Court of Appeal
New South Wales
Case Title: Kopas v Celermajer Holdings Pty Ltd Medium Neutral Citation: [2012] NSWCA 146 Hearing Date(s): 7 May 2012 Decision Date: 07 May 2012 Jurisdiction: Before: Tobias AJA
Decision: (a) Order 3 made by the Court of Appeal on 29 March 2012 is extended up to and including 22 June 2012 conditional upon prompt payment by Dr Kopas on the due date of rental in the sum of $270 per week and that in the event that there is a breach of that condition a writ of possession may issue forthwith.
(b) The applicant to pay the respondents' costs of the notice of motion filed on 2 May 2012.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PRACTICE AND PROCEDURE - Landlord and tenant - Application for further stay order granting possession of the premises - Finding affordable alternative accommodation - Request for housing assistance
Legislation Cited: Cases Cited: Celermajer Holdings Pty Ltd v Kopas
[2011] NSWSC 40
Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304
Kopas v Celermajer Holdigns Pty Ltd [2012] NSWCA 53Texts Cited: Category: Procedural and other rulings Parties: Jurai KOPAS (applicant)
CELERMAJER HOLDINGS PTY LTD (respondents)Representation - Counsel: Counsel:
A E Maroya (applicant)
J White (respondents)- Solicitors: Solicitors:
McCabe Terrill Lawyers Pty Limited (applicant)
Michael Michell & Associates (respondents)File number(s): 2006/255754
Decision Under Appeal - Court / Tribunal: - Before: Ward J - Date of Decision: - Citation: Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304 - Court File Number(s) 2006/255754 Publication Restriction:
JUDGMENT
TOBIAS AJA: These proceedings concern a dispute between the applicant, Dr Kopas, who is the tenant of premises in Rose Bay (the premises), and the respondent, Celermajer Holdings Pty Limited, who is the owner of the premises and Dr Kopas' landlord. The litigation between the parties seems to have been going on for a lengthy period of time and certainly since 2005 when the respondent entered into a contract to sell the premises for the sum of $310,000. The contract required vacant possession to be provided on completion.
The evidence in the present application establishes that that contract is still on foot. It is accepted by the respondent that the purpose of the sale is to liquidate some form of trust and transfer its assets to the grandchildren of Christine Celermajer. In furtherance of that objective, the premises is to be sold to one of those grandchildren.
The primary judge, Ward J, commented at [164] of her judgment of 9 February 2011 (Celermajer Holdings Pty Ltd v Kopas [2011]…
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- Case
- [2012] NSWCA 146
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether to grant a further extension of the stay of the writ of possession. This involved considering the applicant's circumstances, including her efforts to find affordable alternative accommodation and her request for housing assistance, in light of the landlord's right to possession.
The Court acknowledged the applicant's difficulties in securing new housing but ultimately found that the previous orders for possession should be upheld. The Court reasoned that while it had a discretion to grant a further stay, this discretion was contingent on the applicant meeting certain conditions. The Court ordered that the previous stay be extended until 22 June 2012, but this extension was conditional upon Dr Kopas making prompt weekly rental payments of $270. The Court stipulated that if this condition was breached, a writ of possession could issue immediately. The applicant was also ordered to pay the respondent's costs associated with the notice of motion filed on 2 May 2012.
Orders
Orders of the court
(a) Order 3 made by the Court of Appeal on 29 March 2012 is extended up to and including 22 June 2012 conditional upon prompt payment by Dr Kopas on the due date of rental in the sum of $270 per week and that in the event that there is a breach of that condition a writ of possession may issue forthwith.
(b) The applicant to pay the respondents' costs of the notice of motion filed on 2 May 2012.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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