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27 2004

Residential Tenancies Act 2004

Chapter 9

Determination orders and enforcement generally

Determination orders.

121. —(1) Each of the following—

(a) an agreement mentioned in a report of a mediator under section 95 (4),

(b) a determination mentioned in a report of an adjudicator under section 99 ,

(c) a determination of the Tribunal notified to the Board under section 108 ,

(d) a direction given by an adjudicator or the Tribunal under section 82 (5) or 117,

shall be the subject of a written record (in this Act referred to as a “determination order”) prepared by the Board and issued by it to the parties concerned.

(2) A determination order shall contain the terms of the agreement, determination or direction concerned; those terms may be expressed in the order in a manner different from the manner in which they are expressed in the agreement, determination or direction if the Board considers it appropriate to do so for the purpose mentioned in subsection (3).

(3) That purpose is to remove any ambiguity that the Board considers exists in the terms of the agreement, determination or direction or to clarify, generally, those terms in a manner that it considers will be of benefit to the parties or will facilitate compliance with the agreement, determination or direction.

(4) In considering whether it is appropriate to exercise the power under subsection (2) with respect to the terms of a particular agreement or determination referred to in paragraph (a) or (b) of subsection (1), the Board shall have regard to—

(a) in the case of such an agreement, the relevant document furnished to it under section 95 (6),

(b) in the case of such a determination, the relevant report of the adjudicator furnished to it under section 99 (2).

(5) In the case of doubt as to whether it is appropriate to exercise that power the Board may also consult with, as appropriate, the mediator, the adjudicator or the Tribunal and with the parties themselves.

(6) The seal of the Board shall be affixed to a determination order.

(7) Subsection (1) is, in the case of an agreement to which paragraph (a) of that subsection applies, subject to subsections (4) and (5) of section 96 .

(8) The reference in subsection (1)(b) to a determination mentioned in a report of an adjudicator under section 99 does not include a reference to such a determination against which an appeal has been made under, and in accordance with, section 100 unless that appeal has been subsequently abandoned.

Provision to ensure consistency between determinations.

122. —(1) If, on consideration of a determination of the Tribunal, the Board is of opinion that the determination is not consistent with previous determinations of the Tribunal in relation to disputes of a similar nature to the dispute concerned then the Board may exercise the powers under subsection (2).

(2) Those powers are—

(a) to notify the members of the Tribunal who made the determination concerned of that opinion and request each of them to submit any views he or she has in relation to the matter to the Board,

(b) having had regard to the views, if any, submitted by those members to it, pursuant to that request, to notify the parties to the dispute concerned of that opinion and request each of them to indicate whether he or she consents to a fresh determination being made pursuant to paragraph (c) by the Tribunal in relation to the dispute or wishes to make representations to the Board in relation to the matter,

(c) if the parties consent to such a fresh determination being made or the Board, having had regard to the representations, if any, made to it by one or more of them pursuant to the request under paragraph (b), considers it appropriate to direct the Tribunal to do so, to direct the Tribunal to make a fresh determination in relation to the dispute.

(3) The making of any such fresh determination shall be preceded by a re-hearing of the matter by the Tribunal and the provisions of Chapters 5 to 7 shall apply accordingly.

(4) For the purposes of subsection (1), one dispute is of a similar nature to another dispute if the issues involved in each of them are the same and the facts that gave rise to each of them, as appearing from any record kept by the Tribunal in relation to its proceedings or any other record available to the Board, are the same in all material respects.

Binding nature of determination orders.

123. —(1) A determination order embodying the terms of an agreement mentioned in a mediator's report under section 95 (4) or the determination of an adjudicator under section 97 shall become binding on the parties concerned on the order being issued to them.

(2) A determination order embodying the terms of a determination of the Tribunal shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made under subsection (3).

(3) Any of the parties concerned 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.

(4) The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive.

(5) The High Court may, as a consequence of the determination it so makes, direct the Board to cancel the determination order concerned or to vary it in such manner as the Court specifies and the Board shall cancel or vary the order accordingly; if the cancellation or variation directed to be made relates to a determination of the Tribunal not to deal with the dispute in accordance with section 85 , the Board shall, in addition, refer all or part, as appropriate, of the dispute to the Tribunal for determination by the Tribunal and the provisions of this Part shall, with any necessary modifications, apply to that determination.

(6) References in section 124 to a determination order shall, where that order embodies the terms of a determination of the Tribunal, be construed as references to—

(a) such an order as respects which an appeal against the determination embodied in it has not been made under this section within the relevant period or, if such appeal has been brought, it has been abandoned, or

(b) if such an appeal has been brought (and the result of the appeal does not require the Board to cancel the order under subsection (5)), as the case may be—

(i) such an order in the terms as it was originally made, or

(ii) such an order in the terms as it stands following the variation of it by the Board under subsection (5).

(7) The Board may publish, in such manner as it thinks fit—

(a) a determination order issued by it (including such an order as it stands varied by it under subsection (5)),

(b) notice of the cancellation of such an order under subsection (5) or section 125 .

