[2017] NSWCA 19
Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491
[2002] HCA 10
Reisner v Bratt [2004] NSWCA 22
Rogers v The Queen (1994) 181 CLR 251 at 286
Source
Original judgment source is linked above.
Catchwords
[1949] HCA 1
General Steel Industries Inc. v Commissioner of Railways (NSW) (1964) 112 CLR 125[1964] HCA 69
Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83[2017] NSWCA 19
Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491[2002] HCA 10
Reisner v Bratt [2004] NSWCA 22
Rogers v The Queen (1994) 181 CLR 251 at 286
Judgment (14 paragraphs)
[1]
Solicitors:
Centurion Lawyers (First, Third and Fourth Defendants)
File Number(s): 2020/71955
[2]
Procedural background
On 5 March 2020, the plaintiff, Mr Di Liristi, filed a summons seeking relief in relation to disputes involving, among other things, a residential tenancy of premises in Austral, which is in the City of Liverpool local government area. The summons was accompanied by an affidavit of Mr Di Liristi affirmed on 4 March 2020.
The first defendant to the summons, Matautia Developments Pty Ltd (Matautia), is the landlord of the premises in Austral. The second defendant, Mr Fowler, the third defendant, Mr Cavanagh (which appears to be a misspelling for Kavanagh) and the fourth defendant, Mr Wheaton (which appears to be a misspelling for Wheadon), are persons who are or have been directors of, or who act or have acted for, Matautia at various times.
The summons sought relief in the following terms:
"1. Declaration that there is a valid lease entered between the First Defendant and the Plaintiff on 7 June 2019,
2. Declaration that the First Defendant is Estopped by Terminating the Lease where the Plaintiff resides being [an address in] Austral.
3. Declaration that the Defendants are Estopped by not Honouring the agreement between the Alleged Lawyer Dean Alcorn of the First Defendant and Mr Ryan Strauss in regard to Repairs, Rectifications and Improvements.
4. Judgement against the Defendants to pay the Plaintiff for Damages arising from the Floods/Storms in which the Defendant failed to have a Building & Property Insurance in Place.
5. An order that the Defendants pay all damages arising from the agreement to Purchase the property known as [the address in] Austral.
6. An order that the Defendants pay all damages from Breaches in Agreement to Sub Lease.
7. Costs to be paid by the Defendants."
[3]
Application for summary dismissal
On 20 April 2020, the first, third and fourth defendants filed a notice of motion seeking orders for the proceedings in this Court to be summarily dismissed, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), and for the plaintiff to pay the first, third and fourth defendants' costs.
I should pause at this point to note that the parties seeking the dismissal of the proceedings do not include the second defendant, Mr Fowler. There has, however, been no notice of appearance filed by or on behalf of the second defendant. Mr Di Liristi read, without objection for the purposes of this application, a document which was headed "Affidavit of service of Antonio Di Liristi 25 May 2020" affirmed by Mr Di Liristi. The affidavit was undated, except for the date in the heading, and there were also problems with the witness's certification. There was also a belated affidavit from Mr Di Liristi to the effect that his evidence in pars 8, 9, 10, 11 and 12 of his affidavit of 4 March 2020 was incorrect and that it was Mr Wheadon whom he did not know, not Mr Fowler. Despite the unsatisfactoriness of the evidence, since Mr Di Liristi was not cross examined on its contents, I am prepared to accept, for the purposes only of the present application, that Mr Di Liristi did know the second defendant, Mr Fowler, and that he served the second defendant with the summons and supporting affidavit but Mr Fowler has chosen not to appear.
Further by way of procedural background, in Mr Di Liristi's affidavit affirmed 15 May 2020, which was also read without objection for the purposes of the present application, there is a statement at pars 29 and 30 that he is seeking leave to file an amended summons. A proposed amended summons dated 8 May 2020 was annexed to that affidavit. No leave to file that amended summons has, however, actually been obtained, as yet. In addition to the seven prayers for relief in the original summons, which have been set out above, the proposed amended summons includes the following prayers:
"[The prayers originally numbered 1 to 4]
5. An Order that the Defendant pay the cost of removing the Asbestos, Steel Concrete and all Hazardous Material that is found at the rear of the Property, situated at [the address in] Austral.
