Kopas v Celermajer Holdings Pty Ltd

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.