Kopas v Celermajer Holdings Pty Ltd

Judgment 1TOBIAS AJA: These proceedings concern a dispute between the applicant, Dr Kopas, who is the tenant of premises in Rose Bay (the premises), and the respondent, Celermajer Holdings Pty Limited, who is the owner of the premises and Dr Kopas' landlord. The litigation between the parties seems to have been going on for a lengthy period of time and certainly since 2005 when the respondent entered into a contract to sell the premises for the sum of $310,000. The contract required vacant possession to be provided on completion. 2The evidence in the present application establishes that that contract is still on foot. It is accepted by the respondent that the purpose of the sale is to liquidate some form of trust and transfer its assets to the grandchildren of Christine Celermajer. In furtherance of that objective, the premises is to be sold to one of those grandchildren. 3The primary judge, Ward J, commented at [164] of her judgment of 9 February 2011 (Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40) that the sale was pursuant to a reorganisation of the Celermajer family affairs but that it was not suggested that the purchaser of the premises was proposing to occupy them. Rather it would appear that it was proposed to rent them, but for a larger rent than that which is currently being paid by Dr Kopas. In this respect the rent that he is currently paying is $270 per week, whereas the weekly rent paid by tenants of the other three units in the block, all units being identical in size and layout, varies between $445 and $480 per week. 4The primary judge ultimately made an order that the respondent was entitled to possession of the premises and in the course of so doing, having set out the circumstances relating to Dr Kopas' occupation of the premises with his family, noted at [455] of her reasons that she would order that the Tenancy Tribunal, before whom there were proceedings against Dr Kopas, be prohibited from making an order requiring Dr Kopas to vacate the premises earlier than ninety days after an order for possession was made by that Tribunal. In other words, her Honour apparently considered that Dr Kopas and his family should have ninety days minimum in which to vacate and find alternative accommodation. 5Having lost before the primary judge an appeal was instituted by Dr Kopas to this Court from the formal orders made by her Honour on 14 April 2011 (Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 304). That appeal was heard on 9 December 2011. On 29 March 2012 the Court comprising Campbell JA, Young JA and myself gave judgment granting leave to appeal but dismissing the appeal with costs (Kopas v Celermajer Holdigns Pty Ltd [2012] NSWCA 53). At [42(3)] Young JA, with whose judgment Campbell JA and myself agreed, extended the present stay of the order granting possession of the premises to the respondent for a further forty-two days from the date of judgment on the basis that the respondent would be at liberty to issue a writ of possession on or after the forty-third day. Those forty-two days are to expire on 11 May next. 6On 2 May 2012 Dr Kopas filed a notice of motion in this Court seeking an order that Order 3 made by this Court on 29 March 2012 be stayed for a further period of six months or until further order of the Court. That motion was supported by an affidavit sworn by Dr Kopas on 1 May 2012 in which he set out the steps taken either by himself or on his behalf by a Ms Greaves, a co ordinator at the Kings Cross Community and Information Centre, to obtain public housing from New South Wales Housing as well as the possibility of private housing. The long and short of their efforts was that Dr Kopas' request for housing assistance, was accepted on 17 April 2012 and his name placed on the New South Wales Housing register as and from that date. 7The letter to Dr Kopas' wife from Housing New South Wales of that date indicates that when premises are available the Kopases will be offered a premises suitable for their household in the CS2 Eastern Suburbs allocation zone as long as they are still eligible for social housing at that time. The reason why housing was sought in that zone relates to Dr Kopas' relationship with the Jewish community of the Eastern Suburbs of which he has been a member for many years. In this respect the evidence establishes that Dr Kopas would suffer not only emotionally but spiritually in the event that he was cut off and isolated from the Jewish infrastructure of the Eastern Suburbs with which he has been associated for a long time. 8The respondent opposes any extension of Order 3 made by this Court on 29 March 2012. It accepts that the only prejudice it will suffer from any further stay of the issuing of a writ of possession is the difference between the amount of rent that is currently being paid by Dr Kopas of $270 per week and the rental that would be expected to be obtained for the premises, if a tenant was paying a full market rent, of something between $445 and $480 per week. 9The respondent further submits that it has been kept out of possession for an inordinate length of time and that every attempt by them to obtain possession has been resisted until, ultimately, that resistance ceased when this Court dismissed the appeal from Ward J's decision. Further, criticism is made of the evidence filed by Dr Kopas as to the efforts made by him or those on his behalf to obtain alternative accommodation. In this respect Dr Kopas indicated in par 21 of his affidavit that if he could not secure New South Wales Housing premises then he would have to look for premises in the private rental market between two and four hours outside of Sydney, as he could not afford private rental in Sydney given the current Sydney rental crisis. 10In this respect annexed to his affidavit is a letter from Ms Greaves to the Burwood office of NSW Housing, which states the following: "Both the Kopas and I have been unsuccessful in finding affordable alternative premises, both locally and outside of Sydney; and the Kopas face the real and near prospect of being homeless." 11Although criticism is levelled at this evidence upon the basis that first, there is no affidavit from Ms Greaves and secondly, because the evidence is very general without any indication as to precisely where the Kopas have been looking for accommodation outside Sydney, nevertheless it would be reasonable to assume, given their religious practices, that they would be seeking to relocate out of Sydney to a location where there is at least a synagogue which in all probability would mean either Canberra, Wollongong or Newcastle. However, there is no evidence that there are necessarily synagogues in any of those cities other than Canberra. 12The matter is difficult but I am clearly of the view that the application for a further six-month stay should be rejected. Reliance is then placed by Dr Kopas upon the ninety days that were proposed by Ward J, given that only half that period was the subject of Order 3 made by this Court on 29 March 2012. Thus, as an alternative argument, the applicant seeks a further stay for the balance of that ninety-day period. 13The respondent submits that that should not be permitted as Dr Kopas has had nearly twelve months from the time of Ward J's judgment of April 2011 and the decision of the Court of Appeal at the end of March last in order to find other accommodation. One of the difficulties with that submission is that Dr Kopas was not eligible for social housing so long as the appeal remained on foot. It was nevertheless submitted that he could have obtained private accommodation other than social housing in that twelve month period even though had he done so and taken up such accommodation, he would have necessarily have had to withdraw his appeal. 14In my view it would not have been fair to have required Dr Kopas to withdraw his appeal given his desire to remain in the premises where he had lived for many years and given that it could not be said that his appeal from the decision of Ward J was hopeless. 15In all the circumstances therefore, I am prepared to extend Order 3 for a further forty-two days from 11 May next. I make it clear that the chances of any further extension being obtained at the expiration of that period, if otherwise Dr Kopas remains in possession, would be remote. Obviously I cannot bind any other judge who hears a further application on extension of the stay I am about to grant. However, Dr Kopas should have one more indulgence and only one more and I would anticipate that he would have extreme difficulty in persuading a judge to extend that time unless there were very particular and special circumstances over and above those that have been put before me in this application. 16Accordingly, I make the following orders: (a) Order 3 made by the Court of Appeal on 29 March 2012 is extended up to and including 22 June 2012 conditional upon prompt payment by Dr Kopas on the due date of rental in the sum of $270 per week and that in the event that there is a breach of that condition a writ of possession may issue forthwith. (b) The applicant to pay the respondents' costs of the notice of motion filed on 2 May 2012.