Kopas v Celermajer Holdings Pty Ltd [2012] NSWCA 53 (29 March 2012)


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.