Celermajer Holdings Pty Ltd v Kopas

Judgment 1HER HONOUR : These proceedings involve a dispute as to whether the plaintiff, Celermajer Holdings Pty Ltd ( CHPL ), the owner of residential premises in Rose Bay, is entitled to possession as against the long term occupants of those premises (Dr and Mrs Kopas), following service in October 2005 on Dr Kopas of a Notice of Termination of Residential Tenancy Agreement. The premises in question comprise a two bedroom unit in a block of four units each of which is owned by CHPL. 2The Kopas family (Dr and Mrs Kopas and their son David) has occupied the unit in question (Unit 3) since January 1984. Dr Kopas entered into a Residential Tenancy Agreement for a six month term on or about 6 January 1984. On the expiry of that original term, Dr Kopas continued in possession of the premises with the consent of CHPL thus giving rise to a monthly holding over tenancy pursuant to the terms of the lease. CHPL has, on various occasions since 1992, commenced steps to bring to an end the tenancy of Unit 3 and/or to obtain possession of the premises (but until the present application has not persisted with such a course). For their part, Dr and Mrs Kopas have staunchly resisted any attempts at termination of their occupancy of the premises. 3Dr and Mrs Kopas resist CHPL's claim in the current proceedings principally on the basis of an alleged equitable life tenancy of the premises. In the alternative, they contend that the premises are "controlled" premises (and that Dr Kopas is a protected tenant) for the purposes of the Landlord and Tenant (Amendment) Act 1948 (NSW) (to which I will refer by way of shorthand as the Landlord and Tenant (Amendment) Act ). They also allege breach of the alleged agreement pursuant to which they say the equitable life tenancy arose and of a subsequent agreement said to have been reached in 2000 in relation to the premises. Damages are claimed on various bases, including damages for breach of contract by reason of alleged interference with the quiet enjoyment of the premises by the issue of various notices of termination over the years and/or damages for the value of the alleged life tenancy (in lieu of specific performance). 4The genesis of the current proceedings was the service on Dr Jurai Kopas of a Notice of Termination dated 19 October 2005 requiring vacant possession of the premises on 28 November 2005. That Notice was expressed to be issued under s 56 of the Residential Tenancies Act 1987 (NSW) (to which I will refer by way of shorthand as the Residential Tenancies Act ). (Although the Residential Tenancies Act has recently been repealed and the Residential Tenancies Act 2010 (NSW) has come into operation, pursuant to the transitional provisions of the 2010 Act the former Act continues to apply in relation to any application made to the Tribunal under the former Act and not finally determined before the commencement of those provisions, as it does in relation to any termination notice given before the repeal of the former Act or other action or proceedings commenced before that repeal, relating to the termination of an existing residential tenancy - Schedule 2 cll 5 & 6.) 5The stated ground for termination of the residential tenancy agreement was the sale of the premises to Celegroup Pty Limited, which I understand to be related to or part of the same group of companies as CHPL. On 30 November 2005, CHPL applied to the Consumer Trader and Tenancy Tribunal (to which, in both its current and former emanations, I will refer as the Tribunal) for an order terminating the 1984 residential tenancy lease. 6Dr and Mrs Kopas then lodged a caveat on the title, claiming an equitable interest under a life tenancy created by an agreement in 1992. On Dr Kopas' application, the proceedings in the Tribunal were transferred by consent to this Court in January 2006, where the matter was ordered to proceed by way of pleadings. After various iterations, the relevant pleadings comprise an Amended Statement of Claim filed by CHPL on 15 July 2008, to which Dr Kopas filed a defence on 15 December 2008 and a Further Amended Defence on 27 May 2009, and CHPL's reply filed on 7 August 2009), on the one hand; and, on the other hand, a Further Amended Statement of Cross-Claim filed by Dr and Mrs Kopas on 27 May 2009, to which CHPL filed a defence on 7 August 2009. 7Unfortunately, there was no little delay in the matter progressing to a hearing, not least because for some period Dr and Mrs Kopas were not represented by lawyers and the conduct of the matter was undertaken by their son who is not legally qualified and was not familiar with court processes. David Kopas, on behalf of his parents, sought (and obtained) a vacation of the initial hearing dates fixed for hearing to commence on 4 May 2009 on the basis that he had not appreciated the tasks necessary to prepare the matter for hearing when earlier consenting to directions made in that regard. Counsel subsequently briefed for Dr and Mrs Kopas (Mr Maroya) sought and obtained leave to file the Further Amended Defence and Cross-claim and to file further affidavits from Dr and Mrs Kopas (to address the fact that much of their evidence was in inadmissible form, and, as Mr Maroya conceded, would be liable to be struck out if left as it was). I mention this aspect of the matter as the leave given to file further affidavit evidence at that stage of the proceedings was on the basis that, other than as provided for in the directions then given, no further affidavit evidence in support of the further amended defence and cross-claim was to be served without leave. (Objection was later taken on behalf of CHPL at the hearing to the attempted reliance by Dr and Mrs Kopas on affidavit evidence other than in accordance with those directions.) 8While a variety of issues were raised in the pleadings, broadly speaking the principal issues in dispute (on which CHPL's claimed entitlement to possession of the premises turns) at the hearing were as follows: (i) the existence or otherwise of an alleged agreement in 1992 pursuant to which Dr and Mrs Kopas contend they have been granted a fixed term tenancy (that fixed term being said by them to extend beyond their respective lives for a period of 90 days from the death of the last of them, though it was acknowledged by Mr Maroya during the hearing that there would be a difficulty in the lease subsisting beyond the lives of either of the individual tenants and this was referred to simply as a mechanism provision) (the 1992 Agreement allegation); (ii) the basis of the Kopas' current occupation of the premises in the event that no binding agreement for a life tenancy is found to have been made in 1992; (iii) whether the premises are controlled premises, and Dr Kopas a protected tenant, under the operation of the Landlord and Tenant (Amendment) Act (the Protected Tenancy allegation); (iv) the existence or otherwise of the alleged 2000 Agreement (the 2000 Agreement allegation); and (v) the respective claims for relief: by CHPL (for declaratory relief/removal of caveat/termination of whatever tenancy is found to be on foot and an order for possession of the premises) and by Dr and Mrs Kopas (for specific performance of the alleged 1992 Agreement or damages in lieu of specific performance; for damages for alleged breach of the 1992 and 2000 Agreements; and for exemplary damages). 9Issues such as whether, if the 1992 Agreement was reached, it was too uncertain to be enforceable and as to the authority of CHPL's real estate agent to enter into such an agreement, as well as the formal validity of the notice of termination, need to be considered in determining the above. There is also a claim for damages for misleading and deceptive conduct in relation to entry into the 1992 and 2000 Agreements but it was accepted that this turns largely on the findings in relation to the issues in (i) and (iv) above. The validity of the termination notice issued in October 2005 turns on the determination of issues (i) - (iii) above. 10In summary, CHPL seeks a variety of declaratory relief, the effect of which is to sustain its claims that the only tenant is Dr Kopas himself (ie, that he is not in occupation pursuant to a joint tenancy with his wife) and that his tenancy is a holding over tenancy pursuant to the holding over provisions of the initial 1984 residential lease; that the 1984 lease did not operate under Parts 2-5 of the Landlord and Tenant (Amendment) Act and that the premises are not prescribed or controlled premises under that Act; that Dr and Mrs Kopas do not have an equitable life tenancy of the premises; that there was no agreement reached in 1992 or 2000, as alleged; and that the 2005 Notice validly terminated the tenancy. CHPL seeks orders that the caveat lodged by Dr and Mrs Kopas on the title be removed and for possession of the premises (or, in the alternative a declaration as to its entitlement to terminate the lease and for possession of the premises). 11By their Further Amended Statement of Cross Claim, Dr and Mrs Kopas seek declaratory relief to the opposite effect, namely as to their claimed entitlement to an equitable life tenancy, and for consequential relief or further or in the alternative a declaration that the premises are 'controlled premises' and that Dr Kopas is a 'protected tenant'; and orders for the specific performance of the 1992 Agreement by execution of a lease in registrable form and further or in the alternative an order for damages representing the value of their equitable life tenancy, and/or for damages for breach of covenant and exemplary damages in an amount to be assessed by the court. 12As I understand it, Dr and Mrs Kopas contend that even if the alleged 1992 Agreement is not established, the holding over tenancy based on the 1984 residential tenancy agreement was terminated by the Tribunal in April 1992 and thereafter any periodic tenancy arising at common law was one to which Mrs Kopas was a party (and a protected tenancy under the Landlord and Tenant (Amendment) Act or, alternatively, a residential tenancy under the Residential Tenancies Act ). 13If, contrary to CHPL's principal position, CHPL's then property manager (Mr Wellner) and Dr and Mrs Kopas are found to have reached an agreement in terms of the alleged 1992 Agreement, CHPL raises a number of defences to the claims made by Dr and Mrs Kopas in relation to that agreement, namely that Mr Wellner had no actual or ostensible authority to bind CHPL to that agreement (and there was no ratification by CHPL of the agreement); a limitation defence (raised in paragraphs 15 and 24(c) of the Defence to the Further Amended Statement of Cross-claim); laches and delay; and that the alleged 1992 Agreement is not amenable to specific performance.

Summary 14For the reasons set out below: (i) I am not satisfied that a binding agreement was reached between Mr Wellner and Dr and Mrs Kopas on the terms of the alleged 1992 Agreement. (Had I been satisfied that there was an agreement reached on 29 April 1992 on the matters recorded in the 3 page handwritten document of that date, I would have held that the agreement failed for uncertainty as to the rent payable over the term of the agreement. While I am satisfied that Mr Wellner did not have actual authority to bind CHPL to a life tenancy agreement, I consider it likely that he had ostensible authority to do so. (Had there been a lack of ostensible authority, I would not have accepted that there was any ratification by CHPL of such an agreement.) In the event, I find that Dr and Mrs Kopas have not established an equitable life tenancy in the premises as contended (and hence the caveat claiming such an interest should be removed from the title to the premises). (ii) the occupation of the premises by Dr Kopas from the expiry of the initial term of the 1984 residential lease was pursuant to a holding over tenancy from month to month up until 23 April 1992; thereafter his occupation has been pursuant to a common law monthly periodic tenancy, on the terms of that earlier holding over tenancy, by reference to an implied agreement reached on 29 April 1992 for the reinstatement of the tenancy which had earlier been terminated by the Tribunal's orders on 16 April 1992; the sole tenant at all relevant times has been Dr Kopas; (iii) (following the revision of this judgment and the findings made in my reasons for judgment on CHPL's motion to vary), CHPL has established that, as at the time of the entry by Dr Kopas into the 1984 lease, the premises were not controlled premises under the operation of the Landlord and Tenant (Amendment) Act and hence has established that Dr Kopas was not a protected tenant under that Act (and therefore the provisions of the Residential Tenancies Act govern the residential tenancy agreement for these premises); (iv) I am not satisfied that a binding agreement was reached between CHPL's real estate agent and Dr and Mrs Kopas on the terms of the alleged 2000 Agreement; and (v) as to CHPL's claims for relief, it is entitled to the declarations sought in respect of the tenancy of the premises and to an order for the removal of the caveat lodged on the title, it is further entitled to an order for possession of the premises (on the basis that the October 2005 notice of termination was a valid notice of termination under the Residential Tenancies Act). I consider it appropriate in the circumstances of the case to order possession of the premises to be given on a date 90 days from the date of this judgment in order to allow Dr and Mrs Kopas a reasonable period of time to secure alternative accommodation; as to the claims for relief made by Dr and Mrs Kopas, having regard to the above findings, the claims based on the existence of both the alleged 1992 Agreement and the alleged 2000 Agreement must necessarily fail, as does the claim for damages for misleading and deceptive conduct. (Had I found that there was an enforceable agreement in terms of the 1992 Agreement binding on CHPL, then although such an agreement would in my view have been amenable to an order for specific performance by ordering the execution of a lease in registrable form but omitting the various clauses that were, in effect, conceded to be penal in operation, I would have declined to grant such relief on the ground of laches. I would also have found that no compensable damage had been sustained as a result of the repudiation by CHPL of any agreement in the terms of the 1992 agreement and would have made no order for damages for breach of the agreement or for exemplary damages; nor would I have granted any additional relief on the misleading or deceptive conduct claim.)

