The High Court dismissed John Dominik Halbherr’s appeal against a Residential Tenancies Board determination after ruling that it was brought outside the statutory time limit.
The preliminary issue before the court was whether the appeal had been commenced within the 21 days allowed by section 123 of the Residential Tenancies Act 2004. Mr Justice Meenan delivered judgment on 12 February 2018.
The Board’s determination was dated 14 July 2017 and issued to Mr Halbherr by letter dated 18 July. The Board argued that the 21-day period began on the issue date and expired on 7 August. It submitted that the Act referred to when a determination was “issued”, rather than when it was served or received.
Mr Halbherr argued that although the determination may have issued on 18 July, he did not receive notice until some days later. He maintained that the appeal period should run from when he received it. The second respondent, Stephen McCann, supported the Board’s position.
The judge accepted the Board’s submissions. He held that section 123(8) tied the deadline to the date the determination was issued and did not use wording that would bring the Interpretation Act 2005 provision on postal service into play. The court therefore did not treat receipt of the letter as starting the appeal period.
The notice of motion grounding the appeal was filed on 14 August, a week after the deadline. An affidavit on Mr Halbherr’s behalf had been filed on 8 August, but the judgment noted that it was not clear how or in what circumstances it had been filed before the notice of motion. The judge said the appeal was out of time even if it were treated as having commenced on the affidavit filing date.
The court also noted that the 2004 Act contained no provision allowing it to extend the appeal period. It dismissed the appeal on that preliminary procedural issue; the judgment did not determine the underlying tenancy dispute.