Davy Fitzgerald's sister's appeal over house he owns 'without merit' says judge

Michael McAleer

An appeal by Waterford hurling manager Davy Fitzgerald's sister over whether she has a tenancy of a house he owns has been described as "without any merit whatsoever", a judge has said.

Mr Justice Brian O'Moore made the comment when he dismissed an appeal brought by Helen Fitzgerald as part of a dispute between her brother, herself, a finance firm and a receiver over the house at Sixmilebridge in Clare where Ms Fitzgerald has resided for several years.

Her brother owns the property but, as of August 2022, just over €280,000 was owed by him to Pepper Finance Ireland DAC. Pepper and a receiver it appointed sought a repossession order from the court, so it can be sold to recover what it is owed.

But Ms Fitzgerald says she is a tenant of the property and says her tenancy can only be lawfully ended by the service of a valid notice of termination.

She claims that no such notice has been served on her and has made a referral to the Residential Tenancies Board (RTB). She says the repossession should not happen until this matter has been determined.

Pepper disputes her tenancy claims.

She brought a High Court application seeking an adjournment of Pepper's repossession proceedings until the tenancy issue is decided by the RTB.

The High Court dismissed the application saying the RTB does not have jurisdiction to determine exclusively the question of jurisdictional fact as to whether a valid tenancy ever existed.

That decision rests with the court.

Ms Fitzgerald appealed the decision on a number of grounds. Pepper and the receiver opposed the appeal.

On Friday, Mr Justice Brian O'Moore, on behalf of the three-judge Court of Appeal, said it was "an appeal without any merit whatsoever."

The judge noted that Ms Fitzgerald had accepted before the CoA that the High Court has jurisdiction to decide whether or not she was entitled to occupy the property as tenant and that the RTB cannot itself determine whether or not a tenancy exists.

Once the question of the respective jurisdictions of the High Court and the RTB were isolated and decided, the application to adjourn the repossession proceedings “made no sense”, he said.

It would have been been open to Ms. Fitzgerald and her team to challenge the important finding by the High Court on the jurisdictional issue but they did not do so, he said.

"Instead, a bundle of unstateable propositions were advanced, some of which were mutually inconsistent and none of which could survive the basic fact that it was indisputably open to the High Court in the current proceedings to decide whether or not Ms. Fitzgerald enjoyed the tenancy which she claims", he said.

He had no hesitation in dismissing the appeal and his provisional view was that Pepper and the receiver were entitled to their costs.