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
Kassem v Crossley & Anor; Kassem v Krayem & Anor [2000] NSWCA 276
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
Knox County…
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- Case
- [2011] NSWSC 40
- Decision Date
CaseChat Overview and Summary
The court found that the defendants did not have an equitable life tenancy. It ruled that the first defendant was the sole tenant under a periodic monthly tenancy at common law, following a previous holding-over tenancy. The court further determined that the premises were not controlled premises and that the tenant was not a protected tenant under the relevant act. Consequently, the notice of termination issued by the plaintiff was valid under the Residential Tenancies Act 1987 (NSW). Therefore, the court concluded that the plaintiff was entitled to possession of the premises.
No further orders were made by the court beyond establishing the plaintiff's entitlement to possession. The court's decision hinged on the nature of the tenancy and the applicability of the relevant statutory provisions.
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