High Court dismisses appeal as no point of law was advanced regarding the Tribunal's Determination Order.

Neutral Citation

THE HIGH COURT

[2014 No. 155 MCA]

BETWEEN

CHRISTOPHER SCIBERRAS

APPELLANT

AND

THE PRIVATE RESIDENTIAL TENANCIES BOARD

RESPONDENT

AND

BY ORDER OF THE HIGH COURT

CHARLES DUNNE AND PETER DUNNE

NOTICE PARTIES

JUDGMENT of Mr. Justice McDermott delivered on the 21st day of May, 2015

This appeal is brought pursuant to s. 123(3) of the Residential Tenancies Act 2004, from a Determination Order made by the

respondent on 4th April, 2014, following a hearing which took place before the Tenancy Tribunal on 12th March, 2014.

1. On 25th June, 2013, the appellant submitted an application to the Private Residential Tenancies Board, Dispute Resolution Service

in respect of his tenancy of a room at 31 Reuben Avenue, Dublin 8, which commenced on 28th May, 2011. The case was taken

against the landlords, Charles Dunne and Peter Dunne.

2. In the application the applicant states that he was paying a rent of €250 per month, plus €15 for utilities and that the landlords

sought a new rent of €285 plus €15 utilities. He claimed that the landlord was seeking gas payments which were contrary to the

terms of the letting agreement and a rental increase without justification. Furthermore, he complained that the landlord had refused

to accept the rent and had issued a termination notice stating he would not accept rent unless the increased amount was proffered.

He also complained that the landlord had a duty of care to maintain the premises in a healthy condition.

3. On 15th June, 2013, a document purporting to be a Notice to Quit was given to the appellant by Mr. Charles Dunne, requiring the

appellant to remove himself from the premises by 31st July, 2103. He was also informed in the notice that any objection as to its

validity and the right of the landlord to serve it must be made to the Private Residential Tenancies Board under Part 6 of the Private

Residential Tenancies Act 2004, within 20 days of its receipt. The terms and conditions of the lease indicated that it was a monthly

tenancy and that utility bills (including refuse charges) were to be shared with all other persons in the house. The landlord sought

payment of the monies due in respect of the gas supply to the house on 9th March, 2013.

4. An adjudicator, Ms. Suzy Quirke, appointed under s. 93(3) of the Residential Tenancies Act 2004, heard the appellant’s application

on 18th September, 2013.

5. The adjudicator made a finding that in accordance with the tenancy agreement of 28th May, 2011, the appellant paid a rent of

€250 per month and a deposit of €250. This rent was supplemented by €15 per month as part cover of gas bills and an increase in

rent had been requested to €285 per month. A notice of termination was served by the landlord on 15th June, 2013. The property

was a three bed-roomed house which had been let out to four tenants, one occupying what was a living room of the house and each

of the other tenants having their own room, but sharing kitchen and bathroom facilities.

6. The adjudicator found that it was not reasonable for the landlord to expect tenants who previously assumed the gas bill to be

covered by the rent to be subject to a further demand of a balancing charge. She also found that the landlord was entitled to

demand a reasonable increase in the rent and since this could not be agreed, suggested that the best option might be for the

relationship to terminate. It was noted that the appellant’s claim concerning the standard of maintenance was mainly grounded upon

the behaviour of the other three occupants of the house, but primarily their smoking in the common and private areas. It was noted

that though the landlord could not prevent other tenants from smoking in their own private space, he was obliged to ensure that

there were smoke free areas elsewhere. The adjudicator found that the notice of termination was invalid. The claim that the rent

sought was more than the market rate, was not upheld nor was the submission that the landlord was in breach of his general

obligations.

The Appeal

7. The appellant appealed the adjudicator’s determination on the grounds that the notice of termination of tenancy was invalid, the

rent increase sought was unreasonable and more than the market rate, the landlord was in breach of a fixed term lease, and that the

landlord was in breach of his general obligations.

