Celermajer Holdings Pty Ltd v Kopas

[2011] NSWSC 40

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 v Ninth National Bank (1893) 147 US 91 Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 Lindsay Petroleum Company v Hurd, Farewell & Kemp (1874) LR 5 PC 221 Macquarie Developments Pty Ltd and Anor v Forrester [2005] NSWSC 674 Maryska v Mason [2007] NSWSC 1222 McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 Miller v Cannon Hill Estates Ltd [1931] 2 KB 113 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Morison v London County Westminster Bank Ltd [1914] 3 KB 356 Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 Natural Gas & Oil Corporation v Byrne & Boyle (1951) 68 WN (NSW) 207 Orr v Ford (1989) 167 CLR 316 Parker v Taswell (1858) 2 De G & J 559; 44 ER 1106 Petersen v Moloney (1951) 84 CLR 91 Prints for Pleasure Ltd v Oswald-Sealy (Overseas) Ltd [1968] 3 NSWR 761 Roads & Traffic Authority v Swain (1997) 41 NSWLR 452 Seamez v Mclaughlin [1999] NSWSC 9 Tobin v Melrose [1951] SASR 139 Travel Compensation Fund v Blair [2003] NSWSC 720 Watson v Delaney (1991) 22 NSWLR 358 Watson v Foxman (1995) 49 NSWLR 315 Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100 Whitlock v Brew (1968) 118 CLR 445 Williams v Carew [1964-5] NSWR 1715 Wilson v Walshe (unreported 31 May 1985)
Texts Cited:	Equitable Damages, Butterworths 1994 Fry on Specific Performance (6th ed.) Meagher, Gummow and Lehane (4th ed.) Megarry's The Law of Real Property, 3rd ed. On Equity, Young, Croft and Smith
Category:	Principal judgment
Parties:	Celermajer Holdings Pty Ltd (Plaintiff/Cross-Defendant) Jurai Kopas (Defendant/Cross-Claimant) Janice Kopas (Cross-Claimant)
Representation:	Counsel: J E Marshall SC with P M Sibtain (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

1. HER HONOUR : These proceedings involve a dispute as to whether the plaintiff, Celermajer Holdings Pty Ltd ( CHPL ), the owner of residential premises in Rose Bay, is entitled to possession as against the long term occupants of those premises (Dr and Mrs Kopas), following service in October 2005 on Dr Kopas of a Notice of Termination of Residential Tenancy Agreement. The premises in question comprise a two bedroom unit in a block of four units each of which is owned by CHPL.

1. The Kopas family (Dr and Mrs Kopas and their son David) has occupied the unit in question (Unit 3) since January 1984. Dr Kopas entered into a Residential Tenancy Agreement for a six month term on or about 6 January 1984. On the expiry of that original term, Dr Kopas continued in possession of the premises with the consent of CHPL thus giving rise to a monthly holding over tenancy pursuant to the terms of the lease. CHPL has, on various occasions since 1992, commenced steps to bring to an end the tenancy of Unit 3 and/or to obtain possession of the premises (but until the present application has not persisted with such a course). For their part, Dr and Mrs Kopas have staunchly resisted any attempts at termination of their occupancy of the premises.

1. Dr and Mrs Kopas resist CHPL's claim in the current proceedings principally on the basis of an alleged equitable life tenancy of the premises. In the alternative, they contend that the premises are "controlled" premises (and that Dr Kopas is a protected tenant) for the purposes of the Landlord and Tenant (Amendment) Act 1948 (NSW) (to which I will refer by way of shorthand as the Landlord and Tenant (Amendment) Act ). They also allege breach of the alleged agreement pursuant to which they say the equitable life tenancy arose and of a subsequent agreement said to have been reached in 2000 in relation to the premises. Damages are claimed on various bases, including damages for breach of contract by reason of alleged interference with the quiet enjoyment of the premises by the issue of various notices of termination over the years and/or damages for the value of the alleged life tenancy (in lieu of specific performance).

1. The genesis of the current proceedings was the service on Dr Jurai Kopas of a Notice of Termination dated 19 October 2005 requiring vacant possession of the premises on 28 November 2005. That Notice was expressed to be issued under s 56 of the Residential Tenancies Act 1987 (NSW) (to which I will refer by way of shorthand as the Residential Tenancies Act ). (Although the Residential Tenancies Act has recently been repealed and the Residential Tenancies Act 2010 (NSW) has come into operation, pursuant to the transitional provisions of the 2010 Act the former Act continues to apply in relation to any application made to the Tribunal under the former Act and not finally determined before the commencement of those provisions, as it does in relation to any termination notice given before the repeal of the former Act or other action or proceedings commenced before that repeal, relating to the termination of an existing residential tenancy - Schedule 2 cll 5 & 6.)

1. The stated ground for termination of the residential tenancy agreement was the sale of the premises to Celegroup Pty Limited, which I understand to be related to or part of the same group of companies as CHPL. On 30 November 2005, CHPL applied to the Consumer Trader and Tenancy Tribunal (to which, in both its current and former emanations, I will refer as the Tribunal) for an order terminating the 1984 residential tenancy lease.

1. Dr and Mrs Kopas then lodged a caveat on the title, claiming an equitable interest under a life tenancy created by an agreement in 1992. On Dr Kopas' application, the proceedings in the Tribunal were transferred by consent to this Court in January 2006, where the matter was ordered to proceed by way of pleadings. After various iterations, the relevant pleadings comprise an Amended Statement of Claim filed by CHPL on 15 July 2008, to which Dr Kopas filed a defence on 15 December 2008 and a Further Amended Defence on 27 May 2009, and CHPL's reply filed on 7 August 2009), on the one hand; and, on the other hand, a Further Amended Statement of Cross-Claim filed by Dr and Mrs Kopas on 27 May 2009, to which CHPL filed a defence on 7 August 2009.

1. Unfortunately, there was no little delay in the matter progressing to a hearing, not least because for some period Dr and Mrs Kopas were not represented by lawyers and the conduct of the matter was undertaken by their son who is not legally qualified and was not familiar with court processes. David Kopas, on behalf of his parents, sought (and obtained) a vacation of the initial hearing dates fixed for hearing to commence on 4 May 2009 on the basis that he had not appreciated the tasks necessary to prepare the matter for hearing when earlier consenting to directions made in that regard. Counsel subsequently briefed for Dr and Mrs Kopas (Mr Maroya) sought and obtained leave to file the Further Amended Defence and Cross-claim and to file further affidavits from Dr and Mrs Kopas (to address the fact that much of their evidence was in inadmissible form, and, as Mr Maroya conceded, would be liable to be struck out if left as it was). I mention this aspect of the matter as the leave given to file further affidavit evidence at that stage of the proceedings was on the basis that, other than as provided for in the directions then given, no further affidavit evidence in support of the further amended defence and cross-claim was to be served without leave. (Objection was later taken on behalf of CHPL at the hearing to the attempted reliance by Dr and Mrs Kopas on affidavit evidence other than in accordance with those directions.)

1. While a variety of issues were raised in the pleadings, broadly speaking the principal issues in dispute (on which CHPL's claimed entitlement to possession of the premises turns) at the hearing were as follows:

(i) the existence or otherwise of an alleged agreement in 1992 pursuant to which Dr and Mrs Kopas contend they have been granted a fixed term tenancy (that fixed term being said by them to extend beyond their respective lives for a period of 90 days from the death of the last of them, though it was acknowledged by Mr Maroya during the hearing that there would be a difficulty in the lease subsisting beyond the lives of either of the individual tenants and this was referred to simply as a mechanism provision) (the 1992 Agreement allegation);

(ii) the basis of the Kopas' current occupation of the premises in the event that no binding agreement for a life tenancy is found to have been made in 1992;

(iii) whether the premises are controlled premises, and Dr Kopas a protected tenant, under the operation of the Landlord and Tenant (Amendment) Act (the Protected Tenancy allegation);

(iv) the existence or otherwise of the alleged 2000 Agreement (the 2000 Agreement allegation); and

(v) the respective claims for relief: by CHPL (for declaratory relief/removal of caveat/termination of whatever tenancy is found to be on foot and an order for possession of the premises) and by Dr and Mrs Kopas (for specific performance of the alleged 1992 Agreement or damages in lieu of specific performance; for damages for alleged breach of the 1992 and 2000 Agreements; and for exemplary damages).

1. Issues such as whether, if the 1992 Agreement was reached, it was too uncertain to be enforceable and as to the authority of CHPL's real estate agent to enter into such an agreement, as well as the formal validity of the notice of termination, need to be considered in determining the above. There is also a claim for damages for misleading and deceptive conduct in relation to entry into the 1992 and 2000 Agreements but it was accepted that this turns largely on the findings in relation to the issues in (i) and (iv) above. The validity of the termination notice issued in October 2005 turns on the determination of issues (i) - (iii) above.

1. In summary, CHPL seeks a variety of declaratory relief, the effect of which is to sustain its claims that the only tenant is Dr Kopas himself (ie, that he is not in occupation pursuant to a joint tenancy with his wife) and that his tenancy is a holding over tenancy pursuant to the holding over provisions of the initial 1984 residential lease; that the 1984 lease did not operate under Parts 2-5 of the Landlord and Tenant (Amendment) Act and that the premises are not prescribed or controlled premises under that Act; that Dr and Mrs Kopas do not have an equitable life tenancy of the premises; that there was no agreement reached in 1992 or 2000, as alleged; and that the 2005 Notice validly terminated the tenancy. CHPL seeks orders that the caveat lodged by Dr and Mrs Kopas on the title be removed and for possession of the premises (or, in the alternative a declaration as to its entitlement to terminate the lease and for possession of the premises).

1. By their Further Amended Statement of Cross Claim, Dr and Mrs Kopas seek declaratory relief to the opposite effect, namely as to their claimed entitlement to an equitable life tenancy, and for consequential relief or further or in the alternative a declaration that the premises are 'controlled premises' and that Dr Kopas is a 'protected tenant'; and orders for the specific performance of the 1992 Agreement by execution of a lease in registrable form and further or in the alternative an order for damages representing the value of their equitable life tenancy, and/or for damages for breach of covenant and exemplary damages in an amount to be assessed by the court.

1. As I understand it, Dr and Mrs Kopas contend that even if the alleged 1992 Agreement is not established, the holding over tenancy based on the 1984 residential tenancy agreement was terminated by the Tribunal in April 1992 and thereafter any periodic tenancy arising at common law was one to which Mrs Kopas was a party (and a protected tenancy under the Landlord and Tenant (Amendment) Act or, alternatively, a residential tenancy under the Residential Tenancies Act ).

