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.