Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304

Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304

The judgment was varied on the basis that the previous misapprehension of law regarding Barilla v James led to error: the lease certificate and clause 20 of the 1970 lease provide prima facie evidence, and in the absence of countervailing evidence, the plaintiff satisfied its onus under s 98A of the Landlord and Tenant (Amendment) Act 1948 (NSW). Consequently, the premises were not controlled premises and Dr Kopas was not a protected tenant; the plaintiff was entitled to possession and the Notice of Termination was valid. Leave to amend pleadings was granted to align with the case as conducted.

Jurisdiction
Australia
Judgment Date
14 April 2011
Procedural Posture
Notice of Motion (application to Re Open and Vary Judgment/amend Pleadings) / Post Judgment (application to Re Open and Vary Judgment and Amend Pleadings)
Outcome
Judgment varied; orders made for applicant's (plaintiff's) entitlement to possession and amendment of pleadings; hearing on costs deferred.
Legal Topics
['application to Re Open and Vary Judgment' 'protected Tenancy and Possession Under Landlord and Tenant (amendment) Act 1948 (nsw)' 'amendment of Pleadings' 'satisfaction of Onus Under S 98 A' 'effect of Barilla V James [1964] NSWR 741 on Evidentiary Onus and Statutory Interpretation']
['practice and Procedure' 'landlord and Tenant' 'equity'] ['application to Re Open and Vary Judgment' 'protected Tenancy and Possession Under Landlord and Tenant (amendment) Act 1948 (nsw)' 'amendment of Pleadings' 'satisfaction of Onus Under S 98 A' 'effect of Barilla V James [1964] NSWR 741 on Evidentiary Onus and Statutory Interpretation']

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Procedural Posture

Notice of Motion (application to Re Open and Vary Judgment/amend Pleadings) / Post Judgment (application to Re Open and Vary Judgment and Amend Pleadings)

Legal Issues

  1. 1 ['Whether the judgment should be varied for misapprehension of law regarding evidentiary value of lease certificate and effect of Barilla v James [1964] NSWR 741' 'Whether the onus under s 98A of the Landlord and Tenant (Amendment) Act 1948 (NSW) was satisfied by the plaintiff' 'Whether leave should be granted to amend pleadings to conform to the case as opened and conducted']

Ratio Decidendi

The judgment was varied on the basis that the previous misapprehension of law regarding Barilla v James led to error: the lease certificate and clause 20 of the 1970 lease provide prima facie evidence, and in the absence of countervailing evidence, the plaintiff satisfied its onus under s 98A of the Landlord and Tenant (Amendment) Act 1948 (NSW). Consequently, the premises were not controlled premises and Dr Kopas was not a protected tenant; the plaintiff was entitled to possession and the Notice of Termination was valid. Leave to amend pleadings was granted to align with the case as conducted.

Court Disposition

Judgment varied; orders made for applicant's (plaintiff's) entitlement to possession and amendment of pleadings; hearing on costs deferred.

Orders

  • ['A declaration that Dr Kopas is the only tenant of the premises described in Schedule A.' "A declaration that Dr Kopas' tenancy is a common law periodic tenancy on the terms of the holding-over provisions of the 1984 residential lease." 'A declaration that Parts 2-5 of the Landlord and Tenant (Amendment) Act 1984...