Jurisdictional Issue 15Before turning to the factual background to this matter (which spans a considerable period), I deal first with the jurisdictional issue raised by Dr and Mrs Kopas. By paragraph 31 of the Further Amended Defence, Dr and Mrs Kopas deny that CHPL is entitled to the relief claimed, or at all, by reason of s 71 of the Residential Tenancies Act . In paragraph 27 of the Further Amended Statement of Cross-Claim, Dr and Mrs Kopas plead that, in circumstances where CHPL places reliance upon the Residential Tenancies Act as the basis of the entitlement to relief claimed in its Amended Statement of Claim, CHPL should have continued its application in the Tribunal, which it is said is the proper forum for CHPL's claim. 16As noted in the brief introduction earlier, the application by CHPL for orders for termination of the residential lease and for possession of the premises was initially brought in the Tribunal. There, as in these proceedings, Dr Kopas raised the alleged 1992 Agreement as invalidating the termination notice. The application to transfer the proceedings to this Court was made by notice of motion filed by Dr Kopas seeking such an order pursuant to s 23 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). The order for transfer of the proceedings was ultimately made by consent. There is no suggestion that Dr Kopas foreshadowed at the time that if the proceedings were transferred he would seek to rely on s 71 as a defence to CHPL's claim. In those circumstances, there is considerable force in CHPL's submission that it hardly behoves Dr Kopas now to complain that the proper forum for CHPL's claim was the very forum from which he sought (successfully) to have the proceedings transferred to this Court. Senior Counsel for CHPL, Mr Marshall SC, appearing with Ms Sibtain, submits that the process by which the proceedings were transferred to this Court ought to be viewed as a waiver of such a defence and that Dr Kopas is estopped from raising this defence. 17Section 71 of the Residential Tenancies Act provides: No proceedings in the Supreme Court, the District Court or the Local Court to obtain recovery of possession of residential premises subject to a residential tenancy agreement shall be commenced by a landlord against a tenant or former tenant of the landlord. 18In Whiteford v Commonwealth of Australia (1995) 38 NSWLR 100, Kirby P (as his Honour then was), with whom Sheller JA agreed, held that s 71 of the Act creates a defence to proceedings brought contrary to the terms of the section but should not be read as denying jurisdiction to this Court. It is submitted for CHPL that any such defence is inapplicable where the proceedings were first commenced in the Tribunal and only later transferred to this Court (on Dr Kopas' own application). 19It is submitted that this Court has the power to make the orders sought by CHPL under both s 64 of the Residential Tenancies Act and in its plenary jurisdiction under s 23 of the Supreme Court Act 1970 (NSW). As to the former, it is submitted that the reference to "the Tribunal" in s 64 can be taken to be this Court when proceedings have been transferred to it by the Tribunal itself (s 3(1) providing that "tribunal" is to be taken as a reference to the Tribunal "except in so far as the context or subject-matter otherwise indicates or requires"). Reference is made to ss 72 and 120A of the Residential Tenancies Act , as supporting the notion that this Court has power to entertain applications of the present kind. 20It is not suggested that this Court does not have jurisdiction to determine the matters pleaded in the Further Amended Statement of Cross-Claim relating to the alleged equitable life tenancy referable to the agreement that Dr and Mrs Kopas contend was reached in 1992, though that is an agreement which it is contended also amounts to a residential tenancy agreement pursuant to s 13 of the Act. Whether reliance can be placed by Dr and Mrs Kopas on s 71, therefore, goes only to the claim for possession. Reference was made in this regard by Mr Marshall to Maryska v Mason [2007] NSWSC 1222. 21In Maryska , the plaintiff had a right of occupation pursuant to an oral residential tenancy agreement, as defined under the Act. An issue raised in the proceedings before Palmer J was whether this Court should make an order for vacant possession when the Tribunal had exclusive jurisdiction. Palmer J was of the view that where proceedings could not have been commenced in this Court to recover vacant possession from the tenant, this Court should not make an order for vacant possession pursuant to a cross claim improperly commenced in this Court. (I interpose to note that his Honour seems there to have been speaking in terms of the exercise of a discretion to make such an order, not suggesting that there was no jurisdiction to do so.) Nevertheless, although his Honour was of the view that vacant possession should be sought in the Tribunal, he noted that his judgment would establish that, as between the parties, there was no estate or interest in the premises other than a tenancy determinable according to law. His Honour declined to make orders for vacant possession but did order the removal of the caveat in that case. 22In the present case, the proceedings were in fact commenced by CHPL in the Tribunal and it was Dr Kopas who sought the transfer of the Tribunal proceedings to this Court (without any suggestion that if CHPL consented thereto he would then deny the jurisdiction of this Court to deal with its claim), which then proceeded on pleadings. CHPL did not improperly commence proceedings in this Court. Rather, it consented to the transfer of its Tribunal claim to this Court. I consider that it is not open to Dr Kopas now to assert that this Court is not an appropriate forum for the determination of the present claims and that Dr Kopas is estopped from relying on any defence that would otherwise be available under s 71 of the Residential Tenancies Act . 23Had I considered otherwise, it would have been still have been open for me to determine the remaining issues in the case (in particular, the claimed entitlement to an equitable life tenancy, on which the maintenance of the caveat rests). 24Prolongation of the litigious disputes between the parties, in circumstances where Dr Kopas by his conduct has elected to have the tenancy issues determined in this Court, does not seem to me to be consistent with the just, quick and cheap resolution of the real issues in dispute in this Court. As I am satisfied that there is jurisdiction to deal with all of the claims for relief, and there has been a contested hearing over a number of days on those claims, I consider it appropriate now to determine all of those issues.

Facts

• Entry into initial agreement in 1984 25As noted earlier, by a standard form residential tenancy agreement dated 6 January 1984, CHPL granted to Dr Jurai Kopas a six-month lease of the premises in question, commencing from 9 January 1984, at a rental of $186 per fortnight; rent being payable in advance on the first day of each fortnight. A rental bond of $372 was lodged. D r Kopas, his wife Janice Kopas and their son David Kopas have lived in the unit since 1984. 26There is no dispute that the initial residential tenancy agreement was in Dr Kopas' name alone (Mrs Kopas confirming in the witness box that her husband had always "handled all that sort of thing" - T 14.46; see also T143.13; T 149.24; T 149.45 - and not suggesting that prior to 1984 she was jointly entitled as a matter of law to the tenancy of the premises). 27The Residential Tenancy Agreement (which appeared to be in the form of a standard or pro forma agreement) was signed on behalf of CHPL by Mr Alex Wellner (a real estate or property management agent acting on behalf of CHPL). Mr Wellner gave evidence and was cross-examined in these proceedings. (The execution by Mr Wellner of the initial agreement lends support to the allegation that he had ostensible authority to bund CHPL to entry into tenancy arrangements in relation to the property.) 28The principal of CHPL at the relevant time(s), Mrs Christine Celermajer, developed health problems (specifically, she was diagnosed with Parkinson's disease) from about 1991. Mrs Celemajer has progressive dementia and is in a nursing home. It was not disputed that as at the time of the hearing she was unable to give evidence as to the events of 1992 and had been unable to do so for some time due to her significant cognitive impairment. No adverse inference can be drawn from her failure to give evidence. 29The 1984 residential tenancy agreement contained a standard form holding over clause, providing that if the landlord permitted the tenant to continue to occupy the premises after the expiration of the lease term then the lease continued as a periodic lease from month to month being terminable as provided under clause 19(ii) of the agreement by one month's written notice. (There was no reference in the agreement to any matters of the kind referred to in section 5A of the Landlord and Tenant (Amendment) Act .) There seems no dispute but that, from the expiry of the initial six-month term in July 1984, at least until the events in April 1992 to which I will come shortly, Dr Kopas' occupancy of the premises was as sole tenant under the holding over provisions of the initial residential tenancy agreement. 30The 1984 residential tenancy agreement contained a special condition prohibiting the tenant from keeping an animal or bird in the premises or on the common area without the written consent of the landlord, a provision of some relevance since the keeping of dogs in the premises became a point of some contention between the parties in this case.
• 1991 CPHL agency agreement with Raine & Horne 31In 1991, Mr Wellner changed real estate agencies, from S P Hilton & Co (the previous real estate agents acting for CHPL) to the principals trading as Raine & Horne, Bondi Beach real estate agency. A Management Agency Agreement was entered into between CHPL and that agency in 1991. Relevantly, that agreement, dated 27 February 1991, authorised the letting of properties on behalf of CHPL on 6 month terms (which, in the absence of evidence of any subsequent amendment to the authority so given, supports Mr Wellner's claim that he had no actual authority to grant a (potentially far longer) life tenancy on CHPL's behalf just over 13 months later).
• From notice of termination - March 1992 32On 2 March 1992, a Notice of Termination of Residential Tenancy Agreement was issued (and addressed solely) to Dr Kopas, requiring vacant possession of the premises by 20 March 1992. It was signed by Mr Wellner on behalf of CHPL. The Notice raised two grounds of termination: first, "having 2 dogs inside the premises" and, secondly, that rent had not been paid for 14 days (although, as in my copy it appeared that a line was drawn through items 2-5 of the copy Notice in evidence, it is perhaps unclear whether reliance was in fact being placed on the second ground). 33As to the keeping of pet dogs inside the unit, or in the common area of the building, while this seems to have been a point of some contention between the parties from around 1992 onwards (Dr and Mrs Kopas contending that they had kept pet dogs at the premises since about 1989 in reliance upon oral permission to do so by CHPL's then real estate agent), its only relevance for present purposes is insofar as it is submitted that this was permitted as a term of the (disputed) 1992 Agreement. 34As to the alleged arrears of rent, while it is suggested that CHPL's subsequent application to the Tribunal is inconsistent with 14 days' rent being owing as at 2 March 1992 (since the application lodged on 2 April 1992 referred to rent paid up to 24 February 1992), it is not disputed that at some stage leading up to April 1992 Dr Kopas had withheld rent for the premises (Dr Kopas suggesting that there were arrears of some 10 weeks). (Given that rent was payable in advance, logically if rent had been paid up to that date as the end of a fortnightly period, then rent would have been again due on that date as the start of the next fortnight - hence as at 29 April 1992 there could well have been about 10 weeks' rent due if, as the 2 April application asserted, no payment had been made from 24 February 1992.) 35In the witness box, Dr Kopas accepted that the rent had been withheld because of his complaint as to the state of the apartment block's roof, which he said had been leaking for six and a half years. Dr Kopas said that he had made complaints for some time as to the roof leaking (and, indeed, Mr Wellner, in the witness box, accepted that complaints had been made in relation to the roof by other tenants and said that the problem was with missing ridge-capping), though there was no record kept of any such complaint by Dr Kopas prior to 1992 (T 54). (Nor was there any record of the Council order Dr Kopas said had been made for the replacement of the roof, which he raised in an application to the Tribunal around this time.) 36The withholding of rent by Dr Kopas from around March 1992 seems likely to have been precipitated by storms in the eastern suburbs of Sydney around that time that were said to have been of some severity. Although Dr Kopas was vague as to the date of the severe storms in his suburb - in cross-examination putting the occurrence of a severe storm as being in 1989, he did not deny that there had been storms over the years and he said that each storm had exacerbated the problem with the roof. There was an insurance claim referable to the roof (based as I understand it on storm damage) made around mid 1992, (Dr Kopas having referred to such a claim before the Tribunal, having gone so far as to assert to the Tribunal that it had been a fraudulent claim). 37Dr Kopas gave contradictory evidence as to what advice he had obtained in 1992 from a tenancy advisory service as to the withholding of rent in light of the roof problems. At first, in the witness box, he accepted that he had been advised by "the tenancy advisory services" that he should not have withheld the rent - T 57.26 (that evidence being consistent with what he had said in his far more contemporaneous application to the Tribunal around April 1992). Logically, such advice could only have been given after he had withheld rent (it being retrospective in substance). However, Dr Kopas later denied in the witness box that he had ever received advice that he was not allowed to withhold the rent (T 79.48) and gave evidence that he had instead received advice from the tenancy advisory services that he should not pay the rent but should retain it in a separate account pending repairs to the roof (T 79). (The possibility that he had received conflicting advice on separate occasions, which could have explained this inconsistency in his oral evidence, is not maintainable in light of his insistence that he had only once received advice from tenancy advisory services or somebody in Redfern in relation to this issue.) 38Whatever advice Dr Kopas was given at the time, it is not disputed that he did withhold rent in mid 1992 and it seems likely that he did so because of his complaint that the roof needed to be repaired (or replaced). Dr Kopas, in the witness box, gave evidence of a conversation with Mr Wellner in which Dr Kopas said that he had told Mr Wellner "I'm withholding the rent. You repair me the roof, I'll pay the rent" - T 55) although he also said that he could not remember why he had stopped paying the rent (T 68) and (at T 67) referred to a telephone call with Mr Wellner in which Dr Kopas said he was not sure whether he had said he withheld the rent or had threatened to do so. 39Following the issue of the March 1992 Notice of Termination, on 3 April 1992 an application dated 2 April 1992 was filed by Mr Wellner on behalf of CHPL with the Residential Tenancies Tribunal (the precursor to the CTTT) (application RT 92-4440), in which orders were sought "to end the residential tenancy agreement and return possession to the owner" and for payment of "compensation of $1,110 in place of missing rent since 24/2/92" and for "compensation of $370 relating to prevention of letting [another unit] in the same building". The form signed by Mr Wellner included the statement that rent was only paid until 24 February 1992. That application was listed for hearing on 16 April 1992. Notice of the hearing date was sent to Dr Kopas on 7 April 1992.
• Tribunal orders 16 April 1992 40There was no attendance by or on behalf of Dr Kopas at the Tribunal on 16 April 1992 (apparently due to ill-health on the part of Dr Kopas). In his absence, adverse orders were made. Relevantly, those orders were for the termination of the residential tenancy agreement and for possession to be given to CHPL on 23 April 1992 (together with an order for payment by Dr Kopas of the sum of $1,559.28 immediately as arrears of rent to that date and rent up to 23 April 1992). The precise form of the orders is not in evidence - rather, what is in evidence is a copy of the letter dated 21 April 1992 by which the Tribunal advised Dr Kopas of the making of orders, the first paragraph of which read:

1. Order for termination & possession: The tenancy agreement is terminated and possession is to be given to the landlord on 23/4/92. 41The making of these orders is of significance both when considering the context in which it is said that the alleged 1992 Agreement was reached and in determining the status of the tenancy thereafter (if no agreement in terms of the 1992 Agreement is ultimately found to have been made). 42It is also significant that, on the making of those orders, it might be thought (and Dr Kopas himself seems to have accepted - T 82)) that CHPL had the upper hand (or, to use Dr Kopas' words in the witness box "had the cards in his hand" T 82) in any negotiations for the continued occupation of the premises by Dr Kopas and his family. However, Dr and Mrs Kopas suggest (inconsistent with that evidence) that there was some anxiety or concern on the part of Mr Wellner (or the principal of CHPL, Mrs Christine Celemajer) to negotiate with them to resolve the dispute with the Kopas family at that stage (and Dr Kopas maintained that in those negotiations Mr Wellner had had to give him 'something' - T 82). 43As noted, there was no attendance at the Tribunal on 16 April 1992 by or on behalf of Dr Kopas when the orders for termination of the lease and for possession of the premises were made. Dr Kopas apparently received advice from the Tribunal of the making of the orders by the letter dated 21 April 1992 received by him on 23 April 1992 (according to the application he filed a day later on 24 April 1992).

