Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40

Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40

Dr and Mrs Kopas did not establish an enforceable equitable life tenancy or the existence of an agreement in 1992 or 2000. The plaintiff proved the premises were not controlled under the Landlord and Tenant (Amendment) Act 1948 (NSW). The tenancy was a periodic monthly tenancy at common law, terminable under the Residential Tenancies Act 1987 (NSW), and the notice of termination was valid. The caveat is to be removed, and plaintiff is entitled to possession, with orders stayed for 90 days to allow relocation.

Parties
Plaintiff/cross Defendant: Celermajer Holdings Pty Ltd; Defendant/cross Claimant: Jurai Kopas; Cross Claimant: Janice Kopas
Jurisdiction
Australia
Judgment Date
09 February 2011
Procedural Posture
Civil / Principal Judgment After Trial
Outcome
Plaintiff successful on all claims; cross-claim dismissed.
Legal Topics
Periodic Tenancy, Equitable Tenancy, Protected Tenancy Legislation, Statutory Interpretation, Notices of Termination, Caveats, Specific Performance, Damages for Breach of Contract
Property Law Equity Landlord and Tenant Periodic Tenancy Equitable Tenancy Protected Tenancy Legislation Statutory Interpretation Notices of Termination +3 more

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Parties

Celermajer Holdings Pty Ltd

Plaintiff/cross Defendant

Jurai Kopas

Defendant/cross Claimant

Janice Kopas

Cross Claimant

Procedural Posture

Civil / Principal Judgment After Trial

Legal Issues

  1. 1 Whether the defendants held an equitable life tenancy in the premises
  2. 2 Whether the premises were controlled premises and Dr Kopas a protected tenant under the Landlord and Tenant (Amendment) Act 1948 (NSW)
  3. 3 Whether there was a binding agreement in 1992 or 2000 for a life tenancy

Ratio Decidendi

Dr and Mrs Kopas did not establish an enforceable equitable life tenancy or the existence of an agreement in 1992 or 2000. The plaintiff proved the premises were not controlled under the Landlord and Tenant (Amendment) Act 1948 (NSW). The tenancy was a periodic monthly tenancy at common law, terminable under the Residential Tenancies Act 1987 (NSW), and the notice of termination was valid. The caveat is to be removed, and plaintiff is entitled to possession, with orders stayed for 90 days to allow relocation.

Court Disposition

Plaintiff successful on all claims; cross-claim dismissed.

Orders

  • Declaration Dr Kopas is the only tenant of the premises in Schedule A.
  • Declaration tenancy is a common law periodic tenancy on terms of 1984 residential lease.