1. If, contrary to CHPL's principal position, CHPL's then property manager (Mr Wellner) and Dr and Mrs Kopas are found to have reached an agreement in terms of the alleged 1992 Agreement, CHPL raises a number of defences to the claims made by Dr and Mrs Kopas in relation to that agreement, namely that Mr Wellner had no actual or ostensible authority to bind CHPL to that agreement (and there was no ratification by CHPL of the agreement); a limitation defence (raised in paragraphs 15 and 24(c) of the Defence to the Further Amended Statement of Cross-claim); laches and delay; and that the alleged 1992 Agreement is not amenable to specific performance.

Summary

1. For the reasons set out below:

(i) I am not satisfied that a binding agreement was reached between Mr Wellner and Dr and Mrs Kopas on the terms of the alleged 1992 Agreement. (Had I been satisfied that there was an agreement reached on 29 April 1992 on the matters recorded in the 3 page handwritten document of that date, I would have held that the agreement failed for uncertainty as to the rent payable over the term of the agreement. While I am satisfied that Mr Wellner did not have actual authority to bind CHPL to a life tenancy agreement, I consider it likely that he had ostensible authority to do so. (Had there been a lack of ostensible authority, I would not have accepted that there was any ratification by CHPL of such an agreement.) In the event, I find that Dr and Mrs Kopas have not established an equitable life tenancy in the premises as contended (and hence the caveat claiming such an interest should be removed from the title to the premises).

(ii) the occupation of the premises by Dr Kopas from the expiry of the initial term of the 1984 residential lease was pursuant to a holding over tenancy from month to month up until 23 April 1992; thereafter his occupation has been pursuant to a common law monthly periodic tenancy, on the terms of that earlier holding over tenancy, by reference to an implied agreement reached on 29 April 1992 for the reinstatement of the tenancy which had earlier been terminated by the Tribunal's orders on 16 April 1992; the sole tenant at all relevant times has been Dr Kopas;

(iii) (following the revision of this judgment and the findings made in my reasons for judgment on CHPL's motion to vary), CHPL has established that, as at the time of the entry by Dr Kopas into the 1984 lease, the premises were not controlled premises under the operation of the Landlord and Tenant (Amendment) Act and hence has established that Dr Kopas was not a protected tenant under that Act (and therefore the provisions of the Residential Tenancies Act govern the residential tenancy agreement for these premises);

(iv) I am not satisfied that a binding agreement was reached between CHPL's real estate agent and Dr and Mrs Kopas on the terms of the alleged 2000 Agreement; and

(v) as to CHPL's claims for relief, it is entitled to the declarations sought in respect of the tenancy of the premises and to an order for the removal of the caveat lodged on the title, it is further entitled to an order for possession of the premises (on the basis that the October 2005 notice of termination was a valid notice of termination under the Residential Tenancies Act). I consider it appropriate in the circumstances of the case to order possession of the premises to be given on a date 90 days from the date of this judgment in order to allow Dr and Mrs Kopas a reasonable period of time to secure alternative accommodation;

as to the claims for relief made by Dr and Mrs Kopas, having regard to the above findings, the claims based on the existence of both the alleged 1992 Agreement and the alleged 2000 Agreement must necessarily fail, as does the claim for damages for misleading and deceptive conduct. (Had I found that there was an enforceable agreement in terms of the 1992 Agreement binding on CHPL, then although such an agreement would in my view have been amenable to an order for specific performance by ordering the execution of a lease in registrable form but omitting the various clauses that were, in effect, conceded to be penal in operation, I would have declined to grant such relief on the ground of laches. I would also have found that no compensable damage had been sustained as a result of the repudiation by CHPL of any agreement in the terms of the 1992 agreement and would have made no order for damages for breach of the agreement or for exemplary damages; nor would I have granted any additional relief on the misleading or deceptive conduct claim.)

Jurisdictional Issue

1. Before turning to the factual background to this matter (which spans a considerable period), I deal first with the jurisdictional issue raised by Dr and Mrs Kopas. By paragraph 31 of the Further Amended Defence, Dr and Mrs Kopas deny that CHPL is entitled to the relief claimed, or at all, by reason of s 71 of the Residential Tenancies Act . In paragraph 27 of the Further Amended Statement of Cross-Claim, Dr and Mrs Kopas plead that, in circumstances where CHPL places reliance upon the Residential Tenancies Act as the basis of the entitlement to relief claimed in its Amended Statement of Claim, CHPL should have continued its application in the Tribunal, which it is said is the proper forum for CHPL's claim.

1. As noted in the brief introduction earlier, the application by CHPL for orders for termination of the residential lease and for possession of the premises was initially brought in the Tribunal. There, as in these proceedings, Dr Kopas raised the alleged 1992 Agreement as invalidating the termination notice. The application to transfer the proceedings to this Court was made by notice of motion filed by Dr Kopas seeking such an order pursuant to s 23 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). The order for transfer of the proceedings was ultimately made by consent. There is no suggestion that Dr Kopas foreshadowed at the time that if the proceedings were transferred he would seek to rely on s 71 as a defence to CHPL's claim. In those circumstances, there is considerable force in CHPL's submission that it hardly behoves Dr Kopas now to complain that the proper forum for CHPL's claim was the very forum from which he sought (successfully) to have the proceedings transferred to this Court. Senior Counsel for CHPL, Mr Marshall SC, appearing with Ms Sibtain, submits that the process by which the proceedings were transferred to this Court ought to be viewed as a waiver of such a defence and that Dr Kopas is estopped from raising this defence.

1. Section 71 of the Residential Tenancies Act provides:

No proceedings in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement shall be commenced by a landlord against a tenant or former tenant of the landlord.

1. In Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100, Kirby P (as his Honour then was), with whom Sheller JA agreed, held that s 71 of the Act creates a defence to proceedings brought contrary to the terms of the section but should not be read as denying jurisdiction to this Court. It is submitted for CHPL that any such defence is inapplicable where the proceedings were first commenced in the Tribunal and only later transferred to this Court (on Dr Kopas' own application).

1. It is submitted that this Court has the power to make the orders sought by CHPL under both s 64 of the Residential Tenancies Act and in its plenary jurisdiction under s 23 of the Supreme Court Act 1970 (NSW). As to the former, it is submitted that the reference to "the Tribunal" in s 64 can be taken to be this Court when proceedings have been transferred to it by the Tribunal itself (s 3(1) providing that "tribunal" is to be taken as a reference to the Tribunal "except in so far as the context or subject-matter otherwise indicates or requires"). Reference is made to ss 72 and 120A of the Residential Tenancies Act , as supporting the notion that this Court has power to entertain applications of the present kind.

1. It is not suggested that this Court does not have jurisdiction to determine the matters pleaded in the Further Amended Statement of Cross-Claim relating to the alleged equitable life tenancy referable to the agreement that Dr and Mrs Kopas contend was reached in 1992, though that is an agreement which it is contended also amounts to a residential tenancy agreement pursuant to s 13 of the Act. Whether reliance can be placed by Dr and Mrs Kopas on s 71, therefore, goes only to the claim for possession. Reference was made in this regard by Mr Marshall to Maryska v Mason [2007] NSWSC 1222.

1. In Maryska , the plaintiff had a right of occupation pursuant to an oral residential tenancy agreement, as defined under the Act. An issue raised in the proceedings before Palmer J was whether this Court should make an order for vacant possession when the Tribunal had exclusive jurisdiction. Palmer J was of the view that where proceedings could not have been commenced in this Court to recover vacant possession from the tenant, this Court should not make an order for vacant possession pursuant to a cross claim improperly commenced in this Court. (I interpose to note that his Honour seems there to have been speaking in terms of the exercise of a discretion to make such an order, not suggesting that there was no jurisdiction to do so.) Nevertheless, although his Honour was of the view that vacant possession should be sought in the Tribunal, he noted that his judgment would establish that, as between the parties, there was no estate or interest in the premises other than a tenancy determinable according to law. His Honour declined to make orders for vacant possession but did order the removal of the caveat in that case.

1. In the present case, the proceedings were in fact commenced by CHPL in the Tribunal and it was Dr Kopas who sought the transfer of the Tribunal proceedings to this Court (without any suggestion that if CHPL consented thereto he would then deny the jurisdiction of this Court to deal with its claim), which then proceeded on pleadings. CHPL did not improperly commence proceedings in this Court. Rather, it consented to the transfer of its Tribunal claim to this Court. I consider that it is not open to Dr Kopas now to assert that this Court is not an appropriate forum for the determination of the present claims and that Dr Kopas is estopped from relying on any defence that would otherwise be available under s 71 of the Residential Tenancies Act .

1. Had I considered otherwise, it would have been still have been open for me to determine the remaining issues in the case (in particular, the claimed entitlement to an equitable life tenancy, on which the maintenance of the caveat rests).

1. Prolongation of the litigious disputes between the parties, in circumstances where Dr Kopas by his conduct has elected to have the tenancy issues determined in this Court, does not seem to me to be consistent with the just, quick and cheap resolution of the real issues in dispute in this Court. As I am satisfied that there is jurisdiction to deal with all of the claims for relief, and there has been a contested hearing over a number of days on those claims, I consider it appropriate now to determine all of those issues.

Facts

• Entry into initial agreement in 1984

1. As noted earlier, by a standard form residential tenancy agreement dated 6 January 1984, CHPL granted to Dr Jurai Kopas a six-month lease of the premises in question, commencing from 9 January 1984, at a rental of $186 per fortnight; rent being payable in advance on the first day of each fortnight. A rental bond of $372 was lodged. D r Kopas, his wife Janice Kopas and their son David Kopas have lived in the unit since 1984.

1. There is no dispute that the initial residential tenancy agreement was in Dr Kopas' name alone (Mrs Kopas confirming in the witness box that her husband had always "handled all that sort of thing" - T 14.46; see also T143.13; T 149.24; T 149.45 - and not suggesting that prior to 1984 she was jointly entitled as a matter of law to the tenancy of the premises).

1. The Residential Tenancy Agreement (which appeared to be in the form of a standard or pro forma agreement) was signed on behalf of CHPL by Mr Alex Wellner (a real estate or property management agent acting on behalf of CHPL). Mr Wellner gave evidence and was cross-examined in these proceedings. (The execution by Mr Wellner of the initial agreement lends support to the allegation that he had ostensible authority to bund CHPL to entry into tenancy arrangements in relation to the property.)

1. The principal of CHPL at the relevant time(s), Mrs Christine Celermajer, developed health problems (specifically, she was diagnosed with Parkinson's disease) from about 1991. Mrs Celemajer has progressive dementia and is in a nursing home. It was not disputed that as at the time of the hearing she was unable to give evidence as to the events of 1992 and had been unable to do so for some time due to her significant cognitive impairment. No adverse inference can be drawn from her failure to give evidence.

