Overview
The Court of Appeal (the CA) recently dismissed an appeal brought by the second named Defendant against a High Court decision refusing her to adjourn these special summons proceedings. The purpose of the adjournment was to allow the Residential Tenancy Board (the RTB) to decide an issue referred to it by the second named defendant (Ms. Fitzgerald)
Facts
Mr. Justice Garrett Simons in the High Court refused an application by Ms. Fitzgerald to adjourn the special summons proceedings issued by the plaintiffs. The adjournment was sought to allow the RTB to decide on an issue raised by Ms Fitzgerald surrounding her purported tenancy in a property (the Property) owned by the first named defendant, her brother, David Fitzgerald in County Clare. The plaintiffs in proceedings are the Receiver appointed over the Property and the charge holder.
The plaintiffs sought orders for possession of the Property which owing to Ms. Fitzgerald's claim of being lawfully entitled to possession would require determination. Both plaintiffs refused to accept that Ms. Fitzgerald was genuinely a tenant of the property and various affidavits were sworn in relation to the basis for this contention.
Decision
Mr. Justice O'Moore found that whilst the RTB has jurisdiction to determine a dispute between a landlord and a tenant it does not have jurisdiction to "determine exclusively the question of jurisdictional fact as to whether a valid tenancy ever existed." It is a well-established principle of administrative law that an inferior Tribunal such as the RTB does not have jurisdiction to determine its own jurisdiction.
Ms. Fitzgerald rather than disputing the High Court finding as regards jurisdiction of the RTB to determine the issue of tenancy or not instead claimed the RTB should have been given the opportunity to determine the terms of tenancy as she contended a valid Part 4 tenancy was in place. The CA took issue with the suggestion that Ms. Fitzgerald was suggesting the RTB should proceed on the basis of assuming a valid tenancy simply because she contends all evidence suggests this as being the case.
Mr. Justice O'Moore went so far as to say it "would have been a nonsense to stay the special summons proceedings in order to allow Ms. Fitzgerald to seek determinations from the RTB when the first issue that would have arisen in any proceedings before the RTB was whether or not that body had jurisdiction given the dispute about Ms. Fitzgerald’s status as tenant."
In dismissing the appeal Mr. Justice O'Moore grouped the 11 grounds of appeal put forward into three distinct categories, grounds 1 to 6 dealing with jurisdiction, grounds 7 to 9 dealing with matters of law and fact and the final two grounds relating to costs.
Mr. Justice O'Moore highlighted that if the High Court had been minded to grant the adjournment sought for the RTB to determine the terms of a tenancy in doing so they would have had to decide conclusively that at the motion to adjourn Ms. Fitzgerald had established a binding tenancy such that the RTB would have jurisdiction in the matter. He noted that on such an application to adjourn the High Court could not have been properly requested to make such a determination. The motion to adjourn at no stage sought a declaration as regards Ms. Fitzgerald's purported status as a tenant.
Takeaways
The CA decision sets out the jurisdiction of the RTB to determine disputes between a landlord and tenant but crucially provides authority that they "do not have jurisdiction to determine the jurisdictional fact as to whether a valid tenancy ever existed."
For more information, please contact Iseult Cody or your usual contact in Beauchamps.
About the author
Iseult Cody
About Iseult
Iseult is an associate in our commercial real estate team. Iseult works primarily with financial institutions, receivers and private equity funds and investors.