Kopas v Celermajer Holdings Pty Ltd [2012] NSWCA 146

Kopas v Celermajer Holdings Pty Ltd [2012] NSWCA 146

The requested six-month extension was rejected, but fairness justified one further limited indulgence because Dr Kopas had only become eligible for social housing after the appeal ended, it would not have been fair to require him to withdraw an appeal that was not hopeless, and the respondent's accepted prejudice was limited to the rental difference. The stay was therefore extended only to 22 June 2012 and made conditional on prompt payment of rent, with costs ordered against the applicant.

Jurisdiction
Australia
Judgment Date
07 May 2012
Procedural Posture
Application by Notice of Motion for a Further Stay of an Order Granting Possession of Leased Premises / Court of Appeal Procedural Ruling After Leave to Appeal Had Been Granted But the Appeal Dismissed
Outcome
Application allowed in part; the stay was extended to 22 June 2012 on conditions, and the applicant was ordered to pay the respondents' costs of the notice of motion.
Legal Topics
['stay of Order for Possession' 'writ of Possession' 'alternative Accommodation' 'housing Assistance' 'costs']
['practice and Procedure' 'landlord and Tenant'] ['stay of Order for Possession' 'writ of Possession' 'alternative Accommodation' 'housing Assistance' 'costs']

Case Brief

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Procedural Posture

Application by Notice of Motion for a Further Stay of an Order Granting Possession of Leased Premises / Court of Appeal Procedural Ruling After Leave to Appeal Had Been Granted But the Appeal Dismissed

Legal Issues

  1. 1 ['Whether Order 3 made by the Court of Appeal on 29 March 2012 staying the order granting possession should be stayed for a further six months or until further order.' 'Whether, in the alternative, the stay should be extended for a further period reflecting the ninety days referred to by the primary judge.' 'Whether the hardship to Dr Kopas and his family in finding suitable accommodation outweighed the prejudice to the respondent landlord.']

Ratio Decidendi

The requested six-month extension was rejected, but fairness justified one further limited indulgence because Dr Kopas had only become eligible for social housing after the appeal ended, it would not have been fair to require him to withdraw an appeal that was not hopeless, and the respondent's accepted prejudice was limited to the rental difference. The stay was therefore extended only to 22 June 2012 and made conditional on prompt payment of rent, with costs ordered against the applicant.

Court Disposition

Application allowed in part; the stay was extended to 22 June 2012 on conditions, and the applicant was ordered to pay the respondents' costs of the notice of motion.

Orders

  • ['Order 3 made by the Court of Appeal on 29 March 2012 is extended up to and including 22 June 2012 conditional upon prompt payment by Dr Kopas on the due date of rental in the sum of $270 per week and that in the event that there is a breach of that condition a writ of possession may issue forthwith.' "The...