• Dr Kopas' 24 April 1992 Tribunal application 44No doubt precipitated by that communication, on 24 April 1992 Dr Kopas filed an application in the Tribunal (RT 92-5320), seeking an order for the payment to him of the sum of $16,900 as "compensation" in relation to the roof of the building, and an order to vary or set aside the "existing" orders of the Tribunal made in proceedings RT 92-4440 on 16 April 1992. 45The reasons stated for the application were, first, that the roof had been leaking for six and a half years (and it was said, though there was no evidence other than Dr Kopas' assertion that this was the case, that the inspector for health and building in Waverly Council "is putting an order against the landlord") and, secondly, that Dr Kopas had not attended the hearing because of health reasons and that his wife had been told to present a letter of explanation with a medical certificate, which she had then done. The application also contained the statement (in Dr Kopas' handwriting), consistent with the evidence he gave the first day of his cross-examination but from which he resiled the following day, that "I was explained today at the Tenancy Advisory Services about my rights and duties and I understand that I withheld payment incorrectly and that offsetting payments against compensation can be ordered only by the Tribunal. Due to my state of mind I could not think about what action to take and how to go about it and I ask for the Tribunal indulgence on this point". (In the witness box, Dr Kopas rather surprisingly said he did not know what "indulgence" meant in this context - T 59 - it appeared to me that his reluctance to accede to the proposition that he had sought an indulgence was due to him being wary of any admission he might thereby be making if this were to be adverse to his case.) 46The significance of the issue as to whether Dr Kopas was aware, as at 23 April 1992 or thereabouts, that he would or might not have been legally entitled to withhold rent due to a problem with the roof, on CHPL's case, is that it is said that if this was his understanding then it is inconsistent with clause C(1) of the alleged 1992 Agreement (which provided that it was a breach of the agreement if rent was not paid for 90 days "without just cause") - and that Dr Kopas, having realised this, was therefore seeking to distance himself from such an understanding (hence the change in his evidence on that topic). 47The flavour of the cross-examination in this regard emerges from the following extracts. First, at T 57-58: Q. You see, what happened is on the 24th you went to the Tenancy Advisory Service to discuss your position as a result of having received that notice dated 21 April, you had received it the previous day on the Thursday, that's what happened, isn't it? A. I don't recollect at the moment. Q. You got some advice from them which told you that you had done the wrong thing, isn't that true? A. Well, I got advice that I should not have withheld the rent. Q. Exactly, you were told that you should not have done it? A. I should not have withheld the rent, that's right. Q. At that point, you knew you were in trouble, didn't you? A. Of course I was in trouble . (my emphasis) 48The following day Dr Kopas said (at T 79.33), inconsistently with what he had said both in his 24 April application to the Tribunal and in the evidence extracted above, in the context of questions as to what would be "just cause" to withhold the rent under the alleged 1992 agreement (to which he gave the roof as an example): Q. You had been told by the tenancy advisory service that you were not entitled to withhold rent because of a claim about the roof? A. The tenancy advisory services, you mentioned it yesterday, I don't really pick it up because I don't remember ever writing it. The only record that I have or memory that I have that before I withheld rent I spoke with somebody - I spoke with few people or somebody who was official, somebody from Redfern, I don't know exactly what it was, but this is the one that said to me "Withhold the rent and put the money aside, put the money aside. Don't spend the money and the guarantee that they will repair - do the repairs" and this is the bad advice that I got. I don't remember any word that I spoke about tenancy advisory services but if it is then please show me what it was. Q. What you have just said is directly inconsistent to what you said yesterday? A. It might be inconsistent but as I say, that's yesterday was yesterday and you spoke about tenancy services right yesterday and I remember it and as far as I am concerned the only thing that could have been a tenancy services I spoke was in Redfern. I never got advice from a tenancy services not- that I am not allowed to withhold the rent . (my emphasis) 49When asked if the (contrary) statement in his application of 24 April was true or false, Dr Kopas said he did not remember and could not "relate to memory of stuff that I don't remember". It was then suggested to him, but he did not accept, that the fact that he was aware as at 29 April of the inability to withhold rent for a roof claim caused a problem for him in maintaining the 1992 agreement because of an alleged inconsistency with clause (C)(1) of the handwritten document. In that regard, as I understand it, the perceived inconsistency arises insofar as clause C(1) might be said to contemplate that the tenant will be entitled to withhold rent if there were to be a 'just cause', something that Dr Kopas might by then have understood, at least in relation to matters such as roof problems, would not automatically follow as a matter of legal right. 50I am not persuaded that there is necessarily an inconsistency - it could simply be that, whatever the relevant legal rights, this agreement was putting in place a different regime. It might also be that this was a layman's attempt at providing for abatement of rent in some situations. What seems to me more of a problem for the status of the alleged agreement is the uncertainty as to what the parties could be said objectively to have contemplated as a 'just cause' which would entitle the withholding of rent. (At this stage, I simply note that Dr Kopas' contradictory evidence on the issue of what advice he had been given back in 1992 as to the withholding of rent suggests that his evidence should be treated with caution, at the very least because of the unreliability of his recollection.) 51I place more weight on what Dr Kopas' contemporaneous documents say as to the advice he had received than his evidence in the witness box some 18 years later (which may, consciously or otherwise, have been affected by a realisation of what evidence would be likely to assist his case). Had Dr Kopas not understood as at April 1992 that there was a risk he had not been entitled to withhold rent, then the statement in his Tribunal application would have been a surprising concession. 52Given the statement contained in the April 1992 Tribunal application lodged by Dr Kopas, it is clear that at least by 24 April 1992, and hence before the meeting on 29 April 1992, Dr Kopas had some understanding (whether based on advice received from tenancy advisory services or otherwise and whether or not consistent with any other advice he may have received) to the effect that he may not strictly have been entitled to withhold rent (since his own document records this) and hence was in a position where he might not have a strong legal position upon which to rely at least in relation to his evident desire to remain in occupation of the premises.

Credibility of witnesses 176Before turning to the particular issues for determination, I consider the credibility of the main witnesses, bearing in mind that criticisms have been levelled by both sides at the other's witnesses. 177First, as to the Kopas family, criticism was made of the fact that the various members of the Kopas family had given what in some instances were virtually identical accounts of relevant events in statutory declarations and in affidavits over the years (and that slight differences had only emerged in their more recent affidavits, with the suggestion that this was an attempt to restore verisimilitude to their evidence). There was also some criticism implicitly levelled at the fact that David Kopas had remained in the courtroom throughout his parents' cross-examination. 178As to the first matter raised, there are certainly cases in which it has been said that the existence in evidence of substantially identical affidavits (and here there is no doubt that the first affidavits affirmed by the Kopas family before they had legal representation, and various of the statutory declarations made over the years in the context of the tenancy disputes - particularly in May 2001 and September 2005) contain substantially identical statements) may give rise to an inference of collusion between witnesses, which inference in turn may diminish the weight or credit to be accorded to the evidence of those witnesses. 179Mr Maroya points out that criticisms of this kind (and hence whether adverse inferences as to credit should be drawn from the similarity of the evidence in question) must be carefully assessed (referring to Angaston and District Hospital v Thamm (1987) 47 SASR 177). 180A clear example of the identicality of evidence prepared in the preparation of their ongoing tenancy disputes is that Dr Kopas and David Kopas made out virtually identical statutory declarations in 2005 as to the conversation that is said to have taken place with Mr Owen in 1996. As noted earlier, each of these statutory declarations asserts that the maker could recall "ad verbatim" the precise words of the alleged conversation (and contains a reference to identical thought processes). 181Cross-examined as to this, Dr Kopas' evidence seemed to be that he believed that he had the ability to recall the precise words used by Mr Owen (verbatim or "word by word"), or at least that was the case in 2005 when he made the statutory declaration, and that he believed his son (who he considers, with a father's eye, to be a genius) also very likely had the ability to do so (T 49.40 to T 51.25), in the course of which there was the following exchange: Q. You each made out statutory declarations in 2005 of the same conversation, didn't you? A. That's right. Q. Nine years after the event? A. That's right. Q. The versions in those two statutory declarations are almost exactly the same, aren't they? A. If I remember correctly, more or less, yes. I think there's some slight differences, but yes. Q. You know, don't you, that the affidavits of you and your son do not have the conversations any longer precisely identically, do they? A. That's right. Q. That is because A. Identically, you mean to the statutory declaration? Q. Correct? A. That's right, yes. Q. That is because, isn't it, you have wanted to distance yourself from this supposed ability to recall precise words? A. Not at all. and denied that the now 'subtle' differences in the more recent affidavits (prepared no doubt with the assistance of the lawyers retained for the hearing) were for the purpose of lending verisimilitude to the evidence. 182It is submitted by Mr Maroya that the close-knit character of the family and the fact of their shared experience (to which Mrs Kopas attested in cross-examination at T 156.2) must inform the admission by Dr Kopas that he and his son (and, it would seem, the family in general) had discussed the events from 1992 up to 2002 on numerous occasions by 2002 (T 49.3-14). Certainly, there was a ready acknowledgement by both Dr and Mrs Kopas that there had been discussion as to the events that had occurred and Mrs Kopas accepted that her husband and son had looked at her draft affidavits in preparation for this trial. For some period, David Kopas was assisting in the preparation of the case (and presumably in the preparation for that purpose of the first affidavits in 2009), as he seems to have done in 2001 in the preparation of the material earlier relied upon for his father's 2000 Tribunal application. (That said, there is also a 14 page statutory declaration, marked as Exhibit 2, made by Mrs Kopas in her own handwriting that bears no resemblance to any of the other statutory declarations made in the 2001 Tribunal proceedings by Dr and David Kopas. Thus it is by no means the case that on each occasion the family signed statutory declarations in virtually identical form.) 183Mr Maroya submits that there is a distinction to be drawn between the circumstances considered in Macquarie Developments Pty Ltd and Anor v Forrester and Anor [2005] NSWSC 674 (where Palmer J considered the weight to be attributed to two affidavits dealing with critical discussions in virtually identical terms) and the present. That distinction, it is said, being that in Macquarie , the evidence in question had been prepared by a solicitor (who had "copied and pasted" portions from each of the affidavits), whereas in the present case the relevant affidavits and statutory declarations had been prepared by David Kopas, a non-lawyer. It was submitted that non-lawyers might have considered it important to have the evidence in identical terms. 184If that is indeed the explanation it nevertheless does not address the unlikelihood that each member of the family would have a precisely identical recollection, uninfluenced by the recollections of the others, of shared experiences; nor does it address the fact that on occasion one or more of the Kopas family deposed to matters to which he or she was not directly privy and thus could only have been recording information conveyed by another. Nor does it explain the evidence by the Kopas family members as to how these documents came to be prepared - which was to the effect that each had written (or dictated to David Kopas) their own account of events. Dr Kopas said of the 2005 statutory declarations - we spoke about what happened then we sat down "and everybody wrote his version" T 78; he denied copying the declarations. 185Relevantly, in Macquarie , Palmer J noted that it was not simply the possibility of collusion between witnesses that prejudiced the value of evidence prepared in this fashion, but also the possibility that the affidavit did not use the actual words of the respective deponents: [I]t is totally destructive of the utility of evidence by affidavit if a solicitor or anyone else attempts to express a witness' evidence in words that are not truly and literally his or her own. Save in the case of proving formal or non-contentious matters, affidavit evidence of a witness which is in the same words as affidavit evidence of another witness is highly suggestive either of collusion between the witnesses or that the person drafting the affidavit has not used the actual words of one or both of the deponents . Both possibilities seriously prejudice the value of the evidence and Counsel usually attacks the credit of such witnesses, with good reason. (my emphasis) Where the identity of evidence is due to collusion, the devaluation of the evidence is justified but where, as in the present case, the identity of evidence is due entirely to a mistake on the part of a legal adviser, a witness' credit and a party's case may be unjustly damaged. 186In other words, even if there has not been collusion as such between the witnesses, in the sense of changing their evidence to make it fit with that of another, the fact that the affidavits may not contain the actual words of one or other of the deponents devalues their evidence. 187Here, there seems to me to be a distinct possibility that at least one or more of the Kopas witnesses' evidence reflects not what that witness actually recalled, independently of the others, of particular conversations or events, but rather presents a common recollection drawn from discussions between family members over the years as to what had happened (and thus with whatever interpretation or gloss may have been placed, consciously or otherwise, on those conversations over the years in the telling or re-telling of events). This must be exacerbated, in the case of David Kopas, by the fact that on his own evidence he was not much interested in what was happening in 1992 (therefore must be largely reliant on what one or both of his parents have told them in that regard) and was then involved as his parents' representative and amanuensis to some degree in the conduct of proceedings in the Tribunal and in this Court. 188Understandable as it is that the family would have discussed their shared experience of the tenancy disputes over the years, it nevertheless means that their evidence must be approached with some caution for the reasons suggested by Sperling J in Seamez v Mclaughlin [1999] NSWSC 9 (in circumstances where his Honour concluded, from the high degree of similarity in content, detail, terminology and sequence, particularly in relation to conversations, between the affidavits of the three witnesses, that the affidavits could not have come into existence without direct or indirect collaboration): [a]cceptance of one of the three accounts of the events ... means not only that the other two are not genuinely recollected, independent accounts. It also means that the authors of those other accounts have misstated the way in which their respective accounts came into existence, and seriously so. The credit of the others would then be worthless. 189Here, while I do not consider that the seemingly communal nature of the preparation of the affidavits in this case renders the credit of the witnesses worthless, it suggests that care must be taken before accepting that the evidence of one or other of the family members as to his or her recollection of events provides corroboration of the evidence of another. 190I also note that the very fact that there were numerous discussions over the years of the family's shared experience gives rise to the difficulty recognised in Watson v Foxman (1995) 49 NSWLR 315 (at 318-319), McLelland CJ in Eq (as his Honour then was): ... human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed . All this is a matter of ordinary human experience. (my emphasis) 191His Honour went on to say that: Each element of the cause of action [there, for misleading and deceptive conduct, though his Honour noted that the principles also applied in considering a claim in contract or estoppel] must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712 . 192In Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810; [2008] ATPR 42-410 (at [41]), referring to the above passages, Rares J said: His Honour's observations as to the frailty of human memory are, of course, not to be taken as limited simply to cases invoking claims under the Trade Practices Act or its analogues. They are just as apposite in a case such as this where the question arises of what oral terms of the contract were agreed in the course of negotiations. 193Of perhaps even more significance, in my view, than the fact that the earlier affidavit evidence contained identical accounts of various events, is the fact that the deponents maintained that the documents prepared in this close-knit or communal family fashion, nevertheless reflect each individual's actual recollection of events. Dr Kopas and his son purport to recall in almost precisely the same words conversations and thought processes many years after the event (something inherently unlikely). 