1. The 1984 residential tenancy agreement contained a standard form holding over clause, providing that if the landlord permitted the tenant to continue to occupy the premises after the expiration of the lease term then the lease continued as a periodic lease from month to month being terminable as provided under clause 19(ii) of the agreement by one month's written notice. (There was no reference in the agreement to any matters of the kind referred to in section 5A of the Landlord and Tenant (Amendment) Act .) There seems no dispute but that, from the expiry of the initial six-month term in July 1984, at least until the events in April 1992 to which I will come shortly, Dr Kopas' occupancy of the premises was as sole tenant under the holding over provisions of the initial residential tenancy agreement.

1. The 1984 residential tenancy agreement contained a special condition prohibiting the tenant from keeping an animal or bird in the premises or on the common area without the written consent of the landlord, a provision of some relevance since the keeping of dogs in the premises became a point of some contention between the parties in this case.

• 1991 CPHL agency agreement with Raine & Horne

1. In 1991, Mr Wellner changed real estate agencies, from S P Hilton & Co (the previous real estate agents acting for CHPL) to the principals trading as Raine & Horne, Bondi Beach real estate agency. A Management Agency Agreement was entered into between CHPL and that agency in 1991. Relevantly, that agreement, dated 27 February 1991, authorised the letting of properties on behalf of CHPL on 6 month terms (which, in the absence of evidence of any subsequent amendment to the authority so given, supports Mr Wellner's claim that he had no actual authority to grant a (potentially far longer) life tenancy on CHPL's behalf just over 13 months later).

• From notice of termination - March 1992

1. On 2 March 1992, a Notice of Termination of Residential Tenancy Agreement was issued (and addressed solely) to Dr Kopas, requiring vacant possession of the premises by 20 March 1992. It was signed by Mr Wellner on behalf of CHPL. The Notice raised two grounds of termination: first, "having 2 dogs inside the premises" and, secondly, that rent had not been paid for 14 days (although, as in my copy it appeared that a line was drawn through items 2-5 of the copy Notice in evidence, it is perhaps unclear whether reliance was in fact being placed on the second ground).

1. As to the keeping of pet dogs inside the unit, or in the common area of the building, while this seems to have been a point of some contention between the parties from around 1992 onwards (Dr and Mrs Kopas contending that they had kept pet dogs at the premises since about 1989 in reliance upon oral permission to do so by CHPL's then real estate agent), its only relevance for present purposes is insofar as it is submitted that this was permitted as a term of the (disputed) 1992 Agreement.

1. As to the alleged arrears of rent, while it is suggested that CHPL's subsequent application to the Tribunal is inconsistent with 14 days' rent being owing as at 2 March 1992 (since the application lodged on 2 April 1992 referred to rent paid up to 24 February 1992), it is not disputed that at some stage leading up to April 1992 Dr Kopas had withheld rent for the premises (Dr Kopas suggesting that there were arrears of some 10 weeks). (Given that rent was payable in advance, logically if rent had been paid up to that date as the end of a fortnightly period, then rent would have been again due on that date as the start of the next fortnight - hence as at 29 April 1992 there could well have been about 10 weeks' rent due if, as the 2 April application asserted, no payment had been made from 24 February 1992.)

1. In the witness box, Dr Kopas accepted that the rent had been withheld because of his complaint as to the state of the apartment block's roof, which he said had been leaking for six and a half years. Dr Kopas said that he had made complaints for some time as to the roof leaking (and, indeed, Mr Wellner, in the witness box, accepted that complaints had been made in relation to the roof by other tenants and said that the problem was with missing ridge-capping), though there was no record kept of any such complaint by Dr Kopas prior to 1992 (T 54). (Nor was there any record of the Council order Dr Kopas said had been made for the replacement of the roof, which he raised in an application to the Tribunal around this time.)

1. The withholding of rent by Dr Kopas from around March 1992 seems likely to have been precipitated by storms in the eastern suburbs of Sydney around that time that were said to have been of some severity. Although Dr Kopas was vague as to the date of the severe storms in his suburb - in cross-examination putting the occurrence of a severe storm as being in 1989, he did not deny that there had been storms over the years and he said that each storm had exacerbated the problem with the roof. There was an insurance claim referable to the roof (based as I understand it on storm damage) made around mid 1992, (Dr Kopas having referred to such a claim before the Tribunal, having gone so far as to assert to the Tribunal that it had been a fraudulent claim).

1. Dr Kopas gave contradictory evidence as to what advice he had obtained in 1992 from a tenancy advisory service as to the withholding of rent in light of the roof problems. At first, in the witness box, he accepted that he had been advised by "the tenancy advisory services" that he should not have withheld the rent - T 57.26 (that evidence being consistent with what he had said in his far more contemporaneous application to the Tribunal around April 1992). Logically, such advice could only have been given after he had withheld rent (it being retrospective in substance). However, Dr Kopas later denied in the witness box that he had ever received advice that he was not allowed to withhold the rent (T 79.48) and gave evidence that he had instead received advice from the tenancy advisory services that he should not pay the rent but should retain it in a separate account pending repairs to the roof (T 79). (The possibility that he had received conflicting advice on separate occasions, which could have explained this inconsistency in his oral evidence, is not maintainable in light of his insistence that he had only once received advice from tenancy advisory services or somebody in Redfern in relation to this issue.)

1. Whatever advice Dr Kopas was given at the time, it is not disputed that he did withhold rent in mid 1992 and it seems likely that he did so because of his complaint that the roof needed to be repaired (or replaced). Dr Kopas, in the witness box, gave evidence of a conversation with Mr Wellner in which Dr Kopas said that he had told Mr Wellner "I'm withholding the rent. You repair me the roof, I'll pay the rent" - T 55) although he also said that he could not remember why he had stopped paying the rent (T 68) and (at T 67) referred to a telephone call with Mr Wellner in which Dr Kopas said he was not sure whether he had said he withheld the rent or had threatened to do so.

1. Following the issue of the March 1992 Notice of Termination, on 3 April 1992 an application dated 2 April 1992 was filed by Mr Wellner on behalf of CHPL with the Residential Tenancies Tribunal (the precursor to the CTTT) (application RT 92-4440), in which orders were sought "to end the residential tenancy agreement and return possession to the owner" and for payment of "compensation of $1,110 in place of missing rent since 24/2/92" and for "compensation of $370 relating to prevention of letting [another unit] in the same building". The form signed by Mr Wellner included the statement that rent was only paid until 24 February 1992. That application was listed for hearing on 16 April 1992. Notice of the hearing date was sent to Dr Kopas on 7 April 1992.

• Tribunal orders 16 April 1992

1. There was no attendance by or on behalf of Dr Kopas at the Tribunal on 16 April 1992 (apparently due to ill-health on the part of Dr Kopas). In his absence, adverse orders were made. Relevantly, those orders were for the termination of the residential tenancy agreement and for possession to be given to CHPL on 23 April 1992 (together with an order for payment by Dr Kopas of the sum of $1,559.28 immediately as arrears of rent to that date and rent up to 23 April 1992). The precise form of the orders is not in evidence - rather, what is in evidence is a copy of the letter dated 21 April 1992 by which the Tribunal advised Dr Kopas of the making of orders, the first paragraph of which read:

1. Order for termination & possession: The tenancy agreement is terminated and possession is to be given to the landlord on 23/4/92.

1. The making of these orders is of significance both when considering the context in which it is said that the alleged 1992 Agreement was reached and in determining the status of the tenancy thereafter (if no agreement in terms of the 1992 Agreement is ultimately found to have been made).

1. It is also significant that, on the making of those orders, it might be thought (and Dr Kopas himself seems to have accepted - T 82)) that CHPL had the upper hand (or, to use Dr Kopas' words in the witness box "had the cards in his hand" T 82) in any negotiations for the continued occupation of the premises by Dr Kopas and his family. However, Dr and Mrs Kopas suggest (inconsistent with that evidence) that there was some anxiety or concern on the part of Mr Wellner (or the principal of CHPL, Mrs Christine Celemajer) to negotiate with them to resolve the dispute with the Kopas family at that stage (and Dr Kopas maintained that in those negotiations Mr Wellner had had to give him 'something' - T 82).

1. As noted, there was no attendance at the Tribunal on 16 April 1992 by or on behalf of Dr Kopas when the orders for termination of the lease and for possession of the premises were made. Dr Kopas apparently received advice from the Tribunal of the making of the orders by the letter dated 21 April 1992 received by him on 23 April 1992 (according to the application he filed a day later on 24 April 1992).

• Dr Kopas' 24 April 1992 Tribunal application

1. No doubt precipitated by that communication, on 24 April 1992 Dr Kopas filed an application in the Tribunal (RT 92-5320), seeking an order for the payment to him of the sum of $16,900 as "compensation" in relation to the roof of the building, and an order to vary or set aside the "existing" orders of the Tribunal made in proceedings RT 92-4440 on 16 April 1992.

1. The reasons stated for the application were, first, that the roof had been leaking for six and a half years (and it was said, though there was no evidence other than Dr Kopas' assertion that this was the case, that the inspector for health and building in Waverly Council "is putting an order against the landlord") and, secondly, that Dr Kopas had not attended the hearing because of health reasons and that his wife had been told to present a letter of explanation with a medical certificate, which she had then done. The application also contained the statement (in Dr Kopas' handwriting), consistent with the evidence he gave the first day of his cross-examination but from which he resiled the following day, that "I was explained today at the Tenancy Advisory Services about my rights and duties and I understand that I withheld payment incorrectly and that offsetting payments against compensation can be ordered only by the Tribunal. Due to my state of mind I could not think about what action to take and how to go about it and I ask for the Tribunal indulgence on this point". (In the witness box, Dr Kopas rather surprisingly said he did not know what "indulgence" meant in this context - T 59 - it appeared to me that his reluctance to accede to the proposition that he had sought an indulgence was due to him being wary of any admission he might thereby be making if this were to be adverse to his case.)

1. The significance of the issue as to whether Dr Kopas was aware, as at 23 April 1992 or thereabouts, that he would or might not have been legally entitled to withhold rent due to a problem with the roof, on CHPL's case, is that it is said that if this was his understanding then it is inconsistent with clause C(1) of the alleged 1992 Agreement (which provided that it was a breach of the agreement if rent was not paid for 90 days "without just cause") - and that Dr Kopas, having realised this, was therefore seeking to distance himself from such an understanding (hence the change in his evidence on that topic).

1. The flavour of the cross-examination in this regard emerges from the following extracts. First, at T 57-58:

Q. You see, what happened is on the 24th you went to the Tenancy Advisory Service to discuss your position as a result of having received that notice dated 21 April, you had received it the previous day on the Thursday, that's what happened, isn't it?

