Celermajer Holdings Pty Ltd v Kopas - [2011] NSWSC 304

Supreme Court

New South Wales

Medium Neutral Citation: Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304
Hearing dates: 30 March 2011
Decision date: 14 April 2011
Jurisdiction: Equity Division
Before: Ward J
Decision:
Leave to re-open and vary judgment and leave to amend pleadings to reflect case as opened and conducted by plaintiff.

Catchwords: PRACTICE AND PROCEDURE - application to re-open and vary judgment pursuant to Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) - alleged misapprehension of law going to evidence permissible to satisfy onus under s 98A of the Landlord and Tenant (Amendment) Act 1948 (NSW) - alleged misapprehension of effect of Barilla v James [1964] NSWR 741 - application for leave to amend pleading - HELD - motion to re-open and vary granted on basis of misapprehension of effect of Barilla v James - onus satisfied by evidence contained in earlier registered lease - premises are not controlled premises and tenant is not a 'protected tenant' under Part 5A - plaintiff entitled to possession - leave to amend pleading granted
Legislation Cited: Civil Procedure Act 2005 (NSW)
Landlord and Tenant (Amendment) Act 1948 (NSW)
Residential Tenancies Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abrahams v Senes and Berger [1963] NSWR 1073
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Australian Securities Commission v Fairlie [1993] TASSC 69; 11 ACLC 669; ACLC 694
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Barilla v James [1964] NSWR 741
Brand v Monks [2010] NSWSC 313
Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506
Clough and Rogers v Frog (1974) 4 ALR 615
Compagnie Noga Case [2001] 3 All ER 513
Ex parte Stern; Re Harrington [1965] NSWR 93
Form-Quip Ltd v Trafalgar Properties Ltd (unreported, NSWSC, 19 July 1991).
Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666
Manche v Bigazzi (1963) 80 WN (NSW) 1681
Manufacturers Mutual Insurance Ltd v Motor Accidents Authority of NSW (1991) 7 ANZ Ins Cas 61-090
May v Ceedive [2006] NSWCA 369
Mutual Shipping v Bayshore Shipping Co Ltd (The Montan) [1985] 1 All ER 520
New Cap Reinsurance Corporation Ltd v Grant [2009] NSWSC 950
Newmont Yandal Operations Pty Limited v the J Aron Corporation and the Goldman Sachs Group, Inc and 3 Ors [2007] NSWCA 195
O'Brien v Bolton [1961] NSWR 760
Paul's Retail Pty Ltd v Morgan [2009] NSWSC 1343
Rathborne v Gandali [1970] 1 NSWR 297
Roddy v Perry (No. 2) (1958) SR (NSW) 41
State Rail Authority v Codelfa Construction Pty Ltd (1982) 150 CLR 29
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446
Twenty-First Australia Inc v Shade (unreported, 31 July 1998)
Vines v Djordjevitch (1955) 91 CLR 512
Walsh v Suranyi [1963] NSWR 88
Wentworth v Rogers (No 9) (1987) 8 NSWLR 388
Wentworth v Rogers [2002] NSWSC 921
Wentworth v Wentworth [1999] NSWSC 638
Wilson v Walshe (unreported 31 May 1985, Smart J)
Texts…

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 304
Decision Date: 14 April 2011

CaseChat Overview and Summary

Celermajer Holdings Pty Ltd filed an application against Kopas, the tenant, seeking to re-open and vary a previous judgment that was made pursuant to Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). The original judgment had been rendered in the context of an eviction proceeding, and the tenant now sought to challenge that decision on the basis of an alleged misapprehension of law regarding the evidence permissible to satisfy the onus under section 98A of the Landlord and Tenant (Amendment) Act 1948 (NSW). The tenant also sought leave to amend the pleadings to reflect the new evidence.

The court was required to decide whether the application was valid under Rule 36.16, and if so, whether there was a misapprehension of law that went to the evidence. Specifically, the tenant argued that the original judgment had incorrectly interpreted the effect of the case of Barilla v James [1964] NSWR 741. The court had to determine whether the tenant's interpretation was correct and whether it amounted to a misapprehension of law that would warrant re-opening and varying the original judgment.

The court found that the tenant's interpretation of Barilla v James was correct, and that the original judgment had indeed misapprehended the effect of that case. The court held that the tenant had satisfied the onus under section 98A of the Act by providing evidence contained in the earlier registered lease. The court also found that the premises were not controlled premises and that the tenant was not a 'protected tenant' under Part 5A, and therefore, the plaintiff was entitled to possession. The court granted leave to amend the pleadings to reflect the new evidence, and re-opened and varied the original judgment accordingly.

The court ordered that the judgment be re-opened and varied to reflect the new evidence, and that leave be granted to amend the pleadings. The court further ordered that the premises were not controlled premises and that the tenant was not a 'protected tenant' under Part 5A. The court also ordered that the plaintiff was entitled to possession of the premises.

Orders