Celermajer Holdings Pty Ltd v Kopas

[2011] NSWSC 40

Supreme Court of NSW

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. 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

Quick Take

The plaintiff landlord succeeded on all claims. The court declared that no equitable life tenancy existed, that neither the alleged 1992 nor 2000 agreements were binding, that the defendant was the sole tenant under a common law periodic tenancy, that the premises were not controlled premises under the Landlord and Tenant (Amendment) Act 1948 (NSW), and that the October 2005 notice of termination was valid. The court ordered removal of the caveat, termination of the tenancy, and possession to the plaintiff, with the possession order suspended for 90 days. The cross-claim was dismissed. An alleged agreement for a life tenancy will not be established where the document is in extraordinary and uncommercial terms, was never formally documented or relied upon for over 13 years, and the evidence of the party asserting it is unreliable — on the facts, the court preferred the evidence of the real estate agent denying the agreement over the occupants' evidence, which was affected by communal preparation and inconsistencies. Where a party deliberately conceals the existence of an alleged agreement and delays asserting rights under it for over 13 years, causing forensic prejudice through loss of evidence and witness unavailability, the defence of laches will bar equitable claims for specific performance of that agreement. Under s 98A of the Landlord and Tenant (Amendment) Act 1948 (NSW), premises are presumed to be prescribed premises unless the contrary is shown; the onus lies on the party denying the Act's operation, and that onus may be discharged by reference to a prior registered lease containing an admission by an independently-advised tenant that the requirements of s 5A were satisfied.