A. I don't recollect at the moment.

Q. You got some advice from them which told you that you had done the wrong thing, isn't that true?

A. Well, I got advice that I should not have withheld the rent.

Q. Exactly, you were told that you should not have done it?

A. I should not have withheld the rent, that's right.

Q. At that point, you knew you were in trouble, didn't you?

A. Of course I was in trouble . (my emphasis)

1. The following day Dr Kopas said (at T 79.33), inconsistently with what he had said both in his 24 April application to the Tribunal and in the evidence extracted above, in the context of questions as to what would be "just cause" to withhold the rent under the alleged 1992 agreement (to which he gave the roof as an example):

Q. You had been told by the tenancy advisory service that you were not entitled to withhold rent because of a claim about the roof?

A. The tenancy advisory services, you mentioned it yesterday, I don't really pick it up because I don't remember ever writing it. The only record that I have or memory that I have that before I withheld rent I spoke with somebody - I spoke with few people or somebody who was official, somebody from Redfern, I don't know exactly what it was, but this is the one that said to me "Withhold the rent and put the money aside, put the money aside. Don't spend the money and the guarantee that they will repair - do the repairs" and this is the bad advice that I got. I don't remember any word that I spoke about tenancy advisory services but if it is then please show me what it was.

Q. What you have just said is directly inconsistent to what you said yesterday?

A. It might be inconsistent but as I say, that's yesterday was yesterday and you spoke about tenancy services right yesterday and I remember it and as far as I am concerned the only thing that could have been a tenancy services I spoke was in Redfern. I never got advice from a tenancy services not- that I am not allowed to withhold the rent . (my emphasis)

1. When asked if the (contrary) statement in his application of 24 April was true or false, Dr Kopas said he did not remember and could not "relate to memory of stuff that I don't remember". It was then suggested to him, but he did not accept, that the fact that he was aware as at 29 April of the inability to withhold rent for a roof claim caused a problem for him in maintaining the 1992 agreement because of an alleged inconsistency with clause (C)(1) of the handwritten document. In that regard, as I understand it, the perceived inconsistency arises insofar as clause C(1) might be said to contemplate that the tenant will be entitled to withhold rent if there were to be a 'just cause', something that Dr Kopas might by then have understood, at least in relation to matters such as roof problems, would not automatically follow as a matter of legal right.

1. I am not persuaded that there is necessarily an inconsistency - it could simply be that, whatever the relevant legal rights, this agreement was putting in place a different regime. It might also be that this was a layman's attempt at providing for abatement of rent in some situations. What seems to me more of a problem for the status of the alleged agreement is the uncertainty as to what the parties could be said objectively to have contemplated as a 'just cause' which would entitle the withholding of rent. (At this stage, I simply note that Dr Kopas' contradictory evidence on the issue of what advice he had been given back in 1992 as to the withholding of rent suggests that his evidence should be treated with caution, at the very least because of the unreliability of his recollection.)

1. I place more weight on what Dr Kopas' contemporaneous documents say as to the advice he had received than his evidence in the witness box some 18 years later (which may, consciously or otherwise, have been affected by a realisation of what evidence would be likely to assist his case). Had Dr Kopas not understood as at April 1992 that there was a risk he had not been entitled to withhold rent, then the statement in his Tribunal application would have been a surprising concession.

1. Given the statement contained in the April 1992 Tribunal application lodged by Dr Kopas, it is clear that at least by 24 April 1992, and hence before the meeting on 29 April 1992, Dr Kopas had some understanding (whether based on advice received from tenancy advisory services or otherwise and whether or not consistent with any other advice he may have received) to the effect that he may not strictly have been entitled to withhold rent (since his own document records this) and hence was in a position where he might not have a strong legal position upon which to rely at least in relation to his evident desire to remain in occupation of the premises.

• Alleged 27 April 1992 meeting

1. The day on which Dr Kopas filed his application with the Tribunal (24 April 1992) was a Friday. Therefore, it might be assumed that it would be unlikely that notification of the application by the Tribunal to CHPL (if sent by ordinary post, as its letters on their face seem as a matter of course to have been) would have been received by Mr Wellner on behalf of CHPL (and therefore could have been any cause for concern by the landlord) by the following Monday (27 April). Yet it is on that date that it is said by Dr Kopas (paragraph 69 of his affidavit affirmed June 2009) that Mr Wellner came to visit him at the unit and sought a meeting to resolve matters with the landlady. (Mrs Kopas confirmed in the witness box that Mr Wellner had visited the flat on 27 April 1992.)

1. Initially, both Dr and Mrs Kopas (and their son David, though he said in the witness box that he did not take much interest in real estate matters at that time) deposed (in virtually identical terms) that Mr Wellner had come to plead with them to resolve matters, though Dr Kopas' later affidavit (perhaps to remove the basis of an objection as to its admissibility) makes no reference to Mr Wellner 'pleading' with them. Dr Kopas was cross-examined as to whether the later divergence in the accounts given as to this meeting was an attempt to lend verisimilitude to the Kopas family's evidence. He denied that it was. At T 60, there was the following exchange:

Q. At one stage you, your wife and your son all asserted that he [Mr Wellner] came and pleaded with you?

A. Absolutely.

Q. But you no longer say that in your affidavit, do you?

A. I probably don't.

Q. That is one of the instances where there is now a divergence between you, your wife and son in the affidavits?

A. I don't know what my son and my wife wrote in their affidavits regarding this. I don't remember what they wrote . I don't think I am supposed to remember what they wrote . (I emphasise the last sentence in the context of the issue I will consider later as to the import of the substantially identical evidence of the Kopas family prior to the most recent affidavit evidence adduced from them).

1. Mr Wellner denies that he went to the Kopas apartment on that date and denies that he pleaded with Dr and Mrs Kopas, stating in forthright terms that this was not in his nature (T 197.48), an observation consistent with that of his then managing director, Mr Kemeny, and with the impression I formed of Mr Wellner in the witness box. It is also consistent with the state of events at that stage. If, as seems likely, Mr Wellner had not by then received any formal notification from the Tribunal as to the application filed by Dr Kopas on 24 April, then presumably the only matter to be resolved (on CHPL's part) as at 27 April 1992 was when (and how) compliance with the order for possession was to be secured (possession having been ordered by the Tribunal to be provided on 23 April 1992 and, as at 27 April, the Kopas family remaining in occupation of the premises). There would surely be no reason for Mr Wellner to 'plead' with the Kopas family in that event (or for CHPL to be overly anxious as to securing an agreement for vacant possession, when it would have been open to CHPL simply to invoke the procedures for compulsory eviction of the tenant relying upon the Tribunal orders to that effect).

1. Pressed as to the above, Dr Kopas, in the witness box, said for the first time that he had telephoned Mr Wellner and told him about the roof compensation claim. Dr Kopas said that he had told Mr Wellner on 27 April 1992 (in a telephone call "probably Friday maybe Monday" that he intended to pursue compensation in other civil proceedings - T 75). If that is in fact what happened then it is surprising that in the subsequent Tribunal applications and in the various iterations of the Kopas family affidavit evidence there was no mention of the conversation. It seemed to me to have been proffered by Dr Kopas in cross-examination to meet the suggestion that there was no need for Mr Wellner to have visited the apartment (or to have 'pleaded' with them to resolve matters).

1. In the witness box, Mr Wellner was dismissive about the compensation claim (whether that claim was one made in the Tribunal or made elsewhere). He did not appear to me (from my observation of the manner in which he responded to the pressure of questions in the witness box) to be someone likely to be readily alarmed by threats of litigation (and had that been the case it might be thought that steps would have been taken at an earlier stage to repair the roof to avoid any unwelcome confrontation - particularly given Mr Wellner's acknowledgment of other complaints in relation to the roof).

1. The Kopas family recollection that there was a sufficient measure of concern on the part of the landlady (Mrs Celemajer) or Mr Wellner to warrant a personal visit to their apartment (and I can only assume that a visit of this kind was not the standard form of communication given the emphasis the Kopas family seem to placed on it) does not seem objectively likely having regard to either the chronology of events or the experience of Mr Wellner in property matters. (Of course, it may well be Mr Wellner had simply called in (without there being any element of 'pleading'), perhaps as a matter of courtesy, in order to discuss how the premises were to be vacated, and has forgotten over the years that such a meeting had taken place - but that is not the evidence of any of the parties.)

1. Other than as a matter going to credit (or the reliability of the witnesses' recollection of events), nothing turns on whether there was a meeting on 27 April prior to the relevant meeting on 29 April 1992. Insofar as it is relied upon as indicating an anxiety on the part of Mr Wellner (or CHPL) to reach a resolution of the dispute with Dr and Mrs Kopas, it does not seem to me that even if Mr Wellner did come to the flat to arrange a meeting this makes it more likely that at the subsequent meeting Mr Wellner was prepared to make the kinds of concession necessarily involved in an agreement on the terms contained in the 3 page handwritten document.

1. (Insofar as the background to the 1992 application filed by his father is referred to in David Kopas' February 2009 affidavit, I note that in the witness box he disavowed having taken much interest in what was occurring with the real estate agents at that time. Therefore, I can place little weight on his evidence as confirming that of his father in this regard.)

• 29 April 1992 meeting

1. What is not disputed is that on 29 April 1992 Dr and Mrs Kopas met with Mr Wellner at the offices of Raine & Horne. Dr and Mrs Kopas say that it was a lengthy meeting in the afternoon (two or three hours). The reason Dr Kopas says that he recalls it was late in the afternoon was that he and his wife wanted someone should be home by the time that their son (then in year 12) returned home from school (T 70). Mr Wellner denies that the meeting was a lengthy one (and, given the relatively taciturn and dogmatic manner in which Mr Wellner gave evidence, it might be thought unlikely that any such meeting would have lasted for 2 to 3 hours). It was suggested in cross examination of Dr Kopas that the alleged lateness of the meeting was an attempt to explain away the fact that, unlike the one page typed document addressed to the Tribunal, the 3 page handwritten document was not typed in the Raine & Horne offices. He denied this.

1. I am not persuaded that there was a particularly lengthy meeting on 29 April 1992. It does not seem consistent with a busy real estate practice and there is no detailed account of the discussion from which I could form the view that the negotiations had been lengthy. While it does seem likely that the meeting was late in the business day (as Dr and Mrs Kopas say) since a letter to the Tribunal and admittedly typed on that date was post-dated 30 April (presumably to accord with the date it was to be sent to the Tribunal), that does not, however, mean that it is unlikely that there was anyone else in the office who could have assisted in the typing of the handwritten document had he or she been asked to do so.