8. A hearing of the appeal before the Tribunal was heard on 12th March, 2014. The entire Private Residential Tenancies Board file was

submitted to the Tribunal. In addition, the appellant and the landlord submitted printouts of rents for comparable residential dwellings

from various companies’ websites. A determination was made by the Tribunal and notified to the Board on 18th March, 2014. It made

a Determination Order that:-

“1. A rent for the dwelling should be set at €285 per month with effect from 1st April, 2014, until and unless lawfully

varied by the respondent landlord.

2. The respondent landlord shall pay the appellant tenant the sum of €80 within seven days of the date of the issue of

this Determination Order being damages of €300 for the consequences suffered by the Appellant Tenant as a result of the

failure of the respondent landlord to fulfil his obligations less arrears for gas utility bills of €180 (€15 x 12) plus a refuse

collection charge of €40 in respect of the tenancy of the dwelling at 31 Reuben Avenue, Dublin 8.”

It was accepted at the hearing by both parties that a notice of termination served on the tenant on 15th June, 2013, was invalid.

The determination sets out the submissions of both parties, the findings and reasons upon which they were based.

9. The Tribunal found that the tenant was in breach of his obligations to pay utility bills and other charges as they fell due and

accrued a debt of €220 to the respondent landlord in respect of those bills and charges. It noted that there was a clear conflict of

evidence as to whether or not the tenants were responsible for the payment of gas bills. Paragraph 3 of the lease which was handed

to each tenant stated clearly that utility bills must be shared by all persons in the house. It was the evidence of the respondent

landlord that the other tenants paid the bill in amounts of €15 per month, topped up by any arrears when the final bill was issued. It

was the evidence of the appellant tenant that he did not pay the €15 for the first year of the tenancy. Having heard all of the

evidence, the Tribunal determined that the appellant was also responsible for the amount of €15 per month from the date he moved

in. In addition, he was also required to pay the refuse levy of €14 as requested by the respondent landlord. The Tribunal also cited s.

16(2) of the Residential Tenancies Act 2004, which required tenants to pay any charges in accordance with the lease or tenancy

agreement.

10. The Tribunal concluded that the landlord was in breach of his obligations to ensure the peaceful occupation of the dwelling which

caused the tenant inconvenience and distress for which the appellant was awarded €300 in damages. It accepted that when he

moved into the premises none of the tenants smoked. It was reasonable for him to assume that there was an implied term in his

contract with the respondent landlord that the dwelling, or at least its common areas, would be smoke free in the future. The Tribunal

was not satisfied on the evidence that smoking in one room permeated the whole dwelling, including the appellant’s room and

determined that there was no basis upon which to make an award of damages on that ground. It noted that there was conflicting

evidence as to the condition of the house, and the appellant’s peaceful enjoyment of his tenancy because of the activities of other

tenants. Section 15 of the Act provided that the landlord owed to each person who could be potentially affected a duty to enforce

the obligations of the tenant under the tenancy. There was a conflict as to the number and nature of the complaints made by the

appellant to the landlord in this regard, but the Tribunal concluded that the landlord could have done more to ensure his peaceful

enjoyment of the tenancy by enforcing the obligations of other tenants residing there.

11. The appellant’s complaint that the increased rent demanded was more than the market rate was partially upheld. The Tribunal

found that the market rate up to the date of the Tribunal was €250 per month, but was €285 per month thereafter. It noted that

conflicting evidence had been given by both parties concerning this issue. Section 24 of the Act defined a market rent as “that which

a willing tenant not already in occupation would give and a willing landlord would take for the dwelling in each case on the basis of

vacant possession being given, and having regard to (a) the other terms of the tenancy and (b), the letting values of a dwelling of

similar size, type and character to the dwelling and situated in a comparable area to that in which it is situated”. The Tribunal noted

that on 15th May, 2013, the landlord gave written notice to the tenant of a rent increase which was to come into effect from 1st

June which was invalid because it did not comply with s. 22 of the Act, which required 28 days notice from the date upon which the

new rent was to have effect.