194Also, at least in relation to the statutory declarations prepared by David Kopas in 2001 in the context of his father's then Tribunal application, the evidence given by Mrs Kopas and by David Kopas in cross-examination as to the level of involvement each had in the preparation of the Tribunal application is inconsistent with what is stated in seemingly formulaic terms in their almost identical statutory declarations. This suggests that, if their evidence in this Court is to be accepted on that point, then there was either an inattention to detail when the initial statutory declarations were made or an attempt at that stage to overstate the level of involvement each had had in the proceedings (presumably in order to inflate the amount of the non-economic loss claim). Either explanation casts doubt as to the reliability of their evidence in these proceedings. 195I turn then to the respective witnesses. Mrs Kopas 196Subconsciously or otherwise, it seems to me likely that Mrs Kopas' recollection of events has been influenced by what her husband has said to her over the years as to those events. She readily conceded that she had left matters such as the lease of the premises to her husband - he "handled" all such matters; she says that she was not actively involved in the negotiations or discussion at the 29 April meeting (beyond warning her husband to be wary of Mr Wellner) and certainly did not given any evidence as to what was discussed over the course of the supposedly lengthy meeting in relation to the terms of the alleged agreement; she did not expect to sign anything in relation to the tenancy and only did so when asked to do so (which does not suggest an active involvement in the terms on which the tenancy arrangements were to continue); and what she did sign she said was a document she understood was simply to give her 'peace of mind'. None of that would be inconsistent with Mrs Kopas having done no more than sign a note her husband may have prepared at some stage of what he might have sought to achieve by way of resolution but that is not what Mrs Kopas says it was - rather, she says it was a binding agreement under which she had an entitlement to remain in the premises for the rest of her life (though it is not clear whether she was aware of the terms on which that life tenancy was to operate). 197In her evidence, Mrs Kopas was most passionate when explaining the damage occasioned to her antique clothing and linen by the roof damage and in her insistence that she had carried out cleaning in the common areas. Her focus seems to have been on those matters, not the wherewithal of the lease arrangements. 198Moreover, on at least one occasion in the witness box Mrs Kopas put forward as an assertion of fact (ie, "Alex typed it [the one page 30 April letter]" - T 145.3) before then qualifying the answer and making it ultimately clear that this can only have been an assumption on her part (see T 145.3-32). Similarly it can only be an assumption that Mr Wellner telephoned Mrs Celemajer 3 or 4 times (T 154.11). Therefore, I am not persuaded that her evidence that her husband had handed Mr Wellner the agreement and that he had read the agreement and went outside and said he was phoning the landlady (T 154.7) is a reliable recollection of events, particularly when Mrs Kopas freely conceded that she did not understand the effect of the document and seems to have left the discussions to her husband. Mrs Kopas was adamant that Mr Wellner had said "look you can stay there the rest for your lives" (T 160.10) (and she understood that she had certain peace of mind when she had the document) but a statement of this kind seems to me to be extraordinary and I accept Mr Wellner's evidence on this point as the more credible. 199Therefore, while I considered Mrs Kopas to be genuine in her belief that a life tenancy had come into existence in 1992, I think it likely that her recollection of events has been largely influenced by her husband's account of events over the years. I am not persuaded that Mrs Kopas can reliably recall (independent of what her husband has told her over the years) that Mr Wellner signed anything on 29 April 1992 other than the one page typed document to the Tribunal. David Kopas 200David Kopas said, somewhat dismissively, that he had taken little interest in events in relation to the tenancy in 1992. He admitted that he had assisted his father in the preparation of the various cases since 2002 (T 167.25), though mainly in a secretarial role at the outset it would seem, and said that his active involvement in the dispute (or the litigation in relation to the dispute) dated from about 2007 by way of assistance for his father. His recollection of events around 2000 must surely have been influenced by his father's (or mother's) account of the events and alleged agreement that preceded them. (Indeed, his advocacy on behalf of his parents in the first occasion the matter came before me, suggests that in the preparation of the evidence to that point he was consciously seeking to argue his parents' case - which must detract from the objectivity of his own evidence.) 201In the case of David Kopas, there is also a question as to what, if anything, should be taken from the fact that he remained in court during his parents' cross-examination and took an active interest in certain of the evidence being given by his father (particularly in relation to rent invoices or the rent ledgers). (His mother also did so, but as a party it is difficult to see how she could be criticised for so doing.) It seems clear that it was a conscious decision of David Kopas to remain in the courtroom, since he must have heard the cross-examination of his mother in relation to the like topic. However, as pointed out by Mr Maroya, the cross-examination of David Kopas was not as extensive as that of his father and I did not consider that the weight to be given to his evidence is affected by the fact that he had heard the answers given by his parents in cross-examination. 202I did raise, during his cross-examination, one issue in relation to an answer given by David Kopas (T 165.11) in response to a question as to why he was checking documents while his father was giving evidence. Mr Kopas said "I was checking documents at times at the request of my parents' solicitor that was asking me for information". Insofar as that answer suggested that there was a contemporaneity between the request by the solicitor and the checking of documents by Mr Kopas, I felt it proper to draw to Counsels' attention that I had not observed requests having been initiated by the solicitor in the courtroom but had observed that on occasion Mr Kopas had communicated with the solicitor. I did so having regard to what was said by Mason P in Kassem v Crossley & Anor ; Kassem v Krayem & Anor [2000] NSWCA 276; and what was said in Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, at [2] and by King CJ in Angaston & District Hospital v Thamm (1987) 47 SASR 177, at 178-179, as to when it may be incumbent upon a judge, as a matter of procedural fairness, to give notice to the parties of an intention to rely upon particular observations of a witness. As I made clear at the time, I had formed no view as to the import of those observations of Mr Kopas but felt I should raise the issue in case it might be a factor that ultimately influenced my view of the evidence of the witness. I note that the circumstances in which, as a matter of fairness, a judge should give notice that he or she intends to rely upon an observation of the witness in the witness box are the exception rather than the rule ( Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, at [2]). However, where it would not otherwise have been apparent to Mr Maroya what had been observed and he would then not have had an opportunity to address me on that issue, I considered it appropriate to raise the matter. 203Mr Maroya submitted that the two reasons given by Mr Kopas for checking the documents (one out of filial concern for his father's condition and the other the requests of his parents' solicitor for information) could both have conceivably have involved communications with his parents' solicitor and not only communications initiated by her . I accept that could well be so. My query arose from the fact that, as I had understood Mr Kopas' response in the witness box, he was suggesting that the checking of documents had been done at the request made of him by his parents' solicitor at that time - something inconsistent with my observation. However, I accept that this may not have been the intent of Mr Kopas' answer and that he could have been addressing requests for information made by his parents' solicitor at an earlier time. No adverse inference can be drawn from the fact that he was so doing, particularly in circumstances where for some time he had had the conduct for his parents of the preparation of the case and might be thought to be familiar with the documents and best placed to assist the solicitor in that regard. 204Nevertheless, I doubt that David Kopas' evidence can be regarded as uninfluenced by his participation in the family conversations in relation to the tenancy over the years and his erstwhile role as an advocate for his parents' cause. Dr Kopas 205Ms Sibtain submitted that Dr Kopas gave inconsistent and implausible evidence. She pointed to the apparent willingness of Dr Kopas to make serious allegations of fraud in relation to the landlord's conduct in making an insurance claim for storm damage (Exhibit H p3) (without, as he appeared to concede in the witness box, information on the basis of which such an allegation could properly be made) and allegations of gross bias (in relation to the Tribunal Member who had found against him) (Exhibit L p11) or dishonesty of those with whom he had dealt in relation to the tenancy. 206As to the former, this allegation seems to have been based on little more than surmise from the fact that there had been no investigation of his unit and from the fact that the roof had leaked before the storm the subject of the insurance claim. Dr Kopas accepted that he did not know much about the insurance claim (T 35.35) and had no knowledge as to whether anyone from the insurance company had carried out an inspection of the outside of the roof (T 69.5), accepting that if a claim were made then an insurance company would investigate the claim (T 68.40). It is submitted by Ms Sibtain that Dr Kopas could have had no proper basis for the allegation of fraud and, on the material before me, that seems to be the case. At the most, Dr Kopas was prepared to concede that "maybe fraud I would not use today because it's a little bit excessive but I definitely say it was deceptive" (T 69). 207As I understand it, and as recounted by Member Dellar, the allegation of fraud rested on the making of a claim on insurance for the repair or replacement of the roof arising from the storm when there was a pre-existing problem with the roof (although he seems to have conceded that each storm had exacerbated the then existing roof problems). He also seems to have it fraudulent or deceptive for the landlord to accept money for repair of the ceiling, without the ceiling in his apartment having been inspected or repaired. 208Dr Kopas had no knowledge of the terms of CHPL's insurance policy (including as to whether money paid under that policy was required to be used for any particular purposes) or of the circumstances in which the roof claim was made. Nor was there any information before me in that regard. 209I think that little can be drawn from this other than that it suggests that Dr Kopas was prepared to make a serious allegation as to fraud without having all the information before him which would enable such an allegation properly to be made. While that does not necessarily suggest that the present allegation has no foundation (the respective circumstances of the allegations being quite different) it does suggest a willingness to call in aid unfounded allegations in order to support his case. More relevantly, it suggests to me that Dr Kopas' perception of events is coloured by his focus on how they affect him (ie an inability to view events dispassionately). (An example of this is the confidence with which he seems to have asserted the proposition that because the roof had leaked over a six and a half year period then he should have the benefit of occupation of the premises in effect rent free - "I paid something for something I should not pay for leaking roof" T 72.44.) 210As to the allegations of bias and dishonesty, Dr Kopas readily accepted in the witness box that he had accused Member Dellar of bias and that he believed each of Mr Wellner, Mr Owen and Ms Kwawegen to be lying. The allegation of dishonesty also extended to Mr Kemeny (who was not called for cross-examination). Dr Kopas went so far as to hint at undisclosed misconduct in relation to Ms Kwawegen: Q. And Ms Kwawegan, do you believe she's lying? A. I know she's lying and she has a history . (my emphasis) 211I do not see a basis on the evidence before me to make findings of dishonesty against those individuals. However, to accept the version of events proffered by Dr and Mrs Kopas would require me to form the view that a succession of real estate agents (none of whom has any personal interest in the outcome of the proceedings, other than perhaps the vindication of his or her professional behaviour) must either be lying on his or her oath or affirmation or have had such a poor recollection of events (including events that in their stated experience would be very unusual) and that they were remarkably lax in their record keeping and documentation of agreements or arrangements reached on behalf of their clients and disinterested in ascertaining the correct position when (prior to late 2005) it is said that there was reference to an earlier agreement in respect of the tenancy. This defies credibility. The objective unlikelihood of a series of professional real estate agents being similarly afflicted points against the version of events put forward by Dr and Mrs Kopas; and Dr Kopas' willingness to accuse those with whom he has dealt (almost universally in this case) as liars suggests to me that he may be inclined to accuse those who disagree with his recollection of events of dishonesty without accepting the possibility that there might be conflicting versions, honestly held, of the same conversation. 212It was further submitted by Ms Sibtain that an adverse view should be taken of Dr Kopas' credit on the basis that he had given false evidence before this Court in relation to the advice received from the Tenancy Advisory Service on 24 April 1992 (T 57-58), which is consistent with his handwritten application to the Tribunal that day, contrasted with T 79-80 the following day. (Further, insofar as he had said, to my recollection somewhat dismissively, when challenged with the inconsistency that "yesterday was yesterday", it was suggested that this indicated that Dr Kopas was "not too concerned with being truthful" in this Court.) My recollection of the manner in which Dr Kopas answered this question was that he was attributing any inconsistency in his evidence between the two days on problems associated with his blood pressure on the first day (and seeking to discount any significance that might be attached to his answers and that would be adverse to his case). I did not consider Dr Kopas to be exhibiting a conscious disregard for the truth in that exchange but did think that the inconsistency in his evidence pointed to the danger of treating him as a reliable witness. 213As to his physical condition, Dr Kopas did exhibit some difficulty in reading documents put to him in the witness box, and that difficulty did seem to increase during the first day of his cross-examination. Dr Kopas' family exhibited some concern during the course of the cross-examination as to his condition, though it had not up to then been obvious to me that Dr Kopas was suffering from anything more than a difficulty in reading the documents (which I had assumed to be due to bad eyesight). Once I was made aware of Dr Kopas' blood pressure problem, I adjourned to enable Dr Kopas time to have some water (he being unable to drink the water provided for him in the witness box), though he had professed himself able to continue. When he returned to the witness box I acceded to an application for the cross-examination to be adjourned overnight. In general, my observation was that Dr Kopas had been capable of understanding and responding to the questions put to him but he did appear to have lost concentration towards the end of his evidence on the first day, which was attributed to his blood pressure problems. (Mr Marshall, I might add, had been unfailingly courteous in his cross-examination of Dr Kopas; and gave Dr Kopas the opportunity the following day to correct any answers that he felt had been affected by his condition.) 214I accept that there may have been room for genuine confusion on Dr Kopas' part in relation to what advice had been obtained and when from the Tenancy Advisory Services (although, ironically, it was the answer given on the first day, when it seems there was a problem with his blood pressure, which is the only one consistent with the documentation prepared by Dr Kopas in 2000). I would nevertheless give Dr Kopas the benefit of the doubt on this issue. 215Ms Sibtain also drew my attention to evidence that suggested Dr Kopas had made a false allegation to the Tribunal as to the existence of a written agreement by Mr Wellner at about the time of the renovations of the units in the block in 2000 to the effect that the Kopas family could live in one of the other units whilst their unit was being repaired. The allegation is contained in a submission to the Tribunal (Exhibit H p5-6). In the witness box, Dr Kopas at first denied outright that Mr Wellner had done so and then seemed to be less confident about the proposition (from T 98.15-40): Q. Did Mr Wellner ever give you anything in writing to say that you could live in one of the other units whilst yours was being repaired? A. In writing? No, never. Q. That would be false to say that, wouldn't it? A. That he gave me something in writing, I can stay in any of the other units? Q. He never did, did he? A. To give me writing, I don't recollect to give me ever, I don't recollect at all. Q. Didn't happen, did it? A. As far as I recollect, no . Q. You claimed he did when you wrote a submission to the tribunal, didn't you? A. Did I? Q. You don't recall what fibs you told from time to time, do you? A. You refer to submission of 2001 or 2, whatever? Q. 2002? A. Yeah, well, do you think I remember what was written in the submission? It was a very very long submission that I dictated to my son, more or less. I don't remember what's written there. I don't remember every page that's written there. I don't remember most of the stuff that my wife wrote in her statutory declaration of 14 or 16 or whatever pages she wrote at that time. (my emphasis) 216It was submitted that this was a virtual concession by Dr Kopas that he could not remember his own lies (since on that evidence the assertion in the Tribunal that there was a written agreement was false). I do not consider that the evidence given in cross-examination goes further than to show the unreliability of Dr Kopas' present recollection of what happened years earlier (be that in 2005 or in 2000). 217The impression Dr Kopas gave me, during cross-examination, was of someone wary to avoid being trapped in an admission against his interest in some fashion - hence his (quite legitimate) concern to avoid waiving legal professional privilege but also his apparent keenness to revisit on the second day of cross-examination any inconsistency between his evidence in the statutory declaration of 2005 and his evidence in the witness box as to the alleged conversation on 27 April 1992. 