1. As adverted to above, there is remarkably little detail provided by Dr and Mrs Kopas of the discussion that took place during that (allegedly lengthy) meeting on 29 April 1992. Significantly, there is no account from Dr Kopas or his wife as to any negotiation in relation to any of the terms set out in the handwritten document or any debate back and forth as to those terms, as one might have expected in a lengthy meeting devoted to reaching an agreement on such matters. Dr Kopas, in the witness box, said that he had taken notes during the meeting but that after the agreement was prepared had thrown them away in a garbage bin in the office (T 71). There is no way to test that assertion.

1. Dr Kopas, by the time of this meeting, appears to have been aware that he had not been (or at least there was a question as to whether he had been) entitled to withhold the rent. He took with him to the meeting a considerable sum (in cash and by cheque) to pay most of the arrears (around $1,480, there being two lots of $370 remaining to be paid at the conclusion of the meeting), presumably in anticipation that he would be required to pay the arrears before the landlord would be prepared to consider allowing him to remain in the premises.

1. There is a dispute as to whether the arrears were proffered at the start of the meeting (as Mr Wellner's recollection suggests) or after agreement had been reached as to what was to occur in relation to the tenancy (as Dr Kopas says - and which is said to be consistent with payment of the arrears being in accordance with whatever agreement had by then been reached). There is also a dispute as to whether the arrears were paid to an assistant in the office (as Mr Wellner recalled in the witness box) or to Mr Wellner himself (with he later instructing an assistant to produce a receipt, as Dr Kopas contends). (The significance of the presence or absence of an office assistant at the time, as noted above, goes to the likelihood that an agreement signed by Mr Wellner would not have been typed and/or witnessed by someone else in the office.)

1. Interestingly, the printed receipt issued (headed Trust Tenant Receipt) for the rental arrears payment (on its face a pro forma computer printout) bears the date 29 April 1992, thus suggesting it was printed on that date (which suggests that there was still an assistant in the office when it was printed, since it was not suggested that Mr Wellner had himself printed the receipt). Also of interest is the fact that the tenant is there identified as "Dr J & J Kopas". There is no suggestion that prior to the making of any agreement on that date Mrs Kopas was a tenant (as opposed to an occupant) of the premises. Hence a receipt addressed to her of that date suggests a lack of precision in the records of the agency. (Even if it were the case that the records had been changed on that date, to reflect the new agreement for which Dr and Mrs Kopas contend, that surely could operate only from that date and yet this was a receipt for the preceding period 24 February 1992 to 20 April 1992 in her name.) Therefore, although reliance was placed by Dr and Mrs Kopas on the agency's records to suggest an acknowledgment that Mrs Kopas was indeed a tenant (under the 1992 agreement), I doubt that much weight can be placed on them.

1. Significantly, it seems to be accepted by Dr and Mrs Kopas that, by the time of the meeting on 29 April 1992, they did not trust Mr Wellner. Dr Kopas said that during the meeting his wife had spoken to him in Italian to tell him to be wary of Mr Wellner and Mrs Kopas agreed that that was the case. She agreed that what was of concern to her was whether Mr Wellner would abide by any agreement reached at the meeting. It is not clear why Mrs Kopas considered Mr Wellner to be untrustworthy at that stage - although it is possible that it was due to complaints as to the way the roof problem had been handled up to that point by the agency. However, the fact that Dr and Mrs Kopas did not trust Mr Wellner makes it objectively unlikely, in my view, that they would have been content to accept a copy of an unwitnessed handwritten document (even one signed by Mr Wellner) as the only record in their hands of the agreement they say had been reached for a life tenancy.

1. There is some doubt as to whether, as at the time of the meeting, Dr Kopas was aware that the monetary jurisdiction of the Tribunal was then limited to $5,000 (making his $16,900 compensation claim beyond its monetary jurisdiction). The Tribunal itself did not write to Dr Kopas advising of the limits to its power to order monetary compensation until 8 May 1992. However, in the witness box (again, for the first time) Dr Kopas said (T 74) that he had received three telephone calls from two people at the Tribunal earlier than that advising him of the limit. It rather seemed to me that Dr Kopas was plucking his recollection of telephone calls (with surprising detail as to the number of calls from the Tribunal and of the number of people who made them) somewhat out of the air that could only have been in order to justify the earlier assertion that Mr Wellner had come to the flat on 27 April to plead with him to resolve matters. It is hard to believe that the various conversations that emerged for the first time in the witness box would not previously have found their way into statutory declarations or affidavits of Dr Kopas. Dr Kopas' first affidavit, to the contrary of his oral evidence, suggested that his first contact with Mr Wellner at around this time was the meeting on 27 April (not that there had been any earlier telephone call). (I also note that this evidence was given the day after Dr Kopas said he had been quite disoriented due to his blood pressure and not when he said he had been so affected, hence that cannot be the explanation for the inconsistency - T 75.)

1. I interpose to note that the amount of $16,900 claimed in Dr Kopas' 1992 Tribunal application was said by Dr Kopas to have been calculated by reference to the rent paid over the previous six and a half years when the roof was leaking, although there is no mathematical calculation to show that this is the case. Dr Kopas says that he had supporting documents in relation to his 'roof' claim, which he threw away when the rental bond was reinstated but he seemed there to be referring not to the quantification of the claim but to documents supporting his claim that the roof needed to be repaired or replaced. Dr Kopas maintained in the witness box that he had paid rent for that period for something that he did not get and therefore was entitled to the whole of the rent paid over that period. For his part, Mr Wellner says that he was not concerned about the compensation claim, as he knew the monetary limit to the Tribunal's jurisdiction - and even apart from that he seemed fairly dismissive as to the prospects of Dr Kopas maintaining a claim for recovery of the whole of the rent paid since the commencement of the lease.

1. According to Dr and Mrs Kopas, at the meeting on 29 April they reached an agreement with Mr Wellner which was written down by Dr Kopas and was signed by each of Dr and Mrs Kopas and by Mr Wellner. They also say that Mr Wellner telephoned the 'landlady' (Mrs Celermajer) a number of times during the course of the meeting.

1. As noted earlier, Mrs Celermajer had been diagnosed with Parkinsons disease in 1990 (according to the affidavit read in CHPL's case by her then doctor, Dr O'Sullivan). Mr Wellner denied having telephoned Mrs Celermajer on 29 April 1992 and said (for the first time in the witness box) that his instructions were not to telephone her. Indeed Mr Wellner said that Mrs Celemajer was not physically capable of holding a telephone for conversations at that time. It is not suggested that Dr or Mrs Kopas were privy to any discussions with Mrs Celermajer nor that they heard Mr Wellner talking on the telephone to her. It can have been no more than an assumption on their part that Mr Wellner had telephoned Mrs Celermajer (albeit such an assumption might possibly have been derived from something said to them during the course of the meeting by Mr Wellner). In the face of evidence to suggest that Mrs Celemajer was unwell at the time, then in the absence of anything other than the Kopas' assertion that she had any active input in the discussions on 29 April 1992 (whether or not limited to telephone calls) I think that the evidence of Mr Wellner is more probable on this issue. (The suggestion of inconsistency of Mr Wellner's evidence as to instructions received by a Mr Rutkowsky seemed to me to be explicable by reference to that gentleman having responsibility for decisions in relation to building matters rather than the tenancy generally.)

1. Central to the present dispute is what was the agreement reached by the persons present at the 29 April 1992 meeting. Going into the meeting, the matters seemingly in issue were the existing rental arrears (in respect of which a Tribunal order had already been made), the Kopas' desire to remain in the unit (notwithstanding the order for possession that had been made) and the Kopas' wish to be compensated for the damage caused by the leaking roof (and, if they remained in the unit, for the roof to be repaired or replaced). I have already noted Dr Kopas' evidence to the effect that he had told Mr Wellner "You repair me the roof I'll pay you the rent". There seems no reason, with this being the context in which the discussion took place, to expect that Mr Wellner would have taken it upon himself to offer what could only be seen (in my view) as a remarkable offer - namely a life tenancy - in order to secure an agreement for the roof claim to be dropped (whether or not that claim was understood as going beyond the Tribunal's limit of $5,000), though this seems to be what must have happened if the Kopas' version of events is to be accepted (let alone for him to have offered a life tenancy on the extraordinary terms of the 3 page handwritten document).

1. In that regard, it was the consistent evidence of the real estate agents who were called to give evidence for CHPL that the grant of a life tenancy was something that to them (at least) was very unusual. While Mr Maroya emphasised that the notion of a life tenancy is not unknown, it must also be recognised that it is by no means common where the arrangement is one reached in a commercial rather than domestic or family context (or at least that seems to have been the import of what was said back in 1972 by Jacobs JA when considering the nature of a life tenancy in Borambil Pty Ltd v O'Carroll [1972] 2 NSWLR 302 . There, Jacobs JA referred to the observation in Megarry's The Law of Real Property , 3 rd edn p 621 that, by the middle of the nineteenth century, the practice of granting leases for life had declined (in the context of his Honour's discussion as to there being no distinction in the attributes at common law between a tenant for life under a lease at a rent and a tenant for life under a settlement). Jacobs JA noted that the distinction was that where property was let at a rent for life the letting was properly described as a 'lease for life' but that where no commercial rent was stated it was more usual to refer to the interest for life as a 'life tenancy'.)

1. Therefore, at least by 1972 it seems that there was some judicial and academic recognition that life tenancies, in the sense of leases for life at a commercial rent (which is what the present life tenancy is suggested to be) had declined, so it would hardly be surprising that the real estate agents dealing with Dr and Mrs Kopas would suggest such a thing to be unusual in their own personal experience.

• Alleged 1992 Agreement

1. There is no dispute that agreement was reached between Mr Wellner and Dr and Mrs Kopas as to the one page typed letter sent to the Tribunal (providing for the withdrawal of Dr Kopas' application for compensation and for the rescission of the 16 April orders obtained by CHPL and for the repair of the roof). CHPL maintains that this was the only agreement reached on that day. Dr and Mrs Kopas, on the other hand, contend that the one page typed letter (signed by Mr Wellner and Dr Kopas alone) was part of a 4 page agreement, the remaining 3 pages being comprised of the handwritten document dated 29 April 1992 and bearing the signatures of each of Dr and Mrs Kopas and of Mr Wellner. When pressed as to what had been said in relation to the life tenancy, Dr Kopas said "But all what he said to me, you can stay there until the rest of your lives" - T 78.41.

