in s. 23, subs (1) and (2) of the Act of 1978, it is competent for a court or judge to read the reference to Part III of the Act of 1968 as a reference to Part V of that Act. I do not accept that submission. Whatever the reason for the apparent error may be, the reference in s. 23 subs. (1) and (2) of the Act of 1978 is to ‘Part III of the Act of 1968’. That reference is clear and unambiguous. To read it as being something other than it is would be, in effect, to amend the subsections. That is not within the competence of the courts and cannot be done.”

At p. 240, Griffin J. said that he agreed with the judgment of the Chief Justice, and enlarged on this by stating:-

“It is for the Oireachtas alone to make laws; the function of the courts is to interpret and construe them. Under the common law, broad rules of construction of statute were laid down. These still apply, subject to the reservation that we now operate under a written constitution. Under these rules, the courts should not proceed on assumption that the legislature has made a mistake, as there is “a strong presumption” that the legislature does not make mistakes. However, mistakes do occasionally occur in printing or in drafting and, if it is possible, the words of a statute must be construed so as to give a sensible meaning to them ut res magis valeat quam pereat. In the last century it was held to be possible, in certain circumstances, to treat obvious misprints as if they had been rectified.”

This case emphasises the caution exercised by the court not to usurp the sole and exclusive power of making laws for the State which is vested in the Oireachtás.

Counsel then referred to s. 5 of the Interpretation Act 2005, which has been set out above and referred to the construing of a provision of an Act which is obscure or ambiguous or on a literal interpretation would be absurd or would fail to reflect the plain intention of the Oireachtas. He submitted that the Oireachtas has chosen in this instance to proceed by way of including all dwellings which are the subject of a tenancy and to exclude dwellings, which meet precise criteria in s. 3(2) of the R.T.A. 2004. Counsel submits that the presumption is of inclusion rather than exclusion. It is clear that the scheme of the Act was to avoid devising criteria for the categories of leased dwellings to be included in the scheme. This is not absurd, he submits, as it makes the law certain and avoids the difficulty of having leases devised which would thwart the overall objectives of the scheme. He submits that it is for the Oireachtas alone to add to or vary the categories of dwelling which are to be included in the scheme and which are to be specifically put in a category which is to be defined for exclusion from the wide embrace of the scheme. The drafting of s. 3 in subparas. (a) to (i) shows readiness to set out the description of the exemptions with a degree of specific and precise categorisation. It is the province of the Oireachtas alone to deal with matters involving policy and to add to or vary the categories of dwelling to be specified and defined for exclusion from the scheme. Moreover, he submits that this is not be done on a case by case basis by the courts, because this would be for the courts to trespass on the demesne of the legislature and, particularly where there is a lacuna in the Act in relation to long leases and the characteristics and features of such leases which would qualify such long leases to be included in a further category (j) or a subsection 3(3) of exclusion from the ambit of s. 3(1). There is no definition of a long lease included in the Act and there is no guidance given in the Act as to the terms including the length of such a lease or the types of terms and conditions to be included in such a lease as would qualify it for exclusion from the ambit of section 3(1).

Counsel for the second named notice party makes the point that in fact many of the provisions which counsel for the applicant referred to as being inappropriate in respect of the provisions of the R.T.A. 2004, in effect can be adapted to fit in with the requirements of the R.T.A. 2004. For example, the repair obligations imposed by the 2004 Act on the landlord can be dealt with by the members of the Management Company agreeing in general meeting to carry out necessary repairs on units leased by them or to indemnify the Management Company for the costs of repairs carried out by the Management Company in respect of a unit leased by a member. It is also the case that where a lease imposes repair obligations on a tenant, these will be applied if it is to the advantage of the tenant. With regard to rent review, s. 19 of the R.T.A. 2004 merely provides that the rent cannot be greater than the market rent. There is no prohibition on charging rent which is less than the market rent so the fact that the rent is €0.25 per annum is irrelevant. In the event of a review, the appropriate rent may be determined by reference to the criteria laid down in the Act. Any dispute about the appropriate level of rent may have been referred to the applicant under s. 78 of the Act. The applicant would have been able to take into account the length of the lease and the premium paid upon its commencement in determining an appropriate level of rent. In particular, the applicant would be in a position to ensure that all units in the development were charged the same rent. Since all of the leaseholders paying the rent are all members of the Management Company, it may safely be assumed that an excessive level of rent would not be sought from any or all of the leaseholders.

Section 26 of the R.T.A. 2004 states as follows:-

“Nothing in this Part operates to derogate from any rights the tenant enjoys for the time being (by reason of the tenancy concerned) that are more beneficial for the tenant than those created by this Part.”

