Kopas v Celermajer Holdings Pty Ltd [2012] NSWCA 53

Kopas v Celermajer Holdings Pty Ltd [2012] NSWCA 53

Leave to appeal was refused as no error was shown; the proceedings were not under the 1948 Act and s98A had no application; the judge was correct in excluding the affidavit as irrelevant and of low probative weight; re-opening principles were properly applied.

Jurisdiction
Australia
Judgment Date
29 March 2012
Procedural Posture
Application for Leave to Appeal and Cross Appeal in Tenancy Dispute / Court of Appeal Decision
Outcome
Application for leave to appeal dismissed with costs; application for leave to cross appeal dismissed with no order as to costs; stay of order for possession extended 42 days; respondent may issue writ of possession on or after 43rd day.
Legal Topics
['affidavit Evidence Exclusion' 're Opening After Judgment' 'application of Landlord and Tenant (amendment) Act 1948' 'vacant Possession' 'leave to Appeal']
['landlord and Tenant' 'evidence' 'procedure'] ['affidavit Evidence Exclusion' 're Opening After Judgment' 'application of Landlord and Tenant (amendment) Act 1948' 'vacant Possession' 'leave to Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Cross Appeal in Tenancy Dispute / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether the primary judge erred in re-opening and varying judgment' 'Correctness of interpretation/application of Barilla v James regarding the lease exemption under the 1948 Act' 'Whether the judge was correct to refuse affidavit evidence of Aldis Birzulis on question of vacant possession']

Ratio Decidendi

Leave to appeal was refused as no error was shown; the proceedings were not under the 1948 Act and s98A had no application; the judge was correct in excluding the affidavit as irrelevant and of low probative weight; re-opening principles were properly applied.

Court Disposition

Application for leave to appeal dismissed with costs; application for leave to cross appeal dismissed with no order as to costs; stay of order for possession extended 42 days; respondent may issue writ of possession on or after 43rd day.

Orders

  • ['Application for leave to appeal dismissed with costs.' 'Application for leave to cross appeal dismissed with no order as to costs.' 'Extend present stay of order giving possession to respondent for 42 days from date of reasons; respondent liberty to issue writ of possession on or after 43rd day.']