by Cathal N. Young, O'Reilly & Co. Solicitors & Notaries Public in Dublin

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

The factual background against which it is the applicant’s contention that the respondent erred in law in failing to interpret the legislation in accordance with the applicant’s contentions in relation to the intention of the Oireachtas in the legislation is explained as follows. The predecessor in title to the second named notice party was Gary Mallon’s mother, Niamh Mahon, who was referred to as “the Lessee” in an indenture of lease dated 23rd May, 2003 between Larry Mahon, James Grew and Peter Edwards, being referred to as “the lessor”, of the first part and S&L Management Company Limited (called “the Management Company”), of the second part and Niamh Mahon called “the Lessee” of the third part. The second named notice party’s predecessor had purchased apartment No. 62 on the third floor of an apartment building known as Elmfield Court, Ninth Lock Road, Clondalkin, Dublin 22, the demised premises which are set out in the First Schedule to the lease. Her successor, her son Gary Mallon now holds the same apartment for the residue of a term of 500 years from 1st November, 2002, subject to paying thereafter the yearly rent of €0.05 in every year or such increased rent as shall be payable pursuant to the provisions of the Seventh Schedule hereto, such rent to be paid in advance on 1st January in each year, the first payment thereof being a proportionate part of the said yearly rent to be paid on the execution of the lease. The first named notice party, the S&L Management Company Limited, had issued proceedings in the District Court for the recovery of service charges and obtained judgment for €1,862.56 on 11th April, 2008 against the second named notice party as defendant. The respondent held in a considered and careful reserved judgment dated 3rd April, 2009 that a dispute relating to the recovery of service charges concerning an apartment occupied by an owner under a long lease, the subject matter of an appeal from the District Court to the Circuit Court, fell outside the remit of the courts. The reasoning behind this order was that the court, after receiving written submissions and also after hearing verbal submissions, decided that the court had to have regard to the wording of the R.T.A. 2004, which appeared to state the proposition that the applicant Board has sole jurisdiction to deal with such disputes.

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Reference Info: n/a | Ireland

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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