Kopas v Celermajer Holdings Pty Ltd - [2012] NSWCA 53

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kopas v Celermajer Holdings Pty Ltd [2012] NSWCA 53
Hearing dates: 9 December 2011
Decision date: 29 March 2012
Before: Campbell JA at [1]; Young JA at [2]; Tobias AJA at [43]
Decision:
(1) Application for leave to appeal dismissed with costs.
(2) Application for leave to cross appeal dismissed with no order as to costs.
(3) Extend the present stay of the order giving possession to the respondent for a further 42 days from the date of these reasons so that the respondent is at liberty to issue a writ of possession on or after the 43rd day.
[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:
EVIDENCE- rejection of evidence- affidavit evidence excluded by judge because "uncertain and of low probative weight"- Court of Appeal must consider all available grounds when deciding whether decision to exclude evidence was wrong- Court of Appeal very reluctant to interfere with such decisions- in any event material probably properly rejected- leave to appeal not granted.

LANDLORD AND TENANT- application by respondent in CTTT for termination of lease and possession transferred to Supreme Court- applicant alleged a prior tenancy dispute was settled on the basis that he would be a tenant for life- whether s 5A Landlord and Tenant (Amendment) Act 1948 operated to exempt the lease from the 1948 Act- proceedings were not taken under the 1948 Act- therefore s 98A of the 1948 Act had no application- held that the proceedings were exempt from the operation of the 1948 Act.

LANDLORD AND TENANT- vacant possession- whether a question of fact or a mixed question of fact and law- vacant possession is purely a matter of fact.
PROCEDURE- re-opening after judgment- whether re-opening should be allowed- re-opening should be allowed where obvious that the decision has miscarried and that the miscarriage may be rectified by the attention of the primary judge rather than an appeal court- this principle applies to errors of fact and errors of law.
Legislation Cited: Civil Procedure Act 2005, s 61
Evidence Act 1995, s 135
Landlord and Tenant (Amendment) Act 1948, ss 5A, 98A
Cases Cited: Barilla v James [1964-5] NSWR 741; (1964) 81 WN (Pt 1) (NSW) 457
Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264
Di Salvio v Manthorpe [1965] NSWR 360
Hughes v Yuen (No 2) [1948] VLR 21
Ibrend Estates VB v NYK Logistics (UK) Ltd [2011] EWCA Civ 683; 4 All ER 539
Manche v Bigazzi (1963) 80 WN (NSW) 1681
New Cap Reinsurance Corporation Ltd v A E Grant [2009] NSWSC 950
Category: Principal judgment
Parties: Jurai Kopas (Applicant)

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWCA 53
Decision Date: 29 March 2012

CaseChat Overview and Summary

The case of *Kopas v Celermajer Holdings Pty Ltd* concerned an application for leave to appeal to the Court of Appeal of New South Wales. The applicant, Kopas, alleged a prior tenancy dispute had been settled on the basis that he would be a tenant for life. The respondent, Celermajer Holdings Pty Ltd, had applied to the Consumer, Trader and Tenancy Tribunal (CTTT) for termination of the lease and possession, which was subsequently transferred to the Supreme Court.

The Court of Appeal was required to determine several legal issues. These included whether Section 5A of the *Landlord and Tenant (Amendment) Act 1948* operated to exempt the lease from the provisions of that Act, and consequently, whether Section 98A of the same Act had any application. The court also considered whether the question of vacant possession was a matter of fact or a mixed question of fact and law. Furthermore, the court had to assess whether the primary judge’s decision to exclude certain affidavit evidence as uncertain and of low probative weight was correct, and whether the proceedings should be re-opened after judgment.

The Court of Appeal reasoned that the proceedings were not taken under the *Landlord and Tenant (Amendment) Act 1948*, and therefore Section 98A of that Act had no application. The court held that the proceedings were exempt from the operation of the 1948 Act. It also determined that the question of vacant possession is purely a matter of fact. Regarding the exclusion of affidavit evidence, the Court of Appeal indicated it would be very reluctant to interfere with such decisions, and in any event, the material was probably properly rejected. The court also noted that the principle for re-opening after judgment, which applies to errors of fact and law where a miscarriage may be rectified by the primary judge, was not applicable in this instance.

Consequently, the Court of Appeal dismissed the application for leave to appeal with costs. The application for leave to cross-appeal was also dismissed, with no order as to costs. The court extended the stay of the order giving possession to the respondent for a further 42 days, allowing the respondent to issue a writ of possession on or after the 43rd day.

Orders

Orders of the court

(1) Application for leave to appeal dismissed with costs.

(2) Application for leave to cross appeal dismissed with no order as to costs.

(3) Extend the present stay of the order giving possession to the respondent for a further 42 days from the date of these reasons so that the respondent is at liberty to issue a writ of possession on or after the 43rd day.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kopas v Celermajer Holdings Pty Ltd [2012] NSWCA 53
Hearing dates:	9 December 2011
Decision date:	29 March 2012
Before:	Campbell JA at [1]; Young JA at [2]; Tobias AJA at [43]
Decision:	(1) Application for leave to appeal dismissed with costs. (2) Application for leave to cross appeal dismissed with no order as to costs. (3) Extend the present stay of the order giving possession to the respondent for a further 42 days from the date of these reasons so that the respondent is at liberty to issue a writ of possession on or after the 43rd day. [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:	EVIDENCE- rejection of evidence- affidavit evidence excluded by judge because "uncertain and of low probative weight"- Court of Appeal must consider all available grounds when deciding whether decision to exclude evidence was wrong- Court of Appeal very reluctant to interfere with such decisions- in any event material probably properly rejected- leave to appeal not granted. LANDLORD AND TENANT- application by respondent in CTTT for termination of lease and possession transferred to Supreme Court- applicant alleged a prior tenancy dispute was settled on the basis that he would be a tenant for life- whether s 5A Landlord and Tenant (Amendment) Act 1948 operated to exempt the lease from the 1948 Act- proceedings were not taken under the 1948 Act- therefore s 98A of the 1948 Act had no application- held that the proceedings were exempt from the operation of the 1948 Act. LANDLORD AND TENANT- vacant possession- whether a question of fact or a mixed question of fact and law- vacant possession is purely a matter of fact. PROCEDURE- re-opening after judgment- whether re-opening should be allowed- re-opening should be allowed where obvious that the decision has miscarried and that the miscarriage may be rectified by the attention of the primary judge rather than an appeal court- this principle applies to errors of fact and errors of law.
Legislation Cited:	Civil Procedure Act 2005, s 61 Evidence Act 1995, s 135 Landlord and Tenant (Amendment) Act 1948, ss 5A, 98A
Cases Cited:	Barilla v James [1964-5] NSWR 741; (1964) 81 WN (Pt 1) (NSW) 457 Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264 Di Salvio v Manthorpe [1965] NSWR 360 Hughes v Yuen (No 2) [1948] VLR 21 Ibrend Estates VB v NYK Logistics (UK) Ltd [2011] EWCA Civ 683; 4 All ER 539 Manche v Bigazzi (1963) 80 WN (NSW) 1681 New Cap Reinsurance Corporation Ltd v A E Grant [2009] NSWSC 950
Category:	Principal judgment
Parties:	Jurai Kopas (Applicant)