Since the existing lease is more beneficial to the second named notice party with regard to security of tenure, his tenancy is not and never becomes a Part 4 tenancy, and the submissions of the applicant in this regard appear to be incorrect. Also, counsel contends that it is not unreasonable for the Management Company to be aware of the names of all persons residing in a dwelling, since there may well be security and safety implications if it is not known who is residing in each dwelling within an apartment block, nor is it absurd for the second named notice party to seek the consent of the Management Company before subleasing his dwelling. This is consistent with the good and orderly management of an apartment complex. This is a requirement of the lease in any case and so it cannot be considered to fly in the face of reason. Section 187 of the R.T.A. 2004 does no more than assist any subtenant of an apartment who may well have a more immediate concern with the management than his own landlord to resolve difficulties he may have such as blocked stairways or noise or pollution or other nuisances. Counsel also contests the submission of the applicant that there should be a limitation of the meaning of s. 3(2) of the Act as this was not necessitated by the examples given on behalf of the applicant and this does not resolve the question as to how a long lease can be enforced with sufficient or any precision from the provisions of the R.T.A. 2004.

Counsel contests the submission made on behalf of the applicant that there should be a limitation on the meaning of s. 3(2) of the Act as this was not necessitated by the examples cited by the applicant and this does not in any way resolve the question as to how a long lease can be inferred with sufficient precision from the wording of the Act. In particular, counsel submits that there is nothing in the R.T.A. 2004 which would enable the question to be resolved as to how a long lease can be inferred with precision as to the length of such a lease and the terms and conditions and covenants involved in such a lease or what characteristics thereof there needs to be for it to be exempted from the ambit of s. 3(1) of the Act.

Counsel for the second named notice party makes two further points. First, the R.T.A. 2004 contains penal provisions with regard to the registration of dwellings as set out in s. 144 of the Act. He submits that accordingly the construction of the provisions of the R.T.A. 2004, which determined which dwellings are within the purview of the Act, must be strictly construed ( Mullins v. Harnett [1998] 4 I.R. 246). It is, he submits imperative that the court does not stray into the realm of excluding or including categories of dwellings and in particular, well defined categories of dwellings from the ambit of s. 3 of the Act. Secondly, counsel submits that the structure of s. 3 is based on a rational and sensible approach. In the event of express inclusion, it would be easier to devise leases which would circumvent the categories specified in the Act. Enforcement action is also made easier by the fact that the prosecuting authority does not have to show that a dwelling was within a category defined by the Act. As things stand, once it is established that a dwelling is the subject of a lease, it is a relatively simple matter to decide if it falls within one of the precisely defined exceptions excluding this lease from the ambit of the Act. Counsel further contends that counsel for the applicant was incorrect in stating that there never was an intention to deal with long leases in the bill given that there is express mention in the Act of those leaseholders who are entitled to acquire the fee simple in respect of their dwelling. Finally, counsel points to a lacuna at s. 3(2) in the Act and points particularly to the lack of a further exclusionary provision at (j) or s. 3(3) by which preferably clearly described and defined longer leases would be excluded from the ambit of s. 3(1) of the Act. In the absence of such a further exemption provision or such other exclusion provision as fits the policy of the Act and commends itself to the Oireachtas, there is a void on the basis of the provisions being as they were at the time when the learned Circuit Court Judge gave her decision. Because of the maxim on the lines that if one sets out exceptions then by naming these, it is implicit that any further exclusionary clause, which is omitted, is to be taken as having been deliberately omitted by the Oireachtas. Furthermore, the provisions of such an exclusionary provision making certain long leases exempt from the scope of s. 3(1) are not described, nor are the covenants and features of and length of term thereof defined or set out in the Act either explicitly or implicitly. This is especially the case when the features of such an exempting provision are neither explicit nor implicit nor to be deduced from the entire of the Act particularly as to the terms, length and features of any probable necessarily contemplated amending exclusionary clause.

In summary, the conclusion is that the decision of the respondent was correct and it is for the legislature and not for the courts to fill the gap if the Oireachtas so chooses. The courts should not be seduced by siren voices into trespassing on the legislative preserves of the Oireachtas. This is especially the case of the features of such an excluding provision and exempting legislation are at present in a void which it is for the legislature to fill and not for the courts to try to remedy by a process of case by case decision.

I have concluded that the learned Circuit Court Judge was correct in that if the provisions of s. 3(1) were not to apply to long leases of owner occupied apartments then the legislature should have expressly excluded such dwellings with clear descriptions and definitions of such long leases as were being excluded from the ambit of s. 3(1), just as was done to so exclude other dwellings as specified in s. 3(2)(a) – (i) inclusive. I agree that if the person drafting the Act omitted such a dwelling as this in error then it is not the function of the court to concoct an appropriate exclusionary provision at (j) or s. 3(3) to rectify such a mistake. The section is clear and unambiguous and the function of the court in interpreting a statute is confined to ascertaining the true meaning of each statutory provision and the courts have no license to trespass on the policy making and legislative role of the Oireachtas in devising amending legislation. It is, indeed, clear from s. 3(1) of the 2004 Act that all dwellings are included by s. 3 of that Act save those expressly excluded as set out and specified in s. 3(2) so that this apartment is a dwelling to which the Act applies and the court is precluded from dealing with the dispute in respect of the service charges. Accordingly, the court must refuse the reliefs sought by the applicant. I will hear counsel as to the appropriate orders to be made on foot of these findings.