1. As the alleged 1992 Agreement is central to the dispute (and the terms of the handwritten document are unusual, to say the least, - described by Mr Maroya as being in 'flamboyant language'), I set out below in full (with my emphasis where italicized or emboldened) the transcription provided by CHPL's legal representatives of the handwritten pages:

29.04.1992

As a result of a meeting that was initiated by Alex Wellner (Raine & Horne, Bondi Beach) on behalf and under instruction of Celemajer Holding P/L, the following Agreement/settlement was reached:- This Agreement is the written Part of the Settlement that was reached between Alex Wellner R/H BB as Agent and Celemajer Holding P/L as Proprietor with Dr J & J Kopas (KOPAS) as a result of Tribunal cases No. 92/4440 and No. 92/5320 plus pending litigation in other jurisdiction by Kopas against Proprietor/Agent regarding flat 3 ......... Rose Bay 2029. These cases will be called the "Roof Case". The purpose, intention and spirit of this Agreement/settlement, is to settle this dispute in good faith and to avoid further litigation about this case ("Roof Case"); and hopefully avoid future litigation in general. It is not done as a ruse to weasel out of financial losses and "Have the Cake and eat it" by acting in bad faith in the future. Both parties agree in good faith to abide by this Agreement and the spirit of this agreement.

(A) Kopas agrees to the following:-

(1) Pay Rent arrears owing.

(2) Withdraw action in Tribunal No. 92/5320 concerning "Roof Case"; furthermore withdraws &/or does not initiate further civil action in Court regarding the "Roof Case" - for restitution of all rent paid from 1984 up to today + costs + damages, and forgoes these legal actions completely.

(3) Pay the appropriate rent promptly.

(4) Be responsible for the actions of his 2 dogs within the property, eg cleaning.

(5) Accepts the offer for "the Rest of Kopas's Life" tenancy in flat 3 ....... Rose Bay 2029 .

(B) Proprietor/Agent agrees to the following:

(1) Withdraws action for eviction & penalties in the Tribunal No. 92/4440 "Roof Case" and renounces further actions in this case, and Restores Bond.

(2) Immediate notification in writing to undertake repairs to the flat & replace the roof within 7 days or asap.

(3) Attend all major repairs & maintenance promptly & properly. Not impede with actions or omissions or otherwise the right of Kopas to Access, Use and enjoyment eg - block access, cut utilities etc.

(4) Acknowledge & reaffirms Mrs Sertis's (S.P Hilton) oral permission to have 2 dogs in the flat.

(5) (i) As acknowledgement/recognition for Kopas withdrawing and foregoing on above legal actions specified, Prop/Agent offers to grant Kopas - J & J Kopas - Jointly &/or separately (in case of divorce or death of one Kopas) to Remain [2]

tenants in flat 3 ........ Rose Bay 2029 for the "REST OF THEIR LIVES".

(ii) This "Rest of their Lives" Tenancy remains valid regardless who owns property.

(iii) In case of death of both Kopas, the Prop/Agent commits to NOT ENTER &/or SEIZE Property &/or POSSESSIONS of Kopas, for a period of 90 (ninety) days. In this time, David Kopas &/or Agents for Kopas estate will clear all Kopas's Possession & the lease/tenancy will finally end with Vacant possession. At this point the tenancy ends and DOES NOT pass over to David Kopas or any other heir.

(6) All communication by Prop/Agent to Kopas is to be in writing or to be followed up in writing, otherwise they will be disregarded.

(7) Gives permission to Kopas to change locks and Prop/Agents renounces to have duplicates. Permission to install appropriate security system in the flat. Prop/Agent CANNOT EVER enter the flat without Kopas being present &/or without written consent by Kopas; failure will be considered Break and Enter and will be reported to Police as such.

(C) Breaches and results of Breaches of this Agreement/Settlement.

(1) Failure of Kopas to pay appropriate rent for a consecutive period of 90 (ninety) days, without just Cause. Prop/Agent will then have the right to pursue Kopas for the amount owed in appropriate jurisdiction and pursue termination of lease in the Supreme Court for breach + costs if they so choose.

(2) If Kopas Continues &/or restores abovementioned legal/actions in this "Roof case", for compensation/damages & the like in any jurisdiction (which Kopas renounced), the Prop/Agent can seek termination of lease for breach in the Supreme Court + costs.

(3) Failure of Prop/Agent to accept appropriate rent from Kopas &/or reject rent payments, will be a breach & will imply an offer of free rent -Gratis- for the rest of the tenancy ("Rest of Lives") , which Kopas will Automatically accept however, due warning & notice of 30 (Thirty) days from Kopas to Prop/Agent has to be given in writing stating breach & giving them a chance to Remedy.

(4) (i) Failure by Prop/Agent to replace roof (as per above) is a breach. Failure to maintain the property (the building in general & my flat) to a point that it becomes unliveable, structural damage & the such (like) is a breech. It will give right to Kopas to issue a letter of demand (LOD) for all the rent paid since 1984 to the time of the breach + specified itself (oraly) no matter how many years passed + costs + unspecified substantial damages .

(ii) If Prop/Agent tries to enter/seize Property/Possessions without Permission &/or impedes, blocks Access, use & enjoyment of Flat as mentioned above for eg cutting utilities & the like it will result in Automatic reversal of rent to $93 - (ninety three) x week for the rest of the Tenancy.

(5) If Prop/Agent seeks to invalidate/Renege &/or Terminate the Agreement/Settlement, with deception, trickery, loopholes, technicalities or the like, in any court, it will be deemed "Bad Faith" & "Slight of Hand', and a breach of this agreement and the spirit of this agreement. It will result in a Letter of Demand (LOD) for restitution of all rent paid since 1984 & specified interests (oraly), to the date of the breach, regardless the time passed & costs & unspecified substantial damages. Furthermore the rent will revert to $93 (ninety three) x week, Automatically for the rest of the tenancy.

(6) Any action seeking to terminate the lease and to invalidate/renege this agreement in the Tribunal or like jurisdiction, is a breach, and will result in Automatic reversion of rent to $93. (Ninety three) x week for the rest of the tenancy, if Kopas so wishes.

(7) Failure to pay any letter of Demand (LOD) in case of above specified breaches, will result in legal action being taken by Kopas in the Supreme Court for the amount Stated in the LOD + costs.

(D) When does this lease/tenancy Ends.

(1) When both Kopas dies + 90 (NINETY) days.

(2) Unless otherwise agreed mutually in writing.

(3) In case of breach by Kopas as mentioned above, and subsequent Supreme Court Order to end the lease as a result of the breach.

(4) Unless Kopas decides to end the lease. However in this case, Kopas has to give notice of 13 (Thirteen) Months in writing to the Prop/Agent, unless the Prop/Agent waves this notice in writing.

(E) This Settlement/Agreement is effective immediately from 29.4.92.

In conclusion, both parties agree to abide by this Agreement/Settlement & the spirit of this Agreement in good faith and acknowledge this agreement to be binding Contract Contract. The fundamental part of this agreement are written above, however there is also an oral part , that elaborates aspects of this agreement + minor aspects & details of the Lease/tenancy in general. It is reiterated that neither party to this agreement will seek to circumvent or attempt to annul this agreement for any purpose/reason, as it will signify an ultimate act of bad faith & deception; and as a consequence of such an action, The "Guilty" party will bear the Penalties & liabilities as prescribed in this Agreement and also in Contractual Law .

1. There is no reference in the 3 page handwritten document to the one page letter to be sent to the Tribunal (such as an agreement to send a letter in the form of that to be annexed or attached to the 3 page letter, simply a reference to the withdrawal of the Tribunal actions), nor is the one-page document marked as the fourth page of a document. The one-page document on its face seems to be a stand alone document recording at most an agreement reached by the two parties who had signed the document for steps to be taken in relation to the respective Tribunal applications (and not an agreement between them and a third party not referred to or a signatory to the document).

1. Mr Wellner denies that he signed the handwritten document and denies that this document was provided to him at the meeting in April 1992.

1. Mr Maroya points to various provisions which might be thought to be drafted in favour of the landlord (such as the requirement for lengthy notice by the tenant to vacate the premises and the recognition that it was not simply the landlord that might breach the agreement). However, I find it difficult to accept that this was not in overall terms an agreement decidedly favouring the tenant (and hence one less likely to find favour with a landlord).

1. The fact that the alleged 1992 Agreement refers to the "pending litigation" in another jurisdiction is one of the textual matters to which CHPL points as giving the lie to the document, since it is said that as at the date the agreement is said to have been made there was no pending litigation in another jurisdiction - the only application on foot being the 24 April application which (unbeknownst to Dr Kopas when made, and, depending on whether there had indeed been the telephone calls to which he referred in his oral evidence, also unbeknownst to him at the time of the 29 April meeting) exceeded the jurisdictional limit of the Tribunal. I place no weight on the reference in the handwritten document to "pending" litigation as supporting the inference that the document was not created on that date - because it seems to me (and I concede that I am guilty here of understatement) that the document is not one worded with precision. In this regard, the reference to "pending litigation" in another jurisdiction seems to me equally consistent with Dr Kopas having intended to refer to threatened litigation) as with the document having been prepared at a later date (as CHPL contends). (I note in due course the factors that have led me to conclude that this document does not represent a binding agreement concluded on 29 April 1992, whether or not the notes were in existence at that time.)

1. According to Dr Kopas, Mr Wellner kept the original signed handwritten pages and provided Dr and Mrs Kopas with a copy of the handwritten signed agreement. (As noted earlier, it seems surprisingly trusting of Dr and Mrs Kopas to have left with Mr Wellner the only original copy of the document bearing his original signature - given the evidence as to their lack of trust for him by the time of this meeting.) Also, according to Dr Kopas (but said for the first time in the witness box), Mr Wellner was supposed to have had the handwritten document typed up, though there is no evidence that either Dr or Mrs Kopas later pressed him for a copy of that typed document (as one might have expected, given its significance, had they been promised a typed copy or otherwise expected to receive one).

1. Some weight was placed by Mr Maroya on Mr Wellner's answers in cross-examination when questioned as to the document (particularly the initial rather dismissive response by Mr Wellner suggesting that he might not remember what his signature may have been like at the time followed by his assertion that he did remember it and then his speculation as to how his signature might have ended up on the document). Mr Wellner did accept that the signature appearing on the copy document looked to be his, but was adamant that (however else the signature might have got there) he had not signed the 3 page document.

1. What Mr Wellner says is that he signed, with Dr Kopas, the one page typed document to be sent to the Tribunal, which was dated 30 April 2010. That document referred to both of the Tribunal applications then on foot - 92/5320 (Dr Kopas' compensation claim), stating that this application was withdrawn, and 92/4440 (CHPL's application in which orders had already been made), stating that Mr Wellner rescind[ed] the " order for possession " as rental arrears had been paid in full. The document also contained the signed undertaking by Mr Wellner that "I also undertake to effect repairs to said flat ... within 7 days and arrange to replace the roof as soon as possible". CHPL's case is that this one page document contains the whole of the agreement reached on 29 April 1992.

