A DISTRICT court judge refused to sign a determination order made by the Residential Tenancies Board after learning that the landlord had logged in to the hearing on his phone in the back of his van.
Solicitor Michelle Nunan initially made the request of Judge James McNulty at Skibbereen Court in December, but the judge adjourned it. He said he wanted to inform himself of the situation and not merely rubber-stamp a decision made elsewhere.
With that in mind, he asked that both the landlord (Colin O’Sullivan) and the tenants (Gabriela Lake and McKenzie Lake) be in attendance. The Residential Tenancies Board (RTB) initially made the determination order in March 2023 against Colin O’Sullivan of Carrigillihy of Union Hall and of Ballycahane, Castlehaven.
The RTB order – which was made in respect of the tenancy of a premises at Carrigillihy, Union Hall – directed the landlord to comply with its findings, and the findings of its appeals tribunal. The RTB ruled that the tenancy agreement entered into by the mother and daughter was ‘unlawfully terminated’ by the landlord Colin O’Sullivan.
In addition, the RTB instructed the landlord to pay Gabriela Lake and McKenzie Lake €18,500 – a payment that includes €12,000 for damages for the unlawful terminations; €1,000 for the unjustifiably retained security deposit; €3,500 for the cost of kennelling dogs; and €2,000 the value of the tenants’ cars.
The RTB also directed the landlord to return all personal items and furniture listed in the case file. Michelle Nunan told Judge McNulty that the RTB’s decision was ‘binding’ and she referred to legal precedent, which states that ‘the district court shall make an order if the respondent (the landlord) has failed to comply with the terms’. She said anyone unhappy with the findings of the RTB tribunal could appeal on a point of law to the High Court, but that was not done in this case.
But when the case was called at a recent sitting, Mary Toher, a solicitor who had just recently come on record for the landlord, said her client was ‘heard’ but not represented at the RTB hearings. She argued that a district court judge could decline to approve the RTB’s determination order on the basis that her client – who was living in a mobile home at the time and was in very ill-health – had been receiving treatment for a very aggressive form of cancer.
Mary Toher argued that Ms Lake’s rental payments were erratic, and that she had missed payments. She also said the absence of one of the tenants was a cause of concern for the landlord. ‘He didn’t observe formality in terminating the tenancy, but he found himself in a position where he was no longer in a position to keep the tenancy going,’ said the solicitor.
Ms Toher told the court that there was no written tenancy agreement to start with. And she argued that the tenants did ‘untold damage to the property which he (the landlord) has still not rectified’.
Michelle Noonan acknowledged that ‘this case has been difficult from the start’ but she said the landlord’s medical condition does not give him a defence. ‘The case has already been adjudicated twice,’ she said. Judge McNulty held a different view. ‘This man found himself in adversarial proceedings, not legally represented, and unwell – that is a cause of concern for this court,’ he stated.
However, it was only when Colin O’Sullivan was called to give evidence, that it emerged he had attended the proceedings via his mobile phone in his van. ‘I don’t feel I had my say at both hearings,’ he stated in evidence in his own defence.
‘This court has been asked to endorse an order for the enforcement of a decision of a tribunal by the RTB, which was adverse to Mr O’Sullivan,’ Judge McNulty stated in summing up. ‘This court is satisfied that there are substantial reasons not to make that order. Colin O’Sullivan was unrepresented and these were matters of complexity.
‘There were added difficulties arising from his history of ill-health,’ the judge added.
‘Another cause for concern is the virtual hearing for the determination of the appeal, where he was participating using his phone in the back of his van. The court accepts that some hearings now can be heard virtually, but when one of the parties to the dispute is unrepresented and unwell and so disadvantaged by being on the phone participating in a legal tribunal, there should be equality of arms. In this instance, there wasn’t, in legal terms, as Colin O’Sullivan was significantly disadvantaged by his remoteness. This leads me to the view that this court should not endorse the decision of the tribunal. If you are not happy with my decision, you can appeal it to the Circuit Court,’ he concluded.
Recognisances were fixed in this case for an appeal to Skibbereen Circuit Court.