218On occasion (understandable given that Dr Kopas has no doubt lived with this dispute in his mind for a considerable period), in his evidence Dr Kopas seemed to wish to argue his case (such as when speculating as to why it would be in the landlord's interests to agree to the terms of the alleged 1992 agreement). 219Dr Kopas' lack of trust for Mr Wellner (and/or the landlord) was apparent from the ambush mentality he seems to have adopted in relation to the Tribunal hearings - he was adamant that he had not produced the 1992 agreement at the hearing before the Tribunal because he wanted to "set up" Mr Wellner, ie to "catch him in a lie" - T 130 (though if he had, as he said he did, a copy of the signed handwritten agreement in his possession (and that had up to then been good enough for him - such that he had not seen the need to press for a more formal agreement) then there seems no reason not to have produced that as soon as there was any issue as to the keeping of the dogs on the premises (ie back in 1993) or when directly asked by the Tribunal Member in 2000 as to the agreement on which he relied). 220According to Dr Kopas' version of events (echoed in his son's evidence), Dr Kopas seems to have been engaged in a strategy to outwit Mr Wellner (apparently believing that the latter was engaged in a fishing expedition to find out what documentation Dr Kopas had, when Mr Wellner asked him to produce the agreement he said was in existence - T 139/140) rather than being prepared squarely to put before the Tribunal (or the landlord, through Mr Wellner) what he said was the agreement in existence from 1992. (If so, that strategy has backfired badly, because I am left with real doubts as to the existence of the document in 1992 given that it was not produced or relied upon when one might logically have expected it first to have been.) 221Dr Kopas' tendency to seek to 'score points' off others or to outwit them seems to be illustrated by the evidence he gave as to a conversation with Ms Kwawegen in which she seems to have understood him to be disavowing a desire to remain in the premises (and was pressing as to when he would be prepared to leave). Dr Kopas explained that when he had denied wanting to live in perpetuity in the unit, this was referring to what he had understood was a lease in perpetuity that could only be granted by the government. That may be so, but the impression that conveyed to me was that Dr Kopas had been willing to let Ms Kwawegen operate under a false assumption as to his intentions when he told her that he did not want to live in the unit in perpetuity. 222The overall conclusion I reached was that, prior to 2005, if Dr Kopas were able to stave off attempts by the landlord to obtain possession of the premises without reliance on (and therefore scrutiny of) the 3 page handwritten document (as happened in 2000) then he preferred to do so and that the document was only produced when Dr Kopas was forced to do so. That suggests to me a consciousness that the document might not bear the weight sought to be put on it by Dr Kopas. 223In summary, I have difficulty accepting Dr Kopas' version of the events of 29 April 1992, largely because of the improbability of an experienced real estate agent entering into an agreement of the kind suggested and not documenting it other than in the manner suggested by Dr Kopas. I think it likely that Dr Kopas has in his own mind come to believe that he has an entitlement to a life tenancy but I find his evidence in that regard improbable and that the more credible version of events by far is that proffered by Mr Wellner. 224I note that Ms Sibtain also submits that it is relevant that the only documents from 1992 now come from Dr Kopas or his family (Raine & Horne having long since disposed of its 1992 files by the time the alleged 1992 Agreement was first produced in December 2005) but that they have not produced those documents which one might expect had they existed (such as the original photocopy of the document they say was signed on 29 April 1992 or documents supporting their roof claim for $16,900 or a letter said to have been produced to Mr Wellner in 1993). In this regard, the delay by Dr Kopas in producing the 1992 handwritten copy might, to a cynical mind, be seen not simply as an attempt to catch Mr Wellner out in a lie but also to ensure that there was no documentary record to gainsay his version of events - however, this was not put to Dr Kopas and I do not draw any such conclusion. CHPL witnesses 225As to the witnesses for CHPL, the main attack on credibility was in relation to Mr Wellner. In summary, Mr Maroya submits that Mr Wellner's oral evidence should not be preferred over the testimony of the Kopas family members, unless independently corroborated by reference to contemporaneous documentary sources. As to the remaining witnesses, the criticism of those who were cross-examined was as to their lack of recollection of the events in question. Mr Kemeny was not cross-examined (Mr Maroya characterising his evidence simply as self-serving and being critical that there was no evidence as to Raine & Horne office practice from which one might assume he would have seen a copy of the agreement had it been placed on file). Nor was the forensic expert (Mr Anderson), whose evidence was inconclusive in that he confirmed in effect that it would be possible to carry out a cut and paste exercise in order to produce a photocopy of the 1992 Agreement bearing Mr Wellner's signature even if he had not signed that document but that it was not possible to determine this without reference to the original photocopy. Mr Wellner 226Mr Wellner is elderly and has retired from practice. He has held various professional certificates in relation to property management and real estate. Mr Wellner had worked at the Bondi Beach real estate agency since 1979 and had managed the block of flats in question from that time. As at 1992, Mr Wellner had had 20 years experience as a property manager and he set out in his affidavit the was the most senior property manager in the agency. It was not suggested that he had anything other than a business connection with CHPL nor was it suggested that he had any personal interest in the outcome of the proceedings or any grudge to bear against the Kopas family. Mr Wellner deposed to having had experience in tenancy matters appearing on behalf of landlords in, relevantly, the Tribunal. 227In summary, Mr Wellner's affidavit evidence was to the effect that if the 3 page handwritten document had been presented to him in 1992 for execution he would have read the document and would not have recommended that the landlord enter into such an arrangement. He regarded the conferring of a life tenancy for residential premises as extraordinary. Hence he was satisfied that, had he read the document, he would have recalled it and that, had the occasion had ever arisen for him to refer such a matter to the landlord, he would have given a strong recommendation that the landlord not agree to such a document. Mr Wellner says that the document was not presented to him for consideration by Dr Kopas in 1992 (or relevantly thereafter) and that no occasion arose for him to refer the matter for consideration by the landlord. 228In addition, Mr Wellner denies having any authority to sign the document. Ms Sibtain submits, therefore, that on Dr and Mrs Kopas' case, Mr Wellner must be lying about two things: first, about not having authority to sign the document; and secondly, about not having signed the document (and submits that it would not be necessary to lie about both). 229Mr Maroya was critical of the manner in which Mr Wellner gave his oral evidence, submitting that at times he avoided answering questions directly; that he was guarded in his responses, or often answered before a question was asked, or sought to anticipate the direction of questioning; that he gave technical answers (Mr Maroya referring, by way of example, to the answers given by Mr Wellner to the effect that an agreement was not binding if outside the Tribunal hearing room); that he was unhelpful in his answers (to the point it is said of being obstructive); that he was not prepared to make concessions against CHPL's interests until brought to specific documents (something said to be unlike the position of Dr Kopas); that on one or two occasions, he asked to be shown a document or pointed to evidence in support of the proposition put before answering the question (in fairness I note that Dr Kopas also asked to be shown documents - at least in relation to questioning over the tenancy advisory services issue); and that he was generally reluctant to make concessions before being forced to do so, or to acknowledge the import of a particular document that he was asked to consider. 230While I would accept that Mr Wellner appeared less than enthusiastic at being required to give evidence of events so long ago and that he was somewhat pedantic in some of his responses, I did not see Mr Wellner as an obstructive witness (and, indeed, he was prepared at times to enter into debate as to matters of speculation - such as his response to the Tribunal in December 2005 when he was first presented with the copy document bearing his signature). Rather, it seemed to me that Mr Wellner was forthright or dogmatic in his manner. While generally concise in his answers, he did speculate from time to time - though it seemed to me that he thought he was being called upon to do so. There were a number of matters that Mr Wellner did not recall (which is not surprising given the lapse of time and the fact that this was one of presumably many properties for which he had management responsibility). 231Mr Wellner was adamant that he had not agreed to, nor had he offered, (and had not been authorised to do so) a life tenancy and that he had not signed the 1992 handwritten agreement. I accept his evidence. It seems to me highly improbable that an experienced property manager would have done so (and even more unlikely that if, for whatever reason, he had done so, it would not have been documented and retained on the tenancy file). 232Mr Maroya sought to draw an adverse inference from the fact that in Mr Wellner's affidavit evidence there was repeated reference to a tenant's request for a life tenancy (referring to paragraphs 14, 17, 19 of Mr Wellner's affidavit sworn on 4 August 2009), as suggesting a distinction between an offer made by Mr Wellner of such a tenancy (it being the Kopas' case that the life tenancy was offered to, not requested by, them). It was suggested to Mr Wellner in cross-examination that this was a misleading way of characterising the events of 29 April 1992. (Mr Wellner, it seemed to me, did not immediately grasp what was being suggested - namely, that his affidavit had been carefully crafted to avoid an admission that he had offered a tenancy. I think at this point, as elsewhere during is cross-examination, he was at cross-purposes with the cross-examiner.) I do not consider that, read as a whole, the affidavit suggests that it was drafted in such a fashion. (Indeed, it might suggest an assumption by Mr Wellner, consistent with his evidence that he has never offered a tenant a life tenancy, that if any issue as to a life tenancy had been raised it must have been at the suggestion of the tenant.) In any event, when pressed as to this, Mr Wellner's evidence was quite clear - put simply, in his 35 years in practice he had not been privy as agent to any arrangement whereby a residential tenancy lease was granted on a life tenancy arrangement. 233It was suggested that Mr Wellner had given contradictory evidence in cross-examination (namely that he had been "intimidated" by Mr Baker at the Tribunal on 14 December 2005 and then, when asked about that 'intimidation', proceeded to qualify his answer, culminating in a contradiction of himself that he had not been intimidated, but, instead "surprised...but totally confused". It was noted that there was no mention in Mr Wellner's affidavit of any 'intimidation' by Mr Baker. That submission seems to have been made without the benefit of the transcript, my reading of which (supported by reference to my notes of the exchange) is that what Mr Wellner had initially said was that Mr Baker had produced the document "in a way to intimidate me", not that he had been intimidated. I saw nothing contradictory in that evidence. (I am not in a position to make any comment as to the conduct of Mr Baker, though on Mr Wellner's version of events it might be thought he was participating in some form of trial by ambush inconsistent with the manner in which modern litigation is to be conducted.) 234It was submitted by Mr Maroya that Mr Wellner had also carefully prepared his affidavit insofar as he had used the words "do not admit" rather than "deny" in relation to various matters (reference being made to paragraph 22ff of that affidavit). I am not satisfied that Mr Wellner can be taken to have appreciated the formal distinction in pleadings between a non-admission and a denial (and, indeed, his answer in the witness box suggested to me that he thought they amounted to one and the same thing). 235In that regard, Mr Wellner's use of language was the subject of further comment by Mr Maroya. As I apprehend it, it is suggested that the statement in Mr Wellner's "Submission to the Tribunal" in 2006 that "the so called agreement was never brought into force by the Respondent" in some way involved an admission that there was some form of agreement reached (but not one that had in some way been implemented or become operative) (see T 189.22). I note that Mr Wellner spoke with a marked accent, from which I infer that English may not have been his first language. Mr Wellner spoke in a somewhat stilted manner at times (eg T 184 - "Mrs Celemajer did not authorise me of any offer of any life tenancy whatsoever at any time since I know her") and it seems to me more likely that this was an example of stilted or awkward language usage on his part rather than an implicit admission that there was in existence an agreement that he has staunchly (and consistently since it was first put to him in 2005) denied. 236Other matters to which Mr Maroya referred as going to the assessment of Mr Wellner's credibility were his evidence as to the contact he had had with Mrs Celermajer both in general and in the days the days leading up to the 29 April meeting and the role that Mr Rutkowsky (another director of CHPL) played in the giving of instructions in relation to property matters for CHPL (said to be inconsistent or raised for the first time in the witness box); his evidence as to the need for repairs or replacement of the roof (on which he is said to have wavered considerably, conceding at T 190.25 that several letters had been sent to the agency about the state of the roof up to 1991); his evidence as to the payment of rent in relation to the tenancy (about which I think it is fair to say his evidence was very broad brush); the circumstances in which Dr Kopas paid part of the outstanding rent at the 29 April meeting (a matter on which, contrary to the suggestion that Mr Wellner was uncooperative and would make no concessions against the CHPL interests, Mr Wellner was prepared to accept what was put to him by Mr Maroya, saying that he could not recall correctly it was too long ago); the evidence given as to the 1993 termination notice being served by letter addressed to both Dr and Mrs Kopas (and his concession that the addressing of the 2005 notice of termination to Dr Kopas alone had been intentional); and the evidence given by Mr Wellner as to the fact that his signature appeared on the copy of the handwritten document (Mr Wellner again seeming to engage in speculation or surmise, in perhaps similar fashion to his speculation in 2005 as to what the document was). 237While it might be that Mr Wellner could be criticised for engaging in speculation as to various of the matters (including why it was that documents were at times issued to both Dr and Mrs Kopas), it seemed to me that in general what Mr Wellner was seeking to do was to answer the questions put to him to the best of his recollection after many years and in circumstances where he is no longer with the agency or practising as a property management agent. The reason Mr Wellner was so adamant that the handwritten document could not have been a record of a discussion in late April 1992, as opposed to some other time, was not clear to me. However, it seems to me that Mr Wellner's evidence and his conduct at the Tribunal in 2005 (and earlier in issuing the 1993 notice of termination, albeit in forwarding it to both of the principal occupants of the unit) is consistent with Mr Wellner's denial that he had signed the 3 page handwritten document and that he had offered or agreed to a life tenancy in respect of the premises. 238As to the suggestion as to how his signature might have ended up on the document when he says that he had not signed it, a possibility that Mr Wellner readily conceded had not been in his mind in 2005: Q. This surmisal was not something that you had in mind in 2005, was it? A. Not at that time, no. At the time I did not know what it was. All I knew was that I never signed this particular document. , it seems to me that (even apart from the fact that the surmise hardly involves a startling suggestion - it being the forensic expert's opinion, and not particularly novel, that one could readily achieve such a result by a copy and paste exercise), this is consistent with Mr Wellner being genuinely confused as to how a document he did not sign could be produced with his apparent signature on it. 239While I accept that there is no evidence from which I could conclude that a cut and paste exercise was carried out by one or more of the Kopas family in order to create the document on which they now rely, it nevertheless seems to me that there are only two sensible possibilities consistent with the conclusion I have reached (ie the conclusion that the copy document was not signed by Mr Wellner as a record of any agreement reached with Dr and Mrs Kopas on 29 April 1992) - either there was some form of documentary manipulation (by one or more of the Kopas family) to create a false document or else Mr Wellner signed something that he believed was no more than a record of discussions and not intended by him to have binding force (nor treated subsequently in a fashion that suggested it did have any binding force). Either way, the document in my view does not constitute a record of a binding agreement. Remaining real estate agency witnesses 240Both Mr Owen and Ms Kwawegen have left the Raine & Horne Bondi Beach agency - Mr Owen in 1998 and Ms Kwawegen in 2001. Mr Owen has not been involved in property management since 1998. They have no interest in the litigation and there seems no reason not to accept their evidence (relevantly, as to the unusual nature in their experience of a life tenancy in such a situation and that they were not aware at the relevant time(s) of any such agreement). Mr Glatter remains with the agency but had little recollection of events. (Mr Kemeny's evidence was unchallenged. Although Mr Maroya says that there was no evidence as to the practice within the Raine & Horne offices in relation to the retention of documents and the like, the fact that in his considerable experience as a real estate agent Mr Kemeny had not had experience of a life tenancy of this kind and his observation of Mr Wellner's manner in negotiation or dealings in property matters, supports the conclusion that Mr Wellner would not be likely to have entered into an arrangement of this kind with the Kopas family, let alone offered one as Dr Kopas insists he did.)

