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Celermajer Holdings Pty Ltd v Kopas

Celermajer Holdings Pty Ltd v Kopas

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Case Copied 9 February 2011 78 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40
Hearing dates: 2-5, 9 & 10 August 2010
Decision date: 09 February 2011
Jurisdiction: Equity Division
Before: Ward J
Decision:
Declaration that no equitable life tenancy and order for removal of caveat. As revised, orders for termination of tenancy and possession.

Catchwords: LANDLORD AND TENANT - whether owner of residential premises is entitled to possession as against the long term occupants of those premises - whether the defendants have an equitable life tenancy of the premises - HELD - no equitable life tenancy - the nature of the defendants' tenancy of the premises - whether the premises are controlled premises, and the tenant a 'protected tenant', under the operation of the Landlord and Tenant (Amendment) Act 1948 (NSW) - HELD - the first defendant is the sole tenant pursuant to a periodic monthly tenancy at common law on the terms of a previous holding-over tenancy - as revised, the plaintiff has established that the premises are not controlled premises and that the tenant is not a 'protected tenant' under the Landlord and Tenant (Amendment) Act 1948 (NSW) - notice of termination valid under the Residential Tenancies Act 1987 (NSW) - plaintiff entitled to possession
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Landlord and Tenant (Amendment) Act 1948 (NSW)
Limitation Act 1969 (NSW)
Residential Tenancies Act 1987 (NSW)
Residential Tenancies Act 2010 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules (Part 14.14)
Cases Cited:
Abrahams v Senes & Berger [1963] NSWR 1073
Adavale Realty Pty Ltd v Williams, Glenn & Ors. [1996] NSWRT 190
Angaston & District Hospital v Thamm (1987) 47 SASR 177
Baltic Shipping Co v Dillon (1993) 176 CLR 344
Barilla v James [1964-65] NSWR 741
Borambil Pty Ltd v O'Carroll [1972] 2 NSWLR 302
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Chan v Cresdon (1989) 168 CLR 242
De Bussche v Alt (1878) 8 Ch D 286
Di Salvio v Manthorpe [1965] NSWR 360
Duke Group Ltd (in liq) v Alamain Investments Ltd [2003] SASC 415
Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218
Ex parte Stern; Re Harrington [1965] NSWR 93
Firth v Staines [1897] 2 QB 70
Fitzgerald v Masters (1956) 95 CLR 420
Freeman and Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 1 All ER 630
Greco v Swinburne Ltd [1991] 1 VR 304
Hancock v B W Brazier (Anerley) Ltd [1966] 2 All ER 901
Harrisons and Crossfield Ltd v London and Northwestern Railway Co [1917] 2 KB 755
Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503
Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810
Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited [2008] NSWCA 206
May v Ceedive Pty Ltd [2006] NSWSCA 369
Kassem v Crossley & Anor; Kassem v Krayem & Anor [2000] NSWCA 276
Knox County…

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 40
Decision Date: 09 February 2011

CaseChat Overview and Summary

Celermajer Holdings Pty Ltd sued Kopas for possession of residential premises. The defendants, who had been occupying the premises for an extended period, contested the plaintiff's claim, arguing they had an equitable life tenancy of the premises. The court was required to determine whether the defendants possessed an equitable life tenancy and whether the premises were subject to the Landlord and Tenant (Amendment) Act 1948 (NSW). Additionally, the court had to ascertain the nature of the defendants' tenancy and whether they qualified as protected tenants under the act.

The court found that the defendants did not have an equitable life tenancy. It ruled that the first defendant was the sole tenant under a periodic monthly tenancy at common law, following a previous holding-over tenancy. The court further determined that the premises were not controlled premises and that the tenant was not a protected tenant under the relevant act. Consequently, the notice of termination issued by the plaintiff was valid under the Residential Tenancies Act 1987 (NSW). Therefore, the court concluded that the plaintiff was entitled to possession of the premises.

No further orders were made by the court beyond establishing the plaintiff's entitlement to possession. The court's decision hinged on the nature of the tenancy and the applicability of the relevant statutory provisions.

Orders