6. An Order that the Defendant pay the cost of removing the Asbestos, Steel Concrete and all Hazardous Material that is found in or around the Building (House) and the Garage on the Property, situated at [the address in] Austral.
7. An Order that the Defendant pay the cost of Repairs to the Building and Property situated at [the address in] Austral.
8. An Order that the Defendant pay the cost of Repairs to the Building in regard to damages sustained by the Storm, situated at [the address in] Austral.
9. [The prayer originally numbered 5]
10. Costs in relation to Container storage from December 2019 to the time these proceedings are concluded.
11. Damages and losses suffered by the Plaintiff not allowed to Sub Lease the Premises as agreed by the Defendants.
[The prayers originally numbered 6 and 7]".
[4]
The evidence
The first, third and fourth defendants read the following affidavits, without objection to specific paragraphs, in support of their application:
1. the affidavits of Mr Draybi of 20 April 2020 and 12 June 2020; and
2. the affidavit of Mr Habra of 14 May 2020.
In addition to the "affidavit of service" referred to above, Mr Di Liristi's affidavits of 4 March 2020, 15 May 2020, 10 June 2020 and 16 June 2020 were read in the plaintiff's case, without objection for the purposes of the present application. Mr Di Liristi also tendered, without objection for the purposes of the application, documents produced on subpoena by Liverpool City Council.
[5]
Submissions
It was submitted by Ms Avery-Williams of counsel, who appeared for the first, third and fourth defendants, that these proceedings commenced by Mr Di Liristi do not disclose any reasonable cause of action against the first defendant, given the question of the termination of the residential tenancy agreement is a matter to be determined in NCAT, where proceedings are already on foot. It was further submitted that the proceedings also do not disclose any cause of action against either the third or fourth defendants. The submissions then dealt with the prayers for relief contained in summons in order.
More particularly, in relation to the first prayer, concerning the declaration that there was a valid residential tenancy agreement, it was submitted that there is no contest that the parties entered into such an agreement or that such a contract is governed by the Residential Tenancies Act 2010 (NSW) (RT Act), and this was why the first defendant filed its application in NCAT. Given the plaintiff's evidence does not disclose any contest or issue about the existence or validity of the tenancy agreement, it was submitted that there is no cause of action disclosed which would give rise to the relief sought in the first prayer.
Concerning the second prayer for relief, the first defendant submitted that assuming the prayer should be read as seeking a declaration that the first defendant be restrained from terminating the lease, as opposed to being "Estopped by Terminating the Lease," the prayer has still not identified any basis upon which termination by the first defendant should be restrained. Additionally, it was submitted that Mr Di Liristi's evidence does not identify any basis upon which termination should be restrained, and even if it did, the proper forum for resisting such a termination would be NCAT.
In respect of the third prayer, concerning the alleged agreement for repairs, rectifications and improvements and the conversation alleged to have occurred at Campbelltown McDonald's, it was submitted in substance: first, the summons refers to an agreement between persons who are not parties to the tenancy agreement; secondly, it is apparent from the oral conversation alleged to have occurred and text messages before the meeting that such a conversation concerned a review of a written document and that this correspondence concluded with the signing of the tenancy agreement; thirdly, it is apparent from the evidence that there is no oral agreement outside of the matters that are written in the tenancy agreement, and even if there were such an agreement Mr Di Liristi has not pointed to any evidence of any actual or threatened breach of that agreement; and fourthly, that the relevant matters concerning renovations are recorded in writing in cl 4 of the special conditions in the residential tenancy agreement.
[6]
Relevant provisions of the UCPR and principles
Rule 13.4 of the UCPR provides:
"13.4 Frivolous and vexatious proceedings …
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."
The very well established general principle to be applied when considering an application for summary dismissal on grounds such as those in r 13.4(1) is that a case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting the case for determination in the appointed manner by the Court and once it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it, then proceedings should not be dismissed as frivolous and vexatious or an abuse of process: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (Dey) at 91 (Dixon J); [1949] HCA 1.
There will be a "real question" to be determined unless the defendants can show that it is so certain that the question must be answered in the defendants' favour that it would amount to an abuse of the process to allow the action to go forward for determination: Dey at 90; Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (Spencer) at [54] (Hayne, Crennan, Kiefel and Bell JJ).
