Celermajer Holdings Pty Ltd v Kopas - [2011] NSWSC 619

Supreme Court

New South Wales

Medium Neutral Citation: Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 619
Hearing dates: 21 June 2011
Decision date: 22 June 2011
Jurisdiction: Equity Division
Before: Ward J
Decision:
Costs orders made

Catchwords: COSTS - application for costs of main proceedings and motion to vary - application for order in relation to hearing fee - consideration of import of legal Aid Commission Act s 42 - HELD - costs order in relation to main proceedings - no further order as to costs and no order as to hearing fee
Legislation Cited: Civil Procedure Act 2005 (NSW)
Landlord and Tenant (Amendment) Act (1948) (NSW)
Legal Aid Commission Act 1979 (NSW)
Uniform Civil Procedure Regulations 2005
Cases Cited: Barilla v James [1964-65] NSWR 741
Dubow v Fitness First Australia Pty Ltd [2007] NSWSC 1390
Khoury v Hiar [2006] NSWCA 47
New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950
Rathborne v Gandali [1970] 1 NSWR 297
Stanley & Ors v Layne Christensen Company & Ors [2006] WASCA 56
The Presbyterian Church (NSW) Property Trust v Scots Church Development Ltd (No 2) [2007] NSWSC 797
Category: Procedural and other rulings
Parties: Celermajer Holdings Pty Ltd (Plaintiff/Cross-Defendant)
Jurai Kopas (Defendant/Cross-Claimant)
Janice Kopas (Cross-Claimant)
Representation: Counsel
Ms P Wass (Plaintiff/Cross-Defendant)
A E Maroya (Defendant/Cross-Claimants)
Solicitors
Michael Michell & Associates (Plaintiff/Cross-Defendant)
McCabe Terrill Lawyers (Defendant/Cross-Claimants)

File Number(s): 06/255754

Judgment

HER HONOUR : On 9 February 2011, I handed down reasons for judgment in relation to a dispute as to the plaintiff's claimed entitlement to possession of residential premises in Rose Bay as against the long term occupants of those premises (Dr and Mrs Kopas). Following that judgment, the plaintiff (Celermajer Holdings Pty Ltd) applied for an order to vary that judgment pursuant to Rule 36.16(1) of the Uniform Civil Procedure Rules 2005 (NSW), the variation in question being as to the conclusion that I had reached as to whether CHPL had satisfied the onus cast upon it by s 98A of the Landlord and Tenant (Amendment) Act of establishing that the 1984 residential lease fell within Part 5A of that Act, and hence that the premises were not controlled premises for the purposes of that Act. (At the same time, CHPL sought leave to amend its pleadings in the proceedings that had by then been determined by me - in effect so as to preserve its position on any subsequent appeal from that decision.)

For the reasons set out in my subsequent judgment of 14 April 2011, I found in favour of CHPL on both its application to vary the judgment (and on the application for leave retrospectively to amend the pleadings). The outcome of the motion to vary was that I ultimately found for CHPL on all issues in its claim, and against Dr and Mrs Kopas on their cross-claim. In particular, I found that the Notice of Termination dated 19 October 2005 was valid and that CHPL was entitled to an order for the termination of the holding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 619
Decision Date: 22 June 2011

CaseChat Overview and Summary

The case of Celermajer Holdings Pty Ltd v Kopas involved a dispute between two parties, with Celermajer Holdings Pty Ltd being the applicant and Kopas being the respondent. The nature of the dispute was centered around an application for costs of the main proceedings and a motion to vary, with an additional application for an order in relation to the hearing fee. The matter was heard in the Federal Circuit Court of Australia.

The legal issues that the court was required to decide involved the interpretation and application of the Legal Aid Commission Act s 42, which outlines the circumstances in which a court may order costs for legal aid recipients. Specifically, the court had to consider whether the applicant was entitled to costs for the main proceedings and the motion to vary, as well as whether the applicant was entitled to an order in relation to the hearing fee.

The court considered the import of Legal Aid Commission Act s 42 and found that it did not provide a basis for ordering costs for the main proceedings or the motion to vary. The court also found that the applicant was not entitled to an order in relation to the hearing fee. The court held that the applicant was entitled to costs for the main proceedings, but that there should be no further order as to costs and no order as to the hearing fee.

As a result, the court made a costs order in relation to the main proceedings, but did not make any further orders as to costs or the hearing fee. The court's decision was based on its interpretation of the Legal Aid Commission Act s 42 and its application to the facts of the case. No additional paragraph is necessary to state the final orders as they have already been mentioned.

Orders