Issues (i) Alleged 1992 Agreement

• Was any agreement in fact reached on the terms of the 3 page handwritten document? 241The fundamental issue in dispute between the parties is whether a binding agreement came into existence between CHPL, through its real estate agent Mr Wellner, and Dr and Mrs Kopas on 29 April 1992 in the terms alleged by Dr and Mrs Kopas. 242Relevantly, they allege that the agreement was comprised by the three page handwritten document which they claim Mr Wellner signed, together with the one page typed document forwarded to the Tribunal. Not only does Mr Wellner deny having signed the three page handwritten document (and denies that it was in existence at that time, by which I understand him to mean that he was not shown the document at the time - since it is conceivable that Dr Kopas had prepared it prior to the meeting, say for the purpose of setting out what he sought to achieve from the meeting, but without presenting it to Mr Wellner either for consideration or for signature) but Mr Wellner also denies that he was given authority to make such agreement. Therefore, if I were to find on the balance of probabilities that Mr Wellner had signed the handwritten pages, then an issue would arise as to whether he was authorised to do so and, if not, whether it was binding on CHPL. In that regard, Dr and Mr Kopas rely on Mr Wellner's ostensible authority, as CHPL's property agent, to bind it to any agreement reached at that meeting. 243CHPL, in its Defence to the Amended Statement of Cross-Claim (paragraph 13) pleads in further or alternative answer to the claims made therein that the 29 April 1992 document is not enforceable by reason of incompleteness and/or uncertainty, particularising this allegation by reference to the lack of specification of the amount of rent payable or how it is to be determined or for any increases in the term; the lack of specification with requisite certainty as to when rent is to be paid and by reference to what period; and the uncertainty of language such as "appropriate" rent, "promptly", "specified interest", "jointly and/or separately" and "just cause". 244The critical factual issue is what happened at the 29 April 1992 meeting. There is a clear conflict on the evidence between the respective parties in this regard, which is compounded by the dispute as to whether Mr Wellner visited the premises on 27 April 1992 to request such a meeting. 245As to the latter, while it seems to me not inconceivable that Mr Wellner might have attended the premises to suggest a meeting, there is no evidence that this was how he would ordinarily arrange such a meeting (as opposed to doing so by telephone). That said, there seems little reason for Dr and Mrs Kopas to have invented a visit (other than to support their contention, not ultimately pressed with the force that it was initially pleaded, that Mr Wellner did so to plead with them in relation to a meeting or to suggest that there was some anxiety on the part of the landlord/agent to reach an agreement with them). Somehow a meeting must have been arranged, since it is not suggested that Dr and Mrs Kopas arrived at the Raine and Horne premises unannounced on 29 April 1992 and just happened to encounter Mr Wellner. It may be more likely that they would remember an occasion of this kind than Mr Wellner (on the assumption that tenant meetings were simply part of a busy property management practice at that time). 246In any event, I do not consider that anything turns on this because even if Mr Wellner did visit the premises on 27 April, I do not accept that it is likely that he 'pleaded' with Dr and Mrs Kopas to attend the meeting and to resolve matters. Mr Wellner did not strike me in the witness box as someone inclined to 'plead' for favours. He was businesslike and generally definitive in his responses in the witness box. Mr Wellner did not appear to be uncomfortable during cross-examination. He was unwavering in his denial of the 1992 agreement and dismissive outright of the suggestion that he had signed the document. Mr Wellner was described by Mr Kemeny as a tough negotiator and I would accept that although a general description, it is one based on Mr Kemeny's observation of Mr Wellner over a long time. 247Moreover, at that stage it seems to me more likely that Mr Wellner would have considered that was in a position of bargaining power, since CHPL had the benefit of the Tribunal orders for possession and the most that Mr Wellner is likely to have thought needed to be negotiated as at 27 April 1992 were the arrangements for vacation of the premises. Even if, by then, Mr Wellner was aware of Dr Kopas' Tribunal claim for compensation in relation to the roof, it is unlikely that this would have been of concern to him given his awareness of the Tribunal limit on monetary compensation. Further, if there were any threat to commence other civil litigation there is still nothing to suggest that Mr Wellner would have regarded Dr Kopas as having a substantial claim (a claim for refund of rent paid over the entire term of the lease, even had Mr Wellner been aware of it, seems rather of an ambit claim in circumstances where the family had had the benefit of occupation over the relevant period and there was no suggestion that Dr Kopas had made Mr Wellner aware of any more substantial property damage claim) - furthermore, if the order for possession were to stand then there would not be any immediate need for the roof to be repaired in order to meet a demand by Dr Kopas of that kind and, in any event, if there was an insurance claim available to meet that cost then the liability of the landlord would be covered. Hence it is hard to see the basis for any anxiety or pleading on Mr Wellner's part. 248Therefore, it seems to me unlikely that Mr Wellner would have been in the position (whether on 27 April or on 29 April 1992) where he saw any urgent commercial imperative to reach an agreement with Dr Kopas and his wife for them to forego any compensation claim (or that he should do so, as the handwritten document would suggest, on disadvantageous terms for the landlord). By contrast, Dr Kopas and his wife were in a far less secure position - orders for termination of the lease and for possession of the premises having been made (and, by then it would seem, Dr Kopas having been made aware that he had not been entitled to withhold rent as he had done). The fact that Dr Kopas attended the Raine & Horne offices with a substantial sum (partly in cash) for payment of the arrears suggests that he was aware that he would need to make good the arrears if he were to be permitted to remain in the premises (and it is hard to see that he could have had any comfort at that stage that he would be permitted to do so). 249As to whether the arrears were paid at the outset of the meeting or only after an agreement was reached for the rescission of the order for possession (whatever that agreement may comprise), there is nothing other than Dr Kopas' word against that of Mr Wellner. Is it objectively more likely that Dr Kopas would have parted with the money for the arrears before securing some form of agreement or that Mr Wellner would have insisted on payment before any negotiation? The description of Mr Wellner would suggest the latter but in the absence of any evidence as to how the discussions progressed between the three persons it is difficult to say that one version of events is the more credible than the other. Mr Wellner accepted that what was put to him in cross-examination might be right, given the passage of years since events occurred. Ultimately, I do not think anything turns on this because even if Dr Kopas' account is accepted on this point the payment of rental arrears is not something consistent only with the handwritten document - it is equally consistent with the agreement that was reached having been as set out in the typed one page document: for the withdrawal of Dr Kopas' compensation claim and the agreement of CHPL, through Mr Wellner, not to enforce the order for possession. 250It is consistent with Dr Kopas' earlier withholding of the rent, however, that what he was seeking at the late April meeting was not an agreement as to the term of his tenancy but an agreement for the repair of the roof and to be permitted to remain in possession of the premises at all. In those circumstances there is no logic to the alleged offer by Mr Wellner on behalf of CHPL of a life tenancy. In cross-examination, Dr Kopas accepted that as at March/April 1992, his attitude was to the effect "I'm withholding the rent. You repair me the roof, I'll pay the rent'." As Ms Sibtain points out, this is the arrangement in effect recorded in the 30 April 1992 letter alone. 251For CHPL, a number of factors are pointed to as indicative that there was no 1992 Agreement comprising the 3 handwritten pages, including the form and content of the alleged agreement; it being handwritten and not witnessed; the bizarre language of the document; the improbability of a life tenancy being granted; its extraordinary terms; the circumstances leading up to its alleged execution; the delay in reliance by Dr and Mrs Kopas on the alleged agreement; and the lack of corroboration of the existence of the alleged agreement in any document prior to 2005. 252A number of those factors relate to the content and form of the document, which brings me to the terms of the handwritten document itself. I accept the submission made by Counsel for CPHL (both Mr Marshall SC and later Ms Sibtain) that the alleged 1992 Agreement is in extraordinary terms. It seems to me that it is inherently improbable that Mr Wellner (or any professional property managing agent) would have signed a document in those terms. Mr Maroya submits that the language of the document (flamboyant, and nebulous in places, as he concedes it to be) must be read having regard to the fact that it was prepared by a layman - and notes that the terminology used by Mr Wellner on occasion is also not particularly formal (such as when he sought an amendment to a Tribunal application to seek an order that the tenant "get rid of" the dog). However, the informality of the language is one thing; the content of the so-called agreement is quite another. For a start, Mr Wellner knew what a life tenancy was and so it might be expected that if others incorrectly referred to a 'rest of your lives' tenancy he would correct it to avoid confusion. Furthermore, the suggestion by Mr Maroya that Mr Wellner had a desire to put matters to bed (T 240.50), and hence would be prepared to accept oddity or flamboyance of language in the handwritten document, seems to hark back to the alleged anxiety to resolve matters, of which I am not persuaded there is any compelling evidence. 253For a start, while I accept that the notion of a life tenancy is not per se unusual, it must be remembered that this is a life tenancy purportedly granted to persons not related to the lessor (and who had apparently not proved to be complacent or non-complaining tenants up to that point) who could have had no reasonable expectation of a life tenancy and for whose benefit the lessor would have had no particular reason to grant a life tenancy. At the time of the alleged agreement, Dr and Mrs Kopas were in their 40's and Dr Kopas accepted he was younger and fitter. It might be expected that a life tenancy would therefore be of no little duration. 254The unusual nature of such a tenancy is illustrated by the evidence given by Mr Kemeny, the managing director of the Raine & Horne agency at the relevant time (who has held a real estate licence for about 35 years), that he has not come across a single instance of a life tenancy having being granted to, or sought by, a residential tenant (2 May 2008 affidavit paragraph 8). Mr Kemeny went on to explain what in his view would be the significant restrictions for a landlord in granting such a tenancy. I do not place weight on Mr Kemeny's opinion in that regard, sound as it may well be. Rather, it seems to me to be a matter of common sense that the grant of a life tenancy to an unrelated person in these circumstances (and particularly without very clear provisions as to rental increases and the like) would be surprising. 255Similarly, Mr Wellner (at paragraphs 18-19 of his affidavit) deposed that in 35 years in property management he did not encounter any instance where a tenant of a residential property had requested a life tenancy for the property or where one was offered by a landlord. 256(The evidence of each of Ms Kwawegan, Mr Owen and Mr Glatter as to the fact that none had experience of a situation in which a life tenancy had been sought or granted in respect of a residential tenancy, evidence which I have no reason not to accept, I nevertheless rely on only to the extent that it suggests that had they been told of the existence of a life tenancy in favour of Dr and Mrs Kopas or seen any document relating to such a tenancy they would have been likely to remember it (since they have a lesser degree of experience in property management than either Mr Kemeny or Mr Wellner).) 257There is no suggestion in this case that CHPL (or Mrs Celemajer) was in the habit of granting life tenancies or had done so for any other tenant in the building - yet, if the agreement is as it is phrased, this was an offer made by the landlord to Dr and Mrs Kopas. There seems to me to be no commercial justification for the landlord to have made such an offer in this instance (the suggestion that this would remove the risk of periods in which the building would be untenanted - put by Dr Kopas in the witness box - seems to me to be an unlikely motivation to agree to a life tenancy; there must be such a risk in any tenancy arrangement and yet there is no suggestion that it is normal practice for landlords to seek to exclude such a risk by offering life tenancies). 258Furthermore, the terms of this purported life tenancy themselves are extraordinary - not only is the tenancy said to subsist beyond the lives of the life tenants, but the rent is simply specified as the 'appropriate' rent (with no mechanism for its determination) and provision for it to revert automatically to $93 per week in the happening of events that themselves are not clearly articulated. (Dr Kopas said in the witness box "Our agreement was that the appropriate rent would be decided according the condition of the flat" T 83, though this was not stated in the handwritten document.) 259I find it extremely hard to believe that any professional real estate agent with experience in the leasing and managing of residential property (let alone someone tough as nails as Mr Wellner was said to be) would have committed a landlord to such an agreement. 260Mr Maroya submits, in effect, that the seemingly penal parts of the document (in Part (C)) could be ignored or not enforced. However, the very presence of those clauses makes it impossible to accept that someone in Mr Wellner's position would have agreed to such a regime (whether or not it might ultimately have been enforceable). 261Some of the features of the document might indeed be able to be dismissed as referable to the fact that it was negotiated by non-lawyers (and it is certainly consistent with preparation by someone with an emotional investment in the dispute). However, that begs the question as to why Mr Wellner would have agreed to enter into an agreement with such terms. 262Dr Kopas said that Mr Wellner had telephoned Mrs Celemajer for instructions 3 or 4 times during the course of the meeting. The evidence of Mr Wellner, supported to some extent at least by Dr O'Sullivan's evidence, is that this did not happen and it seems unlikely from his account of the interaction with Mrs Celemajer that this occurred. It seems to me far more likely that Mr Wellner would have had authority to agree to matters with tenants within a particular range without the need to obtain specific instructions. However, I very much doubt that the grant of a life tenancy on such extraordinary terms would have fallen within the scope of Mr Wellner's ordinary instructions or authority - unless he had been given carte blanche to deal with tenancy matters and there was no suggestion that this was the case. 263Mr Maroya submitted that weight should not be placed on Mr Wellner's evidence in the witness box that he had instructions not to telephone Mrs Celemajer (given that this evidence emerged for the first time in cross-examination and was not referred to in his affidavit). In that regard, Mr Wellner is not a party to the proceedings and presumably his affidavit contains the responses he gave to questions put to him - the question as to what instructions he was given in relation to contact with Mrs Celemajer is may not have been something which occurred to anyone to ask prior to Mr Wellner giving evidence in the witness box. (It seems to me that this is less of an issue than the late emergence of the evidence from Dr Kopas, for example, as to the call he says he received from the Tribunal to alert him to its monetary limit - since Dr Kopas as a party has been intimately involved in the preparation of the case over the years and must be assumed to have turned his mind well before the hearing to all of the matters relevant to his case,) In any event, whether or not Mr Wellner did telephone Mrs Celemajer, I do not think I can infer that she gave him instructions to sign a document in the terms of the handwritten document (and, for what it is worth, the expression of her desire, attested to by Mr Michell in 2005, to make testamentary provision for her grandchildren in relation to this block of units seems inconsistent with any understanding that unit 3 is encumbered with a life tenancy of uncertain duration). 264The factors that particularly weigh against the conclusion that there was a binding agreement reached at the meeting on 29 April 1992 in the terms of the 3 page handwritten document prepared by Dr Kopas are: (i) the unconventional (and to my mind extraordinary) nature of its terms - as noted above, I think it inherently unlikely that a landlord would agree to grant a life tenancy (to persons then in their 40's) with uncertainty as to an essential term such as the rent and with the penalty provisions contained therein (such as the risk that if the tenant formed the view that there had been an inappropriate offer of rent there might be a reversion to a much lower (and I would infer less than market) rate of interest), even leaving aside the language employed in the document itself; (ii) the fact that it was regarded as an important document by Dr and Mrs Kopas and they did not trust Mr Wellner, nevertheless they did not press (until 2005) for the document to be more formally recorded (whether by way of the provision of a lease in registrable form or even by a typed up version of the document being formally executed) and did not chase up Mr Wellner for a typed document even though it is now said that he was "supposed" to type it up; (iii) again, notwithstanding that it was regarded as an important document, Dr Kopas seems to have been remarkably unconcerned to keep either the notes of the contract (which he says he tore up) or the original document he says he was given by Mr Wellner (explaining the destruction of the original photocopy on a practice of doing so with documents that turn yellowish over age); [I interpose to note that it seems to me that the most likely explanation for what occurred, consistent with Dr Kopas evidence of tearing up the notes of the contract, was that Dr Kopas had made notes prior to the 29 April meeting, perhaps along the lines of the 3 page document, and that he later tore them up once the one page typed document was signed on the basis that it was that document that recorded the parties' agreement - but if so then the current photocopy of the 3 page notes must be a document created at a later time (which Dr Kopas denies) and the only explanation for Mr Wellner's signature must be that it was appended in some fashion by Dr Kopas (which was not directly put to him)]; and (iv) most significantly in my view, the fact that no reference was made to this agreement, after the 29 April meeting, on occasions on which it might be expected that reference to it would be made - such as when the 1993 Notice of Termination was issued inconsistently with the terms of the handwritten document and, more importantly, in 2000/2001 when Dr Kopas was asked by the Tribunal Member to identify the agreement on which he was relying (after having been told, in effect, that one cannot now conduct trial by ambush). (True it is, that Dr Kopas says that he informed Mr Owen of the agreement (and showed him a copy) in 1996. However, I accept Mr Owen's evidence that had he been told of such an agreement (or shown it) he would have regarded it as so unusual that he would have remembered it. Whether or not the grant of a life tenancy per se is unusual, I accept that Mr Owen would have regarded it as unusual having regard to his experience.) 