12. The appellant complained to the Tribunal that the landlord made untrue statements constituting false and misleading evidence

before the adjudicator. The Tribunal was satisfied that these statements reflected a conflict of evidence reasonably explained by the

respondent landlords’ intention to charge different rents for different rooms, and different assertions that the dwelling was from time

to time a two, three or four bed-roomed house. Therefore, the Tribunal found no reason to recommend that the Board take any

action in respect of prosecution under s. 113 of the 2004 Act for the making of a false and misleading statement in a material

respect, knowing it to be false and misleading to the adjudicator, the Tribunal or the Board.

13. The Determination Order was made by the Private Residential Tenancies Board on 4th April, 2014.

Notice of Motion dated 24th April 2014

14. The appellant seeks to appeal the order pursuant to s.123(3) of the Act which provides that:-

“Any of the parties may appeal to the High Court, within the relevant period from a determination of the Tribunal (as

embodied in a Determination Order) on a point of law.”

15. The determination of the High Court on this appeal in relation to the point of law is final and conclusive. Under s.123(5) the Court

may direct the Board to cancel the Determination Order concerned or to vary it in such manner as the Court specifies. The Board

entered an appearance on the 16th May 2014 and the landlords were added as notice parties pursuant to an order of the Deputy

Master made 24th June 2014. The same order directed the respondent to deliver copies of all documents upon which the respondent

relied in arriving at its decision, to the applicant. The appeal motion was grounded on the affidavit of the appellant sworn the 21st

July 2014. The replying affidavit sworn by Mr. Tim Ryan, Chairperson of the Tribunal which heard the case, was sworn on the 22nd

August, 2014 and exhibited the full transcript of the hearing. A “statement of claim in response…” and a replying affidavit was sworn

on the 10th September, 2014. The appellant appeared in person.

The Grounds of Appeal

16. An appellant must under s.123(3) identify the point or points of law upon which an appeal is taken to the High Court from the

Determination Order. On an application to strike out this appeal before the Deputy Master, the applicant was directed to furnish

written points of law in relation to this appeal within two weeks of the date of receipt of the documentation. The appellant was

representing himself and I recognise the difficulties which he had in formulating a point of law. However, I am not satisfied that any

ground of appeal based on a point of law has been submitted to the Court in writing or in oral argument upon which the Court could

set aside the Determination Order or vary it in any respect.

17. The Court has endeavoured to identify any possible points of law raised in the papers submitted.

18. The appellant submits that the Tenancy Tribunal had no jurisdiction to determine that the rent should be raised to €285 per

month because it had failed to discuss this issue with the parties at the hearing and no consent or authorisation had been given by

any of the parties in the case to raise the issue of future rent. This is clearly incorrect. A transcript of the hearing indicates that a

substantial period of time was devoted to consideration of a rental increase from €250 to €285 as proposed by the landlords. The

appellant informed the Tribunal that he informed the landlords that he was happy to pay €250 but would challenge any attempt to

increase the rent by referring the case to the PRTB. However, he indicated that he would comply with any order made if an increase

in rent was awarded. Specifically, the appellant was asked by a member of the Tribunal to confirm that his appeal related to the

market rent of the premises. He offered evidence in respect of the rental increase, contending that this was not in accordance with

market rent. He also cross-examined one of the landlords in relation to the rental increase proposed. It is clear that the conclusion

reached by the Tribunal on the level of rent to be paid, is based upon the relevant evidence adduced before it by both parties.

19. The appellant also submitted that the Tribunal had no jurisdiction to order that the rent be raised because it had been less than

12 months since the last rent review occurred on the 12th June, 2013. By letter of the 12th June, 2013 the landlords advised that

they would increase the rent from June from €250 to €285. This notice was entirely inadequate and in contravention of s.22 of the

Act which requires that a notice in writing be served by the landlord on the tenant stating the amount of the new rent and the date

from which it is to take effect 28 days before that date. It was this very proposal which was the subject of the referral to the PRTB

on the 25th June, 2013. The appellant submitted that the Determination Order was in breach of s.20(1) of the Act which stipulates

that a review of rent may not occur more frequently than once in each period of 12 months. This is plainly not so. The appellant

referred the matter under the 2004 Act and sought a dispute resolution because the landlord was seeking the rent increase. The

same issue is the subject of the Determination Order. This ground of appeal has no merit.

