Celermajer Holdings v Kopas [2011] NSWSC 40

The long term tenants refused to vacate an apartment after the owner terminated the tenancy. The tenants claimed an equitable life tenancy created by an agreement and breach of that agreement. Proceedings were initiated in the residential tenancies tribunal and later transferred to the court by the tenant.

The court criticised the precise identical recollection of events by tenant’s family members in affidavits and found that prejudiced the value of their evidence because it raised the possibility of collusion or that the actual words of each family member were not used. The court found that even taking account of the close-knit ties in families, a father and son are unlikely to recall in precisely the same words conversations many years after the event.

Life tenancy
The court found no agreement or equitable life tenancy. The court noted that even if there had been an enforceable agreement, the court would not have ordered specific performance of entry into a lease on the ground of unreasonable delay and also found no damage suffered as a result of the repudiation of the agreement.

The court held the owner was entitled to removal of the caveat lodged by the tenants.

The tenant argued that the court had no jurisdiction. Section 119 of the Residential Tenancies Act provides that no court proceedings shall be commenced by a landlord against a tenant for recovery of possession of residential premises. However the court held the tenant was estopped from arguing that the court had no jurisdiction in relation to the claim for possession because he was the one who sought to have the proceedings transferred to the court. The court found section 119 creates a defence but does not deny jurisdiction to the court and the court can make orders in place of the tribunal pursuant to the Residential Tenancies Act.

The landlord was not granted possession because its notice of termination was defective as to the reason for termination. The reason was not a prescribed ground for termination for “controlled premises” under the Landlord and Tenant (Amendment) Act.

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