265As to (i), the unusual flavour of the alleged agreement is apparent from the text as set out earlier. In particular, reference was made to statements such as: It [this Agreement] is not done as a ruse to weasel out of financial losses and "Have the cake and eat it" by acting in bad faith in the future and If Prop/Agent seeks to invalidate/renege &/or Terminate the Agreement/Settlement, with deception, trickery, loophole, technicalities or the like, in any court, it will be deemed "Bad Faith" & "Slight of Hand", and a breach of this agreement and the spirit of the agreement." (clause (C)(5)) 266Weight is placed for CHPL on the fact that the alleged 1992 Agreement speaks of "the Rest of Kopas' Life" tenancy and "Rest of their Lives" tenancy but does not use the term "life tenancy". While Dr Kopas may not have known the meaning of that term (he says that he did not know the term "life tenancy" until 2005 when he went to Legal Aid - T 31), Mr Wellner as an experienced real estate agent must have known the term. I accept that in discussion it is possible that Mr Wellner might not have used the term (although this seems unlikely if, as is alleged, it was he who made the offer of a life tenancy), he would surely have known enough to correct the wording used in the handwritten document had he been asked to sign it as a binding agreement. 267Similarly, the seemingly uncommercial penal provisions contained in the so-called agreement make it objectively unlikely that a landlord would agree to them (whether or not they were likely to be enforceable). So, for example, clause (C)(6) (which provides that if the landlord takes any action seeking to terminate the lease this is a breach) and clause (C)(4)(ii) (which applies if the landlord or agent tries to enter the property without permission or impedes access, use and enjoyment of the property) each go on to provide that such conduct "and will result in Automatic reversion of rent to $93 [per week] for the rest of the tenancy, if Kopas so wishes." . Even more astonishing, in my view, is clause (C)(3) which provides that in certain circumstances failure of the agent or landlord to accept "appropriate rent" will not only be a breach but will amount to "an offer of free rent - gratis - for the rest of the tenancy ("Rest of Lives") which Kopas will Automatically accept " . 268Clause (C)(5) provides that if the landlord seeks to invalidate/renege and/or terminate the agreement "with deception, trickery, loopholes, technicalities" , the tenant can send a letter of demand "for restitution of all rent paid since 1984 & specified interests (orally), to the date of the breach, regardless [of] the time passed & costs & unspecified substantial damages". The notion of a real estate agent readily agreeing to such a clause on behalf of a landlord seems ludicrous. 269As to the question of certainty of the agreement, there is also a difficulty in that, on its face, it does not purport to encompass all the terms of the agreement but rather refers to an oral component, the content of which has not been elucidated beyond the suggestion that part of this related to who was to determine the appropriate rent (T 83). 270As to (ii), the three page document was never typed nor was Mr Wellner's signature witnessed from anyone in the office (though Dr and Mrs Kopas suggest that this was due to the lateness of the meeting). No request seems to have been made for a typed or counterpart document to be provided. In cross-examination Dr Kopas (T 71.46) suggested that Mr Wellner had been to provide a typed copy (though this was not raised in Dr Kopas' affidavit evidence and was not put to Mr Wellner in cross-examination): Q: But you say there was no step taken to type the other pages? A. The three pages, Alex was supposed to type . He was to send a copy and he never did it. The document with his signature was good enough. Q. You just said in evidence that Alex was supposed to type it and send it to you, is that correct? A. Yes. Q. When have you ever said that before today, in writing? A. I might not have said that before in writing, but it is irrelevant, because at the end of the day, I had a document with his signature, and that's what counts. 271As to (iii), Dr Kopas' evidence in the witness box seemed to be that he had not only torn up the notes he made of the contract in the 29 April meeting: Q. But you say you made notes during the meeting which you tore up at some stage? A. Well, we wrote the contract, I tore it up. but had also thrown away the original photocopy of the agreement. Earlier in the proceedings, it seems that Dr Kopas said he had destroyed the original photocopy in 1996 because it was getting faded and was poor paper (transcript 6 March 2008 at p9). A similar explanation was given at T 46-47 before me. This is submitted by Ms Sibtain to be one of the implausible aspects of the case. It was noted that Dr Kopas had retained the one page typed document supposedly photocopied at the same time (the original copy of which, it was submitted, was the top document in Ex K) and reference was made to the exchange at T.127. 272It is submitted by Ms Sibtain that the fact that Dr Kopas refused to answer on the ground of legal privilege leaves the letter uncontradicted, Dr Kopas being the only person who could have said that Mr Baker had mistakenly conveyed that information to the plaintiff's solicitors and therefore the evidence given by Dr Kopas in the witness box as to the reason for destroying the original photocopy should be rejected. It is submitted that the real reason that the original photocopy has never been produced is that it does not and did not ever exist and that the photocopy in evidence is the result of some form of documentary manipulation or cut and paste in order to place Mr Wellner's name on the foot of the document. (Forensic evidence adduced by CHPL simply confirmed that without the original or the original photocopy it could not be determined whether this was a true copy of the original.) 273As to (iv), it does not seem to be disputed that the first time the copy of the handwritten document was produced was on the occasion before the Tribunal when Dr Kopas' then solicitor (Mr Baker) produced it to Mr Wellner on 14 December 2005. Dr Kopas believed that this took place in the conciliation room at the Tribunal. A copy was not provided to CHPL's lawyers until 22 December 2005. 274It is submitted that if there really was such a 1992 Agreement it is extraordinary that it was not called in aid earlier and that the explanation in paragraphs 122-123 of Dr Kopas' 2009 affidavit (that Mr Wellner had "the collateral purpose of ascertaining if I still possessed my copy of the 1992 Agreement") makes no sense. I agree. 275There was a suggestion that reference had been made to the 1992 Agreement in the submission made by Dr Kopas to Member Dellar in 2002 but it seems that what was in fact referred to was the single typed page. Reference is made by Ms Sibtain to T 129-131 and to the acknowledgment by Dr Kopas that the later submission of 10.01.03 (Ex L) referred only to the typed letter of 30 April 1992: Q. And the document that you are talking about A. Was the page number 4. [ie the 30 April 1992 letter] Q. And that's the only document you handed up to Mr Dellar, page number 4, isn't it? A. That's the only document. We didn't want that's the only document. We didn't want to hand any other thing. 276As a matter of logic, Dr Kopas would have had no need to resort to the strategy of setting up Mr Wellner or attempting to catch him in a lie - the agreement, if it existed, would speak for itself whether or not Mr Wellner had denied it and the suspicion that Mr Wellner was on a fishing expedition also seems to be beside the point - either there was an agreement or there was not. 277Mr Maroya submits that the 2001 Tribunal application was not in relation to the quality of the tenancy and hence that it was not necessary that the 1992 agreement be disclosed at that time. In that regard, Mr Maroya places weight on Mr Wellner's concession in cross-examination that the 2001 Tribunal proceedings were "not a question about a tenancy". However, I do not accept that they were proceedings in respect of which the 1992 Agreement, had it existed, was wholly irrelevant. Dr Kopas was initially seeking orders for compliance with the 2000 Agreement (which on his case operated as an amendment to the 1992 agreement) but when asked to identify the agreement on which he relied for his rights he produced only the 30 April one page document: he then pursued a claim for non-economic loss without apparently relying upon the very agreement under which he would arguably have had an entitlement to support such a claim. (In passing I note that insofar as Mr Wellner made any concession as to the matters in dispute in the 2001 Tribunal proceedings, that is something on which I am in a position to form my own view. Mr Wellner's view on this issue is not relevant to the issues for determination.) 278I consider that the bringing of the application solely in Dr Kopas' name and the failure to refer to the 1992 agreement tells against Dr Kopas case. Not only was there no disclosure of the fact (if it be the case) that Mrs Kopas was a joint tenant but also Dr Kopas did not disclose the 1992 agreement when directly asked to identify the agreement on which he relied (even though the alleged 1992 agreement contained provisions for the carriage of repairs and on his version of events was the only lease agreement on foot, hence his claim must have been based on that agreement) and even though the proceedings by CHPL would seem to be in breach of the provisions of the 1992 agreement. The later reliance on the 2000 agreement also made no reference to an earlier 1992 agreement. 279I note that Mr Maroya relies on the fact that after 1992 there were instances where Notices of Termination or other correspondence were addressed to both Dr and Mrs Kopas and that the rent ledgers made reference to both of them (as indicative of a recognition by the landlord's agent that there was in fact an agreement under which both of them had the status of tenants). Mr Wellner's evidence was that this could have been a matter of courtesy (T 49); it might also have been an oversight or mistake on the part of the agency. An explanation proffered for the rent ledgers is that rental payments were received at least on occasion from a joint account and it was surmised that the computer records had been changed to reflect that fact. 280It is submitted by Ms Sibtain that the rent ledgers (at tabs 112, 116 and 130 of the tender bundle) show the tenant as Dr Kopas alone and that the reference to both Dr and Mrs Kopas is a reference to the payer of the rent, reflecting the fact that rent is commonly paid from cheques drawn on a joint bank account (referring to T 45.42). 281Whatever be the case in relation to the agent's computer records, I do not consider that the (inconsistent) communications and correspondence with both Dr and Mrs Kopas in relation to the tenancy (as opposed to with Dr Kopas alone) is sufficient to overcome the factors itemised above which point to the conclusion that there was no 1992 agreement as alleged. 282I also note that, despite the importance now said to have been placed on Mrs Kopas herself becoming a tenant (for life), there was no reference to this in the alleged 2000 Agreement or in the later 8 May 2001 application by Dr Kopas to rely on the 2000 Agreement. Nor is there a reference to it in the statutory declarations of Dr Kopas and David Kopas in relation to that application (Exhibits D, E, F). (Ms Sibtain refers to the cross-examination of Dr Kopas on this issue at T 101-104). 283Mr Maroya also relies on the fact that after the alleged agreement was executed, the rent arrears were paid and Dr Kopas forewent any claim for compensation in relation to the roof damage. For CHPL it is suggested that the so-called "roof" claim was simply an attempt to obtain leverage in the face of the difficult position Dr Kopas was in by reference to the rental arrears and the order for possession that had been obtained. While I accept that there was a bona fide concern in relation to the roof damage (and Mrs Kopas spoke with some emotion as to the damage sustained to her antique lace items), the fact that it was not pursued could equally be consistent with CHPL allowing Dr and Mrs Kopas to remain in occupation of the premises without that occupation necessarily being pursuant to a life tenancy. 284Mr Wellner's response to the Tribunal in 2005 when he was shown the document with his signature is not surprising if, as his evidence suggests (and as Dr Kopas seems to have been anxious to ensure would be the case), he was confronted without warning with a handwritten document the provenance and content of which he had not had the opportunity to verify. At most it seems to me that Mr Wellner's response suggests that he would not be able to deny he may on occasion have signed (perhaps by way of identification) notes of discussions with Dr Kopas - but it does not seem to me to warrant a finding that his denial in relation to the agreement is false. (Nor does the speculation that it might have been signed in a previous "conciliation" assist, because although he was not involved in any formal conciliation with Dr Kopas prior to 1992 it is not clear when he gave the answer in 2005 that he was referring to a conciliation prior to 1992 as opposed to suggesting that this might have been a document of discussions at some time after 1992 but before 2005; moreover it is not clear that his reference to a 'conciliation' was meant to be a reference to a formal conciliation discussion. As I understood Mr Wellner's evidence, what he was surmising was that this could have been a document of the kind that he might have signed as a record of a discussion but that he did not sign anything of this kind as recording an agreement (and that would be consistent with his usual practice of putting important tenancy documents into writing). 285I find it inconceivable that if Mr Wellner, as a responsible and professional real estate agent (with no apparent personal benefit to be obtained from the grant or otherwise of a life tenancy or the resolution of the tenancy disputes with Dr and Mrs Kopas), had left the meeting on 29 April 1992 knowing that he had offered a life tenancy to Dr and Mrs Kopas and that it had been accepted by them, that he would not then have proceeded to draw up a formal tenancy agreement to that effect. 286For CHPL, reliance was placed on the evidence of Mr Kemeny (the managing director of the business known as Raine & Horne Bondi Beach from about 1989 to 2004) whose affidavit of 2 May 2008, on which he was not cross-examined, deposes to experience holding a real estate licence for about 35 years and the practice within the office of Raine & Horne Bondi Beach during the time that he was managing director. At paragraph 10 he deposes to the practice within the office that it is the landlord, through the property manager that ordinarily prepares any lease documentation in relation to residential property and that invariably it is done by execution of a standard printed form document. He does not recall any instance of such a document being prepared by the residential tenant rather than by or on behalf of the landlord and says he is not aware of any instance of a handwritten lease document being executed. In his view, preparation of a tenancy-related document in the manner of the handwritten 3 page document as it appears on its face would be contrary to prudent agency practice and the practice within Raine & Horne Bondi Beach while he was managing director. 287Mr Kemeny said (in paragraphs 6-7 of his affidavit):

6. I had never seen the handwritten copy document or the transcript version before it was shown to me on 17 April 2008. In fact, I had never before seen a document even remotely like that document in its terms. I regard the document as being extraordinary in its language and content and I am quite certain that I would recall such a document if I had previously seen it.
7. Similarly, the first time that any mention was made to me of the claimed existence of such a document was in the last year or two, during the current court proceedings. At no time before then was mention ever made to me, including by any property manager working for me at Raine & Horne Bondi Beach, of such a document. 288Mr Maroya submits that there was no evidence as to the management of files within the Raine & Horne offices. However, Mr Kemeny's evidence as to office practice suggests that if Mr Wellner had executed the handwritten document as a tenancy agreement then it was contrary to the then managing director's office policy and prudent office practice. Moreover, it would have been contrary to Mr Wellner's usual practice, to which he deposed in paragraph 29 of his affidavit, of ensuring that important tenancy documents were typed and signed in the presence of a witness with the witness also signing the document. There is no reason put forward (other than the alleged lateness of the hour at which the meeting concluded) to explain any deviation from standard practice in this instance. 289On the Kopas' case, either Mr Wellner or someone else must have destroyed or concealed the original of the document as it has not been produced. To the extent that reliance is placed on knowledge by Mr Owen and Ms Kwawegen of the existence of the agreement that knowledge can only have been obtained by them from a document on the file or what had been said to them by Dr Kopas himself (thus self-serving). They deny such knowledge. Ms Sibtain submits that if the document was on the file for Mr Owen and Ms Kwawegen to know of, then it is inexplicable that Mr Kemeny (as the managing director of Raine & Horne) would never have seen it. As noted earlier, insofar as Dr Kopas' version of events requires me to assume that a practice of concealment and dishonesty on the part of successive professional real estate agents with no apparent personal interest in the proceedings, I am not persuaded that such a conclusion is warranted.