(8) In this section “relevant period” means the period of 21 days beginning on the date that the determination order concerned is issued to the parties.

Enforcement of determination orders.

124. —(1) If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the Circuit Court for an order under subsection (2).

(2) On such an application and subject to section 125 , the Circuit Court shall make an order directing the party concerned (the “respondent”) to comply with the term or terms concerned if it is satisfied that the respondent has failed to comply with that term or those terms, unless—

(a) it considers there are substantial reasons (related to one or more of the matters mentioned in subsection (3)) for not making an order under this subsection, or

(b) the respondent shows to the satisfaction of the court that one of the matters specified in subsection (3) applies in relation to the determination order.

(3) The matters mentioned in subsection (2) are—

(a) a requirement of procedural fairness was not complied with in the relevant proceedings under this Part,

(b) a material consideration was not taken account of in those proceedings or account was taken in those proceedings of a consideration that was not material,

(c) a manifestly erroneous decision in relation to a legal issue was made in those proceedings,

(d) the determination made by the adjudicator or the Tribunal, as the case may be, on the evidence before the adjudicator or Tribunal, was manifestly erroneous.

(4) If, on the hearing of an application under this section, it appears by credible testimony that there is reason to believe the respondent will be unable to pay the costs of the applicant of so much of the hearing as relates to the determination of whether any of the matters specified in subsection (3) have been established by the respondent (in the event that none of them is established) the court may require sufficient security to be given for those costs.

(5) If the determination order, the subject of an application under this section, is one requiring a dwelling to be vacated and—

(a) the basis for that requirement is that the tenancy concerned was validly terminated by service of a notice of termination, and

(b) that notice was served by reason of the tenant's failure to pay an amount of rent due,

the court may, before hearing any arguments or receiving any evidence in relation to whether any of the matters specified in subsection (3) have been established, require the respondent to lodge in court or pay to the applicant, as it thinks appropriate, that amount of rent together with such amount as it specifies in respect of the dwelling's continued occupation by the respondent after the service of that notice.

(6) If the applicant under this section is not the Board, the respondent shall give notice to the Board that he or she proposes to oppose the application and the Board shall be entitled to appear and be heard at the hearing of the application.

(7) The court may make such ancillary or other orders as it considers just on the hearing of an application under this section.

(8) The Board may furnish to the registrar of the court such information derived from the register as, in its opinion, is likely to assist in the execution of an order made by the court under subsection (2) (including, if the court gives a direction authorising the Board to give that number to the registrar, the personal public service number of any party concerned).

(9) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the tenancy or dwelling concerned is or was situated.

Cancellation of determination order in cases of nonappearance.

125. —(1) A person who establishes to the satisfaction of—

(a) the Board, or

(b) if the determination order is the subject of an application under section 124 , the Circuit Court, on the hearing of that application,

that, in relation to a determination order embodying the terms of a determination of the Tribunal or an adjudicator, there are good and substantial reasons for his or her having failed to appear at the relevant hearing conducted by the Tribunal or the adjudicator, the Board or the Circuit Court may, subject to subsection (3), exercise the powers referred to in subsection (2).

(2) The powers mentioned in subsection (1) are to cancel the determination order and direct that a fresh determination of the matter shall be made by the adjudicator or the Tribunal as appropriate (and the making of any such fresh determination shall be preceded by a re-hearing of the matter by the adjudicator or the Tribunal and the provisions of Chapters 4 to 7 shall apply accordingly).

(3) The Board or the Circuit Court, as the case may be, may direct that that cancellation shall not have effect unless specified conditions are, within a specified period, complied with by the person referred to in subsection (1) (being conditions analogous to the terms the High Court may impose under the Rules of the Superior Courts (S.I. No. 15 of 1986) for setting aside a judgment obtained in circumstances where one of the parties did not appear at the trial concerned).

(4) Without prejudice to subsection (3), if it is sought to oppose an application under section 124 on the grounds that the determination order ought to be cancelled under this section, subsections (4) and (5) of section 124 shall apply as if references to the determination of, or evidence in relation to, whether any of the matters specified in subsection (3) of that section have been established include references to the determination of, or evidence in relation to, the issue as to whether the grounds for the court's exercising its powers under this section have been established.

(5) The Board, before deciding whether to exercise the powers under this section, shall afford the other party or parties concerned an opportunity to be heard.

(6) The reference in subsection (3) to the Rules of the Superior Courts is a reference to those Rules as amended for the time being; if those Rules should be revoked then the reference to them in that subsection shall be read as a reference to such rules corresponding to those Rules as may be for the time being in force.

Offence for failure to comply with determination order.

126. —(1) A person who fails to comply with one or more terms of a determination order is guilty of an offence.

(2) Subsection (1) has effect notwithstanding the means provided under section 124 for enforcement of a determination order.

(3) A person convicted of an offence under this section shall not be sentenced to any term of imprisonment in respect of that offence if he or she shows that the failure to comply with the term or terms concerned was due to his or her limited financial means.