1. In cross-examination, Mrs Kopas was asked why she, too, did not sign the one page letter dated 30 April 1992 (and it was suggested that she did not do so because she was not a tenant). Mrs Kopas' response was that she did not know why she did not sign the one page typed document and that "They did not offer it to me. " Mr Maroya submits that there was no reason for Mrs Kopas to sign the document to be forwarded to the Tribunal since s he was not a party to Mr Wellner's application (the subject of the lower half of the letter bearing his signature) nor was she a named applicant to Dr Kopas' application (the subject of the upper part of the letter signed by her husband). That may well be the case and I draw little from this aspect of the matter. What I consider more significant is that there was no reference in the 3 page document to any other document forming part of the agreement (yet the author went so far as to refer to "oral" parts of the agreement which elaborated on aspects of it).

1. Mr Wellner adamantly denies having offered, or been instructed to offer, a life tenancy (and, further, denies having been requested by Dr and Mrs Kopas for a life tenancy).

• 30 April 1992 letter

1. The letter of 30 April, relevantly, said in relation to Dr Kopas' application that he withdrew that application for compensation against CHPL "the owner of the flat in which I am currently a tenant " (my emphasis) and, in relation to the CHPL application Mr Wellner purported to "hereby rescind the order given on 16 th April 1992 against Jurai Kopas... The eviction order is not to proceed as rental arrears have been paid in full. I also undertake to effect repairs to said flat within (7) days and arrange to replace the roof as soon as possible."

1. His Honour was satisfied that the re-entry by the lessor amounted to a breach and that various of the heads of damages claimed were recoverable but held, following Baltic Shipping Co v Dillon (1993) 176 CLR 344 that damages for disappointment and distress were not recoverable - those damages only being recoverable if occasioned by physical inconvenience caused by the breach (or if the object of the contract is to provide enjoyment relaxation or freedom from molestation). Relevantly, in the present context, it was not suggested in Musumeci that the mere issue of notices to quit (without more) constituted a breach of the covenant for quiet enjoyment.

1. (I note that it was submitted by Ms Sibtain that any damage caused by the issue of notices was a situation deliberately brought about by Dr and Mrs Kopas in saying nothing about the agreement which they contended was in existence to preclude the issue of such a notice. However, given that CHPL denied the existence of that agreement, I can only assume that the effect of Dr and Mrs Kopas raising the issue of the agreement at an earlier stage would simply have led to the present dispute being determined at an earlier time.)

1. The loss and damage pleaded as having resulted from the alleged breaches is to be found in paragraph 16 of the pleading:

(a) interference with quiet enjoyment;

(b) physical inconvenience distress vexation and frustration arising as a consequence of

(i) unreasonable interruptions and disturbances to religious observations in the knowledge that Dr and Mrs Kopas are observant Jews;

(ii) unreasonable interruptions and disturbances occasioned to Dr and Mrs Kopas' religious observations in late September 2005 - late October 2005 in the knowledge that Dr and Mrs Kopas are observant Jews and such disturbances would cause them great anxiety distress and humiliation; [though I note that the claims for exemplary or other damages for religious interference were not pressed at the hearing]

(c) loss of chance to prosecute Tribunal proceedings 92//4440; 92/5320 (these being the April 1992 application for setting aside of the 16 April orders, which ultimately were treated as rescinded in any event, and for monetary compensation on the roof case - recovery under which would at best have been some $5,000);

(d) loss of chance to prosecute contemplated roof case.

1. In the previous iteration of the pleading, particulars of the loss had stated that the current rent was $270 per week and that the market rent for the premises was $400-500 per week (an assertion seemingly inconsistent with the pending claim by Dr Kopas in the Tribunal for a rent reduction on the basis that the current rent is excessive) and, if the tenancy were to permit dogs, the market rent would be $550 to $700 per week. (Dr Kopas maintains that he only agreed to the increase to $270 per week in 2000 as they had the exclusive use of the laundry and part of the backyard T 36 - from which it seems that Dr Kopas either considers the unit should be immune from regular rent increases or that market rent has not increased from 2000, which would seem surprising having regard even to a perfunctory view of the rental market in Sydney over the past ten years.)

1. As noted above the claim for damage referable to interference with religious observances was not pressed (and nor was the claim for exemplary damages in this regard). As to the loss of the chance to prosecute the roof case in the Tribunal, the damages for that would seem to be minor insofar as there was a monetary limitation in the Tribunal, the roof has been repaired and there is no evidence as to the value of the items said to have been damaged by water from the leaking roof; as to what the loss of a chance to prosecute that claim elsewhere would be likely to sound in, I have insufficient information to be in a position to form any view but again in the absence of evidence as to substantial loss it is difficult to see how this would translate to a substantial damages claim (as apparently contemplated by the 3 page handwritten document). Moreover any abatement of rent by reference to the leaking roof would surely not lead to the restitution of all rental from the commencement of the lease as this would take no account of the benefit of occupation for that period.

1. Had the 1992 agreement been established, then apart from the issue of laches, the appropriate relief would have been to compel execution of a lease. I would not have found there to be any damages recoverable for the breaches alleged (nor would I have been satisfied that there was any breach other than the repudiation of the agreement and I am not satisfied that any compensable loss was suffered as a result). I am not satisfied that a claim for damages for breach of the 2000 agreement was established (even assuming I had found such an agreement).

1. Finally, CHPL pleads, in paragraph 24(c) of the Defence to the Further Amended Statement of Cross-Claim, that the claims for compensation sought in paragraphs 5 and 6 of the relief claimed are barred pursuant to s 14(l)(a) of the Limitation Act 1969 (NSW), s 82(2) of the Trade Practices Act 1974 (Cth) or by analogy in equity.

1. Mr Maroya confirmed that in paragraph 5 of the claim, the 'relief claimed' is Lord Cairns' Act damages. It is submitted by Mr Maroya that if Lord Cairns' Act damages are available to Dr and Mrs Kopas, either in the alternative or in addition to an order for specific performance (entitlement to that latter relief being a conceptual precondition as noted in Mc Dermott PM, Equitable Damages , Butterworths 1994, p 65), that relief, by analogy, would not be denied to Dr and Mrs Kopas.

1. In view of my findings, it is not necessary for me to consider this applicability of a limitations defence, save to note that this would depend on whether the claim for damages were to be sustainable as a claim for breach of contract alone (in which case it would clearly be statute barred) or, as pleaded, a claim for damages in lieu of or in addition to specific performance.

Relief claimed by CPHL

1. It is submitted by Mr Maroya that, leaving aside the question of s 5A of the Landlord and Tenant (Amendment) Act, if Dr and Mrs Kopas succeed in their reliance upon the 1992 Agreement, it must follow that the Notice of Termination issued on 19 October 2005 is invalid (citing s 56(3) of the Residential Tenancies Act ), by reason of its having been issued during the currency of a fixed-term tenancy. I accept that submission, but note that Dr and Mrs Kopas have not succeeded on the 1992 agreement.

1. Mr Maroya further submits that if Dr and Mrs Kopas fail in establishing the validity of the 1992 Agreement, then s 64(2)(c)(ii) of the Residential Tenancies Act requires me to consider, in the circumstances of the case, whether or not it should proceed to make an order terminating the residential tenancy agreement. I accept that such consideration must be given in circumstances where relief is sought for the termination of a residential tenancy under the Act.

1. Section 64(2)(c) applies, inter alia, to notices under s 56 of the Act ( Roads & Traffic Authority v Swain (1997) 41 NSWLR 452 at 455-56). In Swain , Meagher JA observed that the Act was intended to balance the rights of landlords and tenants and that the landlord does not have an absolute right to orders of termination of a residential tenancy agreement and of quiet possession even if the notice of termination served on the tenant is issued in the correct form and is correct as to time.

1. Rolfe J, at first instance in Swain , had listed possible circumstances which might have to be taken into account. That itemisation was of potentially relevant circumstances was in substance adopted in Adavale Realty Pty Ltd v Williams [1996] NSWRT 190 by Member Keenan, namely the period that the tenant had occupied the residential premises; the tenant's age; the tenant's state of health; the overall time in which the tenant had lived in the area in which the residential premises are situated; the tenant's employment status; any renovations made by the tenant to the premises; friends and social contacts in the area; rent payments being up to date; any breaches of the residential tenancy agreement; any complaint made against the tenant; any concession by the tenant as to preparedness to vacate the premises (in that case to permit a sale to take place after which the tenants were to be allowed back into the premises); the fact that the premises are wanted for occupation by any other person or for any other purpose. (There, as here, the tenants in question had occupied the premises for a lengthy period - 19 - 21 years. They were aged between about 52 and 67 and largely unemployed. They had lived in the area for a period of around 25 to 40 years. They were not in breach of the leases nor the subject of complaints and were prepared to assist in relation to relocation for the purposes of the sale.)

1. Considering the relevant circumstances in this case:

(i) Dr Kopas has remained in flat 3 with his family for some 26 years;

(ii) Dr Kopas is now in his late 60's;

(iii) Dr Kopas suffers from high blood pressure; he also suffered an injury in 1999 from a fall down the stairs;

(iv) It is not clear whether Dr Kopas lived in the area for long before the initial tenancy but he has lived in the area for at least 26 years;

(v) Dr Kopas is retired and lives with his wife, who does not work; their son (though apparently having worked at times outside the home) works from home as a writer - there was no evidence as to his income or his ability to obtain paid employment outside the home (matters that would be relevant to his ability to support or assist his parents if they were required to secure premises elsewhere at a higher rental);

(vi) As to renovations, Dr Kopas asserts that some work has been carried out in the unit (such as painting) but it is certainly not the case that there have been extensive renovations over the years. Mrs Kopas was adamant that she had taken on the task of cleaning the common area within the building;

(vii) There was no evidence as to the extent of the friends and social contacts Dr Kopas and his family have in the area but I am prepared to assume they are likely to be not inconsiderable given the length of time he has been in the area;

(viii) There is little evidence as to the ability of Dr Kopas to find suitable accommodation in the area although I suspect there would be a difficulty in finding accommodation at the same rental rate (at least by reference to what was asserted in the previous iteration of the pleadings as to market rent, which seems more likely than that the rent has been static over a considerable period);

(ix) as to the rental payments, the amount of rent payable is currently a matter in dispute; the current rent as increased by CHPL is $290 per week; Dr Kopas disputes that and I understand is paying the lesser sum of $270 per week and seeking a further reduction of rent. However, despite evidence from Mr Wellner as to delay in payment of rent, I understand that (apart from the period in 1992 when Dr Kopas withheld the rent due to his complaint over the state of the roof), the rent has been largely paid up to date;