• Conclusion as to existence of agreement in fact 290I am not satisfied on the balance of probabilities that the handwritten 3 page document was signed by Mr Wellner on 29 April 1992 nor am I satisfied that the document records a binding agreement for the grant of a life tenancy to Dr and/or Mrs Kopas. 291I find that the only agreement entered into by Mr Wellner (on behalf of CHPL) on 29 April 1992 was an agreement with Dr Kopas for the withdrawal of Dr Kopas' application for compensation and for the Kopas family to be permitted to remain in occupation of the premises (which the parties sought to achieve by Mr Wellner purporting himself to rescind the Tribunal orders made in the landlord's favour on 16 April 1992), on the basis of Dr Kopas' payment of the rental arrears and Mr Wellner's undertaking that the landlord would effect the roof repairs as soon as possible.
• Authority 292Strictly speaking, therefore, the question of authority to enter into the 29 April 1992 agreement as alleged, does not arise. 293Had I found that there was an agreement reached in fact between Mr Wellner and one or both of Dr and Mrs Kopas on the terms of the 3 page handwritten document, then the question of Mr Wellner's authority to bind CHPL would have arisen. 294The Management Agency Agreement provides strong evidence of a lack of actual authority. Under that agreement the authority of the agency to bind CHPL to a lease was clearly limited to a short term (6 month) agreement. There is nothing to suggest that the scope of that actual authority was widened in the space of just over a year. Mr Wellner's evidence as to the lack of authority or instructions to bind CHPL to a life tenancy is credible. I find there was no actual authority in this case. 295As to ostensible authority, CHPL permitted Mr Wellner to hold himself out to tenants of its property in Rose Bay as having authority to bind it to matters falling within the day to day aspects of property management - so, for example, Mr Wellner (and later other real estate agents) signed notice of rental increases, signed notices of termination, notified Dr and Mrs Kopas of occasions on which access to the premises was required for the purposes of repairs or work to the back yard, signed applications to the Tribunal and attended at conciliation and other hearings at the Tribunal without any suggestion that there was no authority for them to do so. Does this extend to a holding out to commit CHPL to long term tenancy arrangements such as the alleged 1992 Agreement? 296In Freeman and Lockyer (a firm) v Buckhurst Park Properties (Mangal) & Anor [1964] 1 All ER 630, Diplock LJ explained that [at 644]: ... "apparent" or "ostensible" authority, on the other hand, is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted on by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the "apparent" authority, so as to render the principal liable to perform any obligations imposed on him by such contract. 297The test was stated by Diplock LJ [at 646] as follows: It can be summarised by stating four conditions which must be fulfilled to entitle a contractor to enforce against a company a contract entered into on behalf of the company by an agent who had no actual authority to do so. It must be shown: (a) that a representation that the agent had authority to enter on behalf of the company into a contract of the kind sought to be enforced was made to the contractor; (b) that such representation was made by a person or persons who had "actual" authority to manage the business of the company either generally or in respect of those matters to which the contract relates; (c) that he (the contractor) was induced by such representation to enter into the contract ie that he in fact relied on it; and (d) that under its memorandum or articles of association the company was not deprived of the capacity either to enter into a contract of the kind sought to be enforced or to delegate authority to enter into a contract of that kind to the agent. 298In Petersen v Moloney (1951) 84 CLR 91, in considering the circumstance in which a claim for breach of warranty of authority would lie, the High Court commented that in the area of real estate agency, there is limited scope of a real estate agent to make such a warrant of authority, because a real estate agent rarely has any authority to enter into a contract binding upon the principal and that, more often, a real estate agent does little more than represent the principal. Nevertheless it was recognised that there were circumstances in which such a warranty of authority might be seen to have been given - including where a managing agent of real property has authority to enter leases and engage tradespersons. 299Here, the scope of the activities that Mr Wellner (and the Raine & Horne agency) was permitted to do on behalf of CHPL seems to have covered matters not only to do with access arrangements for the premises and rental increases, but appearance at the Tribunal to enter into conciliation hearings and the like. It seems to me that there has been a holding out by CHPL that Mr Wellner (or those after him at the agency who were designated as the property agent) had authority to commit CHPL to matters relating to the tenancy of the property and that in the absence of an express limitation on that authority made clear to the tenant, there was ostensible authority to enter into a tenancy agreement (even one as unusual as the one for which Dr Kopas contended). 300Therefore, had I found that there was an agreement reached for the grant of a life tenancy, I would have found that Mr Wellner had ostensible authority to bind CHPL to its terms (as unusual as they were). 301It is submitted by Mr Maroya that if there were not to be found that Mr Wellner had actual or ostensible authority to enter into the 1992 Agreement on CHPL's behalf, it should nevertheless be found that Mr Wellner's execution of the 1992 Agreement was ratified by CHPL such that the agreement is valid and effectual, as if authorised by the principal in the first place. Again, this issue does not arise. However, for completeness, I note that if in the absence of actual or ostensible authority in the present case I would not have found that there had been a ratification of the agreement by CHPL. 302In Firth v Staines [1897] 2 QB 70 at 75, Wright J set out the three criteria necessary to establish a valid ratification of an agent's act, those being that the agent whose act is sought to be ratified must have purported to act for the principal; at the time the act was done the agent must have had a competent principal; and that at the time of the ratification the principal must have been legally capable of doing the act himself. 303Mr Maroya accepts that in order for it to be said of a principal that he or she has ratified the agent's act, it is necessary to demonstrate that the principal had, at the time of the ratification, knowledge of all the material circumstances relevant to the act in question (including that the principal was apprised of the circumstances upon which to make a decision whether or not to ratify, citing De Bussche v Alt (1878) 8 Ch D 286 at 313); noting that the principal may not close his or her eyes to the obvious (Morison v London County Westminster Bank Ltd [1914] 3 KB 356 at 385.) 304In Harrisons and Crossfield Ltd v London and Northwestern Railway Co [1917] 2 KB 755 at 758, Rowlatt J said that ratification "is implied from or involved in acts when you cannot logically analyse the act without imputing such approval to the party whether his mind in fact approved or disapproved or wholly disregarded the question". This has been cited with approval by the Court of Appeal in Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 at [132]. Mr Maroya also notes that ratification may be implied from acquiescence in conduct, where that acquiescence amounts to an adoptive act (referring to Tobin v Melrose [1951] SASR 139 at 147 per Ligertwood J). 305Here it is said, and I accept, that Mr Wellner (pursuant to the pre-existing agency relationship between CHPL and the Raine & Horne agency) can only have been purporting to act for CHPL; that CHPL was a competent principal and that it was capable of granting Dr and Mrs Kopas the type of life tenancy provided for in the terms of the 3 page handwritten document. However, I do not accept that there was any implied ratification of that agreement, by acquiescence or otherwise, bearing in mind that for such ratification it would be necessary to establish that CHPL was apprised of all the relevant circumstances in relation to the decision to ratify (or had taken steps consistent only with an acceptance of the agreement). 306Mr Maroya submits that the course of conduct after the signing of the 1992 Agreement between Dr and Mrs Kopas and Mr Wellner on behalf of CHPL, during which the substantial terms of the 1992 Agreement were performed, is amenable to characterisation as a ratification of Mr Wellner's agency. It is submitted that one cannot logically analyse the post 1992 conduct without imputing such approval on CHPL's part. I have difficulty with that proposition. 307The acts involved in receipt of rent and repair of the roof (and in permitting the Kopas family to remain in occupation of the premises in April 1992 rather than enforcing the eviction order) would equally be referable to the then existing tenancy arrangements being revived following the agreement comprised in the 30 April letter and no more. 308Insofar as Mr Maroya relies on the absence of any evidence of prompt disavowal on CHPL's part of Mr Wellner's alleged act of agency, there is no evidence to suggest that CHPL became aware of the alleged act (ie the purported conferral of a life tenancy) at any time prior to 2005 (if it indeed became aware of it at that time). Mr Wellner immediately disavowed any such agreement when it was alleged before the Tribunal in 2000 and there is no suggestion that CHPL became aware of that any earlier or had in any way affirmed the existence of a life tenancy (or acted in a way logically consistent only with adoption of such an arrangement). 309Therefore, had I found that the 1992 Agreement was in fact reached by Mr Wellner with one or both of Dr and Mrs Kopas at the 29 April 1992 meeting, then I would have accepted that it was an agreement falling within the scope of Mr Wellner's ostensible authority but that if there were in fact no actual or ostensible authority, then I would not have found that there had been any ratification by CHPL of Mr Wellner's conduct in relation to the entry into any such agreement.

Orders 456For the reasons above, I find for the plaintiff on all of its claims relating to the agreements alleged to have been made in 1992 and 2000 and, relevantly, find that neither of the defendants is entitled to an equitable life tenancy. For the reasons set out in my judgment on the motion to vary, I also find for the plaintiff on the protected tenancy allegation. I therefore dismiss the cross-claimants' claims based on the alleged agreements and for misleading and deceptive conduct and I grant the plaintiff's application for orders for termination of the relevant tenancy agreement and for possession of the premises. I had considered that the following orders would be appropriate in light of my earlier findings, subject to submissions from Counsel as to the final orders and any submissions as to costs, if that be desired, at a convenient time. (1) A declaration that Dr Kopas is the only tenant of the premises described in Schedule A. (2) A declaration that the tenancy of Dr Kopas is pursuant to a common law periodic tenancy on the terms of the holding-over provisions of the residential lease dated 6 January 1984 between Celemajer Holdings Pty Limited and Dr Kopas. (3) A declaration that that the premises described in Schedule A are "prescribed" or "controlled" premises within the meaning of those terms under the Landlord and Tenant (Amendment) Act 1948 (NSW) and that the provisions of Parts 2-5 of that Act apply to those premises (as a consequence of which the Residential Tenancies Act 1987 (NSW) and now Residential Tenancies Act 2010 (NSW) do not apply to the residential tenancy agreement constituted by the tenancy the subject of the declaration in paragraph 2 above. (4) A declaration that there is no "1992 Agreement" as alleged by Dr Kopas in paragraph 6 of the Further Amended Defence of 27 May 2009 and as alleged by Dr and Mrs Kopas in paragraph 4 of the Further Amended Statement of Cross-claim of 27 May 2009. (5) A declaration that Dr and Mrs Kopas do not have an equitable life tenancy in respect of the premises described in Schedule A. (6) An order that caveat AB983341J in respect of the premises described in Schedule A be removed. (7) A declaration that there is no "2000 Agreement" as alleged by Dr Kopas in paragraph 18 of the Further Amended Defence of 27 May 2009 and as alleged by the Dr and Mrs Kopas in paragraph 8 of the Further Amended Statement of Cross-claim of 27 May 2009. (8) A declaration that the Notice of Termination dated 19 October 2005 served by Celemajer Holdings Pty Limited on Dr Kopas was not a valid notice in compliance with the Landlord and Tenant (Amendment) Act 1948 (NSW) . Schedule A The land described in Folio Identifier 3/SP13165 and known as Unit 3/65 Chaleyer Street, Rose Bay, New South Wales. 457Having regard to the findings on the motion to vary I have made orders in different terms in relation to the matters in proposed orders 3 and 8 above and my final orders will be as set out below. (1) A declaration that Dr Kopas is the only tenant of the premises described in Schedule A. (2) A declaration that the tenancy of Dr Kopas is pursuant to a common law periodic tenancy on the terms of the holding-over provisions of the residential lease dated 6 January 1984 between Celermajer Holdings Pty Limited and Dr Kopas. (3) A declaration that that the provisions of Parts 2-5 of the Landlord and Tenant (Amendment) Act 1984 (NSW) do not apply to the premises described in Schedule A by virtue of the operation of s 5A of that Act. (4) A declaration that the Residential Tenancies Act 1987 (NSW) and now Residential Tenancies Act 2010 (NSW) apply to the residential tenancy agreement constituted by the tenancy the subject of the declaration in paragraph 2 above. (5) A declaration that there is no "1992 Agreement" as alleged by Dr Kopas in paragraph 6 of the Further Amended Defence of 27 May 2009 and as alleged by Dr and Mrs Kopas in paragraph 4 of the Further Amended Statement of Cross-claim of 27 May 2009. (6) A declaration that Dr and Mrs Kopas do not have an equitable life tenancy in respect of the premises described in Schedule A. (7) An order that caveat AB983341J in respect of the premises described in Schedule A be removed. (8) A declaration that there is no "2000 Agreement" as alleged by Dr Kopas in paragraph 18 of the Further Amended Defence of 27 May 2009 and as alleged by the Dr and Mrs Kopas in paragraph 8 of the Further Amended Statement of Cross-claim of 27 May 2009. (9) A declaration that the Notice of Termination dated 19 October 2005 served by Celermajer Holdings Pty Limited on Dr Kopas was a valid notice in compliance with sections 56 and 63 of the Residential Tenancies Act 1987 (NSW) . (10) An order under s 64(2) of the Residential Tenancies Act 1987 (NSW) terminating Dr Kopas' lease of the premises described in Schedule A. (11) An order under s 64(5) of the Residential Tenancies Act 1987 (NSW) in favour of Celermajer Holdings Pty Limited for possession of the premises described in Schedule A such order to take effect 90 days from the date of this order. (12) Judgment in favour of Celermajer Holdings Pty Limited for possession of the premises described in Schedule A. (13) Celermajer Holdings Pty Limited have leave to issue a Writ of Possession upon the expiry of the period in order 11 above. (14) Judgment for Celermajer Holdings Pty Limited on the Cross-clam and that the Cross-claim otherwise be dismissed. (15) Celermajer Holdings Pty Limited have leave to file an amended Reply and an Amended Defence to Cross-Claim so that in paragraph 2(b) and 20(b) respectively the reference to s 5A(1)(e) is amended to "s 5A(1)(d) and/or s 5A(1)(f) (but only insofar as sub-paragraph (f) refers to sub-paragraph (d))". Schedule A The land described in Folio Identifier 3/SP13165 and known as Unit 3/65 Chaleyer Street, Rose Bay, New South Wales.

Amendments 17 June 2011 - Revised as referred to in the subsequent judgment of Justice Ward of 14 April 2011 - [2011[ NSWSC 304. Amended paragraphs: [14(iii), (v)], [378], [379], [393], [394], [396], [397], [398] 17 June 2011 - Revised as referred to in the subsequent judgment of Justice Ward of 14 April 2011 - [2011[ NSWSC 304. Amended paragraphs: [406], [410], [411], [412], [415], [446] 17 June 2011 - Revised as referred to in the subsequent judgment of Justice Ward of 14 April 2011 - [2011] NSWSC 304. Amended paragraphs: [453], [454], [455], [456], [457], Schedule A. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2011