20. The applicant alleges that the PRTB was clearly informed in the course of the hearing that the landlords had committed perjury

and alleges that the landlords committed fraud, blackmail and extortion against him.

21. A wholly and unsustainable allegation was made that the Tribunal and/or Board engaged in some sort of cover up of what was

characterised as alleged perjury, blackmail and extortion and were obstructing or attempting to pervert the course of justice because

they failed to take any action against the landlords who were alleged to be in breach of s.113 of the Act. It provides that a person is

guilty of an offence if:-

“(a) he or she makes a statement or supplies information to an Adjudicator, the Tribunal or the Board in connection with

the performance by the Adjudicator, Tribunal or Board of his or her or its functions under this Part in relation to a dispute.

(b) that statement or information is false or misleading in a material respect, and

(c) the person knows that statement or information is so false or misleading”.

22. The Tribunal found that there was no reason to recommend that the Board take any action under s.113 of the Act. It was

satisfied that the matters raised by the appellant tenant as “untrue” statements by the landlord did not indicate that false or

misleading evidence had been given to the Adjudicator. The Tribunal found that these statements reflected a conflict of evidence

reasonably explained by the landlords. This conflict referred to charging different rents for different rooms, and a change in the

configuration of the house and the number of bedrooms provided. Under s.9(3) the Board may institute and prosecute offences under

the Act. It did not do so. The prosecution of an offence is a matter entirely in the Board’s discretion, and is not amenable to review

by this Court under the appeal process, which is confined to an appeal on a point of law in respect of a Determination Order. This

issue has no relevance to the substance of that order. There is no evidence of mala fides on the part of the Tribunal or the Board.

The allegations and the intemperate manner in which they are framed against the landlords, the Board and the Tribunal are entirely

unsubstantiated and unwarranted.

23. The appellant also complained that the Tribunal ignored alleged offences committed under s.14 and s.74 of the 2004 Act. It was

alleged that the landlords sought to penalise him by bringing the matter to the Tribunal contrary to s.14 and served an invalid notice

of termination of tenancy pursuant to s.74. These issues are not the proper subject of this appeal and the initiation of a prosecution

in respect of any alleged breaches of s.14 and s.74, are matters entirely for the Board and outside the scope of an appeal under

s.123(3).

24. The appellant clearly has grievances in relation to the evidence given by one of the landlords to the Adjudicator and the Tribunal

in respect of the number of rooms offered for rent in the house and whether increased rents had been charged in respect of one or

more of those rooms and other issues. These matters were part of the overall evidence heard in the course of the Tribunal hearing.

The resolution of issues of credibility was entirely a matter for the Tribunal. This is not a rehearing of the evidence on the merits of

the case. The appellant succeeded in defeating the landlords’ claim for increased rent from June 2013 but the Tribunal found that, in

the interim, the market rent appropriate to the room had increased and that on the date of its determination the market rent was

€285 per month. It also made an award of damages but granted a set-off in relation to amounts owing by the appellant. The

determination of any of these issues was a matter for the Tribunal and does not give rise to any point of law under s.123(3).

25. The appellant makes a number of allegations of discrimination against him by the Tribunal which are wholly unsubstantiated and

unwarranted.

26. The appellant submits that the Tribunal had no jurisdiction to consider a review of the rent since the notice to increase the rent

was served in March 2013 and was invalid. This is without merit since the appellant referred this matter and sought adjudication in

respect of a review of rent under s.78 of the Act.

27. I am satisfied, having considered all of the documents submitted in the course of this appeal and the extensive submissions made

by the parties, that no stateable point of law has been advanced and that this appeal should be dismissed.