(x) as to any breaches of the agreement, breaches have been alleged on both sides of the ledger, so to speak - on the part of Dr Kopas the keeping of the dogs in the premises would strictly speaking be a breach without the landlord's written consent (although Dr Kopas maintains that he received oral permission to do so some time ago) There is no suggestion that there is any written consent. I accept that there is a genuine dispute as to this issue and nothing should be taken from the possibility that this conduct may be in breach of the lease; there has also been a difficulty with access arrangements over the time and the dispute as to exclusivity of use of the laundry (Mr Wellner saying that there was permission given at one stage but that this was only temporary; on the part of CHPL, Dr Kopas maintains in the present proceedings that there have been various breaches but the only relevant ones in the absence of a finding as to the existence of the 1992/2000 agreements would be the claim for breach of the covenant for quiet enjoyment constituted by the issue of the notices of termination;

(xi) as to the making of complaints by others against Dr Kopas, there is evidence of some disputes both by and against Dr Kopas amongst the tenants in the building but there is insufficient evidence for me to form a view as to the responsibility for this - I note however that the Tribunal application in April 1992 had sought the intervention of the agent in resolving disputes of that kind, suggesting that the Kopas tenancy might not be trouble free from the landlord's point of view;

(ix) as to the rental payments - that is a matter in dispute; the current rent as increased by CHPL is $290; Dr Kopas disputes that and I understand is paying the lesser sum of $270 per week and seeking a further reduction of rent. However, despite evidence from Mr Wellner as to delay in payment of rent, I understand that apart from the period in 1992 when Dr Kopas withheld the rent due to his complaint over the state of the roof, the rent has been largely paid up to date;

(xii) there has been no concession by Dr Kopas (as there had been by the tenants in Adavale ) of willingness to relocate to permit renovations or to facilitate the sale of the property - however, given that the proposed sale requires the provision of vacant possession, it is difficult to see what concession would be feasible to meet the objectives of the landlord as evident from the contract for sale to Celegroup;

(xiii) there is clear evidence as to the fact that the premises are wanted for another purpose and nothing to suggest that this is not a genuine purpose; there is nothing to show that the ultimate beneficiary (assuming there be one) of the trust of which Celegroup is the trustee wishes to occupy the premises personally.

1. Also as a circumstance to take into account I note that there seems hardly to be an harmonious and co-operative relationship between Dr and Mrs Kopas and the property management agents - I do not express a view as to who is to blame for this and it may well be that there is fault on both sides; as to contact between the Kopas family and the landlord direct, there seems to have been very little but the Kopas family have a perception (and Dr Kopas says that he was told this by an agent at Raine & Horne) that one or more of the Celemajer family wants the Kopas family out of the flat.

1. A further circumstance to take into account is the conduct of Dr Kopas in concealing the alleged 1992 agreement and in delaying any claim of entitlement to a life tenancy (conduct that of itself seems to have contributed to some of the factors considered above, such as length of tenancy and the matters that flow from that). It would seem ironic if the fact of delaying making a claim (with the forensic prejudice that is likely to entail) ended up being a principal contributing factor to the tenancy being extended, since that would in effect reward conduct (ambush litigation) against which the Court has set its face.

1. Additionally, I note that s 65 of the Residential Tenancies Act provides in subs 65(1) that:

The Tribunal may suspend the operation of an order for possession of residential premises (other than premises which are part of the landlord's principal place of residence) for a specified period if it is satisfied that it is desirable to do so, having regard to the relative hardship likely to be caused to the landlord and the tenant by the suspension.

1. Having now found that CHPL has discharged the onus upon it to establish that the premises were not controlled premises, then the Residential Tenancies Act applies to govern the termination of Dr Kopas' tenancy. In those circumstances, having considered the matters referred to above, I am of the view that, notwithstanding the Kopas' family's long term residence in the premises, it is not appropriate to grant relief that would in effect deprive CHPL of the opportunity to derive a commercial benefit from the property for an uncertain term and grant to Dr Kopas the very life tenancy he has been unable to establish was ever agreed.

1. Having found that the tenancy has been validly terminated, then I consider that the proper exercise of my discretion in relation to the claim for possession is that there should be an order for possession but that its operation should be suspended for a period to enable Dr Kopas and his family to relocate to other premises (recognising that this may take some time and be at an increased cost to them). Ms Sibtain submitted that a 30 day period would be sufficient. I do not agree. In that regard I note that the Residential Tenancies Act 2010 (although not applicable in the present proceedings), had it applied, would have the effect that if the Tribunal considered it appropriate in the circumstances of the case to terminate a long term tenancy (one where there had been continual possession for 20 years, such as this) pursuant to s 94 of the Act, the Tribunal would be prohibited from ordering vacant possession be given earlier than 90 days after the order was made.

1. Therefore I would have regarded a 90 day period to be the minimum that is appropriate in the present case and I propose to order accordingly.

Orders

1. For the reasons above, I find for the plaintiff on all of its claims relating to the agreements alleged to have been made in 1992 and 2000 and, relevantly, find that neither of the defendants is entitled to an equitable life tenancy. For the reasons set out in my judgment on the motion to vary, I also find for the plaintiff on the protected tenancy allegation. I therefore dismiss the cross-claimants' claims based on the alleged agreements and for misleading and deceptive conduct and I grant the plaintiff's application for orders for termination of the relevant tenancy agreement and for possession of the premises. I had considered that the following orders would be appropriate in light of my earlier findings, subject to submissions from Counsel as to the final orders and any submissions as to costs, if that be desired, at a convenient time.

(1) A declaration that Dr Kopas is the only tenant of the premises described in Schedule A.

(2) A declaration that the tenancy of Dr Kopas is pursuant to a common law periodic tenancy on the terms of the holding-over provisions of the residential lease dated 6 January 1984 between Celemajer Holdings Pty Limited and Dr Kopas.

(3) A declaration that that the premises described in Schedule A are "prescribed" or "controlled" premises within the meaning of those terms under the Landlord and Tenant (Amendment) Act 1948 (NSW) and that the provisions of Parts 2-5 of that Act apply to those premises (as a consequence of which the Residential Tenancies Act 1987 (NSW) and now Residential Tenancies Act 2010 (NSW) do not apply to the residential tenancy agreement constituted by the tenancy the subject of the declaration in paragraph 2 above.

(4) A declaration that there is no "1992 Agreement" as alleged by Dr Kopas in paragraph 6 of the Further Amended Defence of 27 May 2009 and as alleged by Dr and Mrs Kopas in paragraph 4 of the Further Amended Statement of Cross-claim of 27 May 2009.

(5) A declaration that Dr and Mrs Kopas do not have an equitable life tenancy in respect of the premises described in Schedule A.

(6) An order that caveat AB983341J in respect of the premises described in Schedule A be removed.

(7) A declaration that there is no "2000 Agreement" as alleged by Dr Kopas in paragraph 18 of the Further Amended Defence of 27 May 2009 and as alleged by the Dr and Mrs Kopas in paragraph 8 of the Further Amended Statement of Cross-claim of 27 May 2009.

(8) A declaration that the Notice of Termination dated 19 October 2005 served by Celemajer Holdings Pty Limited on Dr Kopas was not a valid notice in compliance with the Landlord and Tenant (Amendment) Act 1948 (NSW) .

Schedule A

The land described in Folio Identifier 3/SP13165 and known as Unit 3/65 Chaleyer Street, Rose Bay, New South Wales.

1. Having regard to the findings on the motion to vary I have made orders in different terms in relation to the matters in proposed orders 3 and 8 above and my final orders will be as set out below.

(1) A declaration that Dr Kopas is the only tenant of the premises described in Schedule A.

(2) A declaration that the tenancy of Dr Kopas is pursuant to a common law periodic tenancy on the terms of the holding-over provisions of the residential lease dated 6 January 1984 between Celermajer Holdings Pty Limited and Dr Kopas.

(3) A declaration that that the provisions of Parts 2-5 of the Landlord and Tenant (Amendment) Act 1984 (NSW) do not apply to the premises described in Schedule A by virtue of the operation of s 5A of that Act.

(4) A declaration that the Residential Tenancies Act 1987 (NSW) and now Residential Tenancies Act 2010 (NSW) apply to the residential tenancy agreement constituted by the tenancy the subject of the declaration in paragraph 2 above.

(5) A declaration that there is no "1992 Agreement" as alleged by Dr Kopas in paragraph 6 of the Further Amended Defence of 27 May 2009 and as alleged by Dr and Mrs Kopas in paragraph 4 of the Further Amended Statement of Cross-claim of 27 May 2009.

(6) A declaration that Dr and Mrs Kopas do not have an equitable life tenancy in respect of the premises described in Schedule A.

(7) An order that caveat AB983341J in respect of the premises described in Schedule A be removed.

(8) A declaration that there is no "2000 Agreement" as alleged by Dr Kopas in paragraph 18 of the Further Amended Defence of 27 May 2009 and as alleged by the Dr and Mrs Kopas in paragraph 8 of the Further Amended Statement of Cross-claim of 27 May 2009.

(9) A declaration that the Notice of Termination dated 19 October 2005 served by Celermajer Holdings Pty Limited on Dr Kopas was a valid notice in compliance with sections 56 and 63 of the Residential Tenancies Act 1987 (NSW) .

(10) An order under s 64(2) of the Residential Tenancies Act 1987 (NSW) terminating Dr Kopas' lease of the premises described in Schedule A.

(11) An order under s 64(5) of the Residential Tenancies Act 1987 (NSW) in favour of Celermajer Holdings Pty Limited for possession of the premises described in Schedule A such order to take effect 90 days from the date of this order.

(12) Judgment in favour of Celermajer Holdings Pty Limited for possession of the premises described in Schedule A.

(13) Celermajer Holdings Pty Limited have leave to issue a Writ of Possession upon the expiry of the period in order 11 above.

(14) Judgment for Celermajer Holdings Pty Limited on the Cross-clam and that the Cross-claim otherwise be dismissed.

(15) Celermajer Holdings Pty Limited have leave to file an amended Reply and an Amended Defence to Cross-Claim so that in paragraph 2(b) and 20(b) respectively the reference to s 5A(1)(e) is amended to "s 5A(1)(d) and/or s 5A(1)(f) (but only insofar as sub-paragraph (f) refers to sub-paragraph (d))".

Schedule A

The land described in Folio Identifier 3/SP13165 and known as Unit 3/65 Chaleyer Street, Rose Bay, New South Wales.

**********

Amendments

17 June 2011 - Revised as referred to in the subsequent judgment of Justice Ward of 14 April 2011 - [2011[ NSWSC 304.

Amended paragraphs: [14(iii), (v)], [378], [379], [393], [394], [396], [397], [398]

Decision last updated: 10 November 2011