Celermajer Holdings Pty Ltd v Kopas

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.