In substance, the test to be applied is that the case of the plaintiff must be so clearly untenable that it cannot possibly succeed: General Steel Industries Inc. v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 130 (Barwick CJ); [1964] HCA 69. Put another way, demonstrated certainty of the outcome of the litigation is required before proceedings should be summarily dismissed under r 13.4(1): Spencer at [55]; Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 (Perera) at [30] (Leeming JA).
As to the submission that the provisions of the Civil Procedure Act, including s 56, operate so that the dismissal power conferred by r 13.4 is no longer confined to proceedings that are demonstrably certain to fail, such a submission should not be accepted to the extent that it is inconsistent with what has been held by the High Court in Spencer or the Court of Appeal in Perera, referred to above. The comments of Hammerschlag J in Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455, for example at [62] and [64], were obiter dicta, as Ward JA noted in Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [117]. In any event, in the circumstances of the present case, even if the submission were accepted it would not in my view lead to a different outcome.
[7]
Findings for the purposes of the summary dismissal application
Based on the evidence before the Court, and in particular the contemporaneous documents, I make the findings set out in the paragraphs which follow for the purposes only of this application for summary dismissal under r 13.4 of the UCPR. The findings are made on this limited basis because of the nature of the application, the fact that there was no cross examination of any witness and because objection was not taken to any of the evidence on the express basis that the evidence would only be used for the purposes of the present application. A significant amount of evidence on the present application might well have been rejected as inadmissible, if objection had been taken to it. Accordingly, my findings for the purposes of this application may not be available at a final hearing of the matter. It also goes without saying that the findings have not been made after a contested hearing on the merits of the summons.
Matautia is the landlord of the premises at Austral and entered into a residential tenancy agreement with Mr Di Liristi on 7 June 2019 for a term commencing on 1 August 2019. It appears that, prior to that time, Mr Di Liristi may have been the sub-tenant of the premises from another lessee, Mr Stillone, who is sometimes described by Mr Di Liristi as the "head tenant". Mr Di Liristi gave evidence of the nature of the arrangements between Matautia, Mr Stillone and Mr Di Liristi prior to 1 August 2019.
The residential tenancy agreement of 7 June 2019 consists of the standard form terms (in accordance with Sch 1 to the Residential Tenancies Regulation 2006 as in force at 7 June 2019) together with additional terms, as permitted by Sch 1. The terms in relation to the commencement date and term of the lease, the rent payable and other terms and conditions were set out in the sheet attached to the standard form and signed by or on behalf of the parties. The attached sheet was in the following terms:
"Terms of Lease
1. The term of the lease is 3 years with an option of 3 years (Subject to Development and Construction). In the event that the Landlord requires vacant possession of the Premises/Property to enable development works to commence after DA and Construction Certificate approval then the Lessee agrees to vacate the Premises/Property on 6 months written notice (which may be given at any time) and this Lease will thereupon be terminated without the need to compensate the Lessee under any circumstances.
Rent
2. Rent will be $300.00 per week which will commence on the 1st of August 2019 until the 1st September 2019 which will then become $600.00 for the term of the Lease, in which will be paid into a nominated bank account of the Landlord on the Monday of every week.
Commencement of Lease
3. Lease will commence on the 1st of August 2019, till the 31st of July 2022. (Plus Option) (Subject to Development and Construction)
Conditions and Agreement
4. The Landlord and Tenant agree as follows,
a. The Tenant will pay for the Air Conditioning and Heating Unit at a cost of $2950.00 as per Invoice #190301003 and will be taken of the rent until completely paid.
b. The Tenant will pay for the Stove at a cost of $980.00 as per Invoice #190301001, and will be taken of the rent until completely paid.
c. The Tenant will pay for the Repair of the Hot Water System at a cost of $286.50 as per Invoice #190301002, and will be taken of the rent until completely paid.
d. The Tenant will pay for the Repair of the Hot Water System at a cost of $330.00 as per Invoice #19041204, and will be taken of the rent until completely paid.
e. The Electrical work that is needed and required by law to Comply with the Australian Standards and Liverpool Council will be organised and paid for by the Tenant, and will be taken of the rent until completely paid.
f. The Tenant has the right to sublease part of the Premises/Property.
g. During the term of this Lease, or any extension or holding over of it, before the Landlord may sell (whether by option or, conditional or unconditional Contract) the freehold Property to a third party, the Landlord shall first offer the Property to the Tenant or his nominee on the same terms and conditions as are offered by the third party. The Tenant or his nominee shall have 30 days during which to accept the said offer. If the Tenant or his nominee does not accept the said offer within the 30 day period then the Landlord shall be free to accept the third party offer. If the Landlord does not enter into an agreement with the third party on the said terms and conditions within 45 days then the Landlords right to sell the freehold Property to the third party shall expire and the procedure described in this Condition 4g shall again be applicable."
