High Court: Tenants ordered to vacate properties in receivership entitled to challenge constitutionality of Circuit Court order

About this case:

• Judgment:
  External link

In the appeal to the High Court, the tenants contested an Order which was made in May 2016, enforcing a Determination Order which had been made by the Residential Tenancies Board against the respondents pursuant to the Residential Tenancies Act 2004.

Background

The receiver, Michael McAteer, was appointed by Bank of Ireland over a number of properties which had originally been owned by Seamus Finucane and John Quinn. The respondents in this matter are tenants of the various properties at 18 Ruanbeg Place, Ruanbeg Manor, Co. Kildare, in respect of which Mr McAteer was appointed as receiver.

In July 2014, the receiver served a Notice of Termination on the tenants in respect of each of the properties. No application was made by any of the tenants to refer the Notice of Termination to the Residential Tenancies Board.

When the tenants failed to comply with the terms of the Notice of Termination, the receiver brought a complaint to the Residential Tenancies Board in August 2015.

The complaint was determined by an Adjudicator appointed by the Residential Tenancies Board in September 2015.

The tenants filed an appeal to the decision of the adjudicator and in December 2015 the matter came on for hearing before the Tribunal of the Residential Tenancies Board. The Tribunal determined that the notice of termination was valid, and that the tenants had to vacate the properties within 14 days.

In breach of the terms of this Determination Order, the tenants again failed to comply.

Under the terms of the Residential Tenancies Act 2004, a Determination Order is final and conclusive, unless the tenants bring an appeal to the High Court on a point of law. No such appeal was brought by the tenants and when they did not give up possession of the various properties, the receiver issued an originating notice of motion seeking to enforce the Determination Order.

The Circuit Court

The Order of the court records that, having heard counsel for the receiver, the Judge made an order pursuant to s. 124 of the Residential Tenancies Act 2004 (as amended) that the determination order of the Private Residential Tenancies Board be enforced.

It was further ordered that the tenants of No. 18 Ruanbeg Place, Ruanbeg Manor, Co. Kildare, vacate and give up possession of the said dwelling within fourteen days.

In May 2016, the tenants appealed the Order of the Circuit Court.

The tenants’ application

At the hearing of the appeal, Mr Colin Fasie stated that he was one of the tenants in No. 18 Ruanbeg Place and that he had authority to speak on behalf of all the.

As he did not have any legal representation, he was allowed the assistance of a McKenzie Friend.

Mr. Fasie, on behalf of all the tenants, sought an adjournment of the hearing of the Circuit Appeal on the basis that he and the other tenants were firmly of the belief that the matter had not been dealt with in open court in May 2016. The purpose of this adjournment was so he could take up a copy of the Digital Audio Recording of the proceedings in the Circuit Court that day.

Mr. Fasie’s submission to the court was that:-

“I say Your Honour that we appealed these matters because we assumed that the Applicant was correct, but we always had a difficulty insofar as we were in Court and did not hear the cases called, but only after seeking specialist advice and after closer inspection of the documentation, did the shortfalls and procedural errors, which the Applicants themselves admit to unfolded to, the degree they did. I am one hundred percent sure that the Orders were not made on the day, as the judge left unexpectedly on that day and the DAR will reflect this.”

Further submitted on behalf of the tenants was an affidavit sworn by a Mr. Thomas Morrin, who was present in Naas Circuit Court for another matter, but was also aware of the present application which was coming before the court on the same day.

The High Court

Mr Justice Barr stated that the “assertion made by Mr Fasie on behalf of the (tenants) and the averments contained in Mr Morrin’s affidavit, raise a very serious allegation before the court”.

In effect, the tenants alleged that the May 2016 Circuit Court Order was fraudulently or improperly obtained.

Justice Barr emphasised that “the Constitution provides that, save for certain exceptions which are specifically provided for by law, or due to a situation of extreme emergency, where an application can be made to a judge in his house, justice must be administered in public. This means that all applications to the court must be made in open court, to which members of the public and journalists have a right of access”.

Accordingly, the allegation is that the receiver and the Circuit Court Judge “acted in a way that was totally improper and unconstitutional”.

While recognising the possibility of the tenants application being a delaying tactic, Justice Barr stated that the allegation made by Mr Fasie was “so fundamental to the administration of justice, and where that allegation can be definitively resolved by production of the D.A.R. for the day in question”, it is appropriate that the court should accede to a request for an adjournment and should make provision for the taking up of the D.A.R. in advance of the matter coming back before the High Court on Circuit in the next appeal sessions.

Reserving the question of costs, Justice Barr directed that either of the parties may take up a copy of the D.A.R., at their own expense, and further directed that the cases were to be given priority in the next Circuit Appeals hearings in Naas.