Kopas v Celermajer Holdings Pty Ltd

[2012] NSWCA 53

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Reopening after judgment
3. › Whether reopening should be allowed
4. › Where decision has miscarried and miscarriage may be rectified by primary judge rather than appeal court
5. › Applies to errors of fact and errors of law
1. Landlord and Tenant
2. › Landlord and Tenant (Amendment) Act 1948 (NSW)
3. › Section 5A registered lease
4. › Whether lease exempt from operation of 1948 Act
5. › Section 98A deeming provision
6. › Whether s 98A applies to proceedings not taken under the 1948 Act
7. › Landlord and Tenant (Amendment) Act 1948 (NSW), ss 5A, 98A
1. Evidence
2. › Exclusion of evidence
3. › Affidavit evidence excluded as uncertain and of low probative weight
4. › Appellate review of discretionary exclusion
5. › Court of Appeal must consider all available grounds
6. › Reluctance to interfere with such decisions
7. › Evidence Act 1995 (NSW), s 135
1. Landlord and Tenant
2. › Vacant possession
3. › Whether question of fact or mixed question of fact and law
4. › Vacant possession is purely a matter of fact

Quick Take

Section 98A of the Landlord and Tenant (Amendment) Act 1948 (NSW), which deems premises to be prescribed premises, applies only to proceedings arising out of or taken under the 1948 Act and does not apply to proceedings taken under the Residential Tenancies Act 1987. A party seeking to rely on the s 98A deeming provision must ensure the proceedings are brought under the 1948 Act. Vacant possession is purely a question of fact. The Court of Appeal will consider all available grounds for exclusion of evidence when reviewing a trial judge's decision, and is very reluctant to interfere with such decisions.