[8]
Issues raised by Mr Di Liristi
It can be seen from the correspondence and other documentary material referred to above that there are factual disputes between the parties as to:
1. whether and when fill or waste material was deposited on the premises;
2. who was responsible for depositing fill or waste material on the premises;
3. whether the fill or waste material was deposited with the plaintiff's or the defendants' consent or knowledge; and
4. whether the fill or waste material was contaminated .or otherwise unsuitable.
In addition, in that correspondence and other documentary material Mr Di Liristi has, as I understood his submissions, also raised factual and legal issues concerning, inter alia:
1. whether, in the circumstances, Matautia had any basis for its termination application in NCAT whether under s 87 or s 90 of the RT Act, as alleged in the notice of termination;
2. whether, in the circumstances, Matautia was estopped or otherwise liable to be restrained from exercising any right to seek termination of the residential tenancy agreement, for example because of the cleaning, repairs and other activities undertaken by Mr Di Liristi to improve the property and the rights conferred by the special conditions of the residential tenancy agreement, under cl 4(a) to (g);
3. whether Matautia had any right to require the removal of the heavy vehicles which were being stored on the premises, under a sub-lease arrangement, and which were not used to deliver fill or waste material to the premises;
4. whether Matautia was in breach of cl 4(f) of the special conditions in the residential tenancy agreement and liable to Mr Di Liristi in damages as a result of requiring the removal of the heavy vehicles being stored on the premises under a sub-lease agreement;
5. whether Matautia was liable for repairing, or paying for the repair of, damage to the property resulting from the storm in February 2020;
6. whether Matautia's actions led to persons, described by Mr Di Liristi as "my investors", ceasing to be interested in acquiring the premises from Matautia and whether this involved any breach of contract or duty which entitles Mr Di Liristi to recover damages; and
7. whether David Whitting's actions in relation to the premises on 8 April 2020 involved any breaches of the residential tenancy agreement or tortious conduct entitling Mr Di Liristi to recover damages.
Mr Di Liristi's affidavits of 4 March 2020, 15 May 2020, 10 June 2020 and 16 June 2020, although somewhat lacking in focus and not in many instances containing admissible evidence, if objection were taken, also touch, directly and indirectly, upon issues which have been raised above as well as additional potential factual and legal issues or disputes between the parties, which cannot be described as entirely lacking in substance and which may have some relevance in the present proceedings, so far as it is possible to discern at the present stage. This includes, by way of example only and without attempting to be exhaustive, his evidence concerning:
1. Discussions that are alleged to have occurred at Campbelltown McDonald's regarding the 7 June 2019 residential tenancy agreement and issues such as the intended sale of the premises for $15 million and "the first option to purchase" which apparently refers to special condition cl 4(g), Mr Di Liristi's "investor", and the intended sub-lease, the nature and amount of repairs and maintenance Mr Di Liristi was authorised by Mr Alcorn, acting on behalf of Matautia, to undertake. [1]
2. The contaminated material left on the premises by Mr Stillone and damage to the premises caused by Mr Stillone during the removal of machinery equipment after his eviction, which required remediation and which Mr Di Liristi has had carried out at his own expense. [2]
3. The effect of the requirement not to allow heavy vehicles to be parked on the premises. [3]
4. Matautia's failure to take any steps to remove the asbestos present in the premises and a claim in negligence in that regard. [4]
[9]
Consideration
On an application such as the present, it is neither possible not appropriate to form a final view as to whether the plaintiff's case is likely to succeed. No useful purpose is served by analysing the evidence, such as it is, in great detail and making findings of fact beyond what is necessary to determine whether the plaintiff's case falls within any of r 13.4(1)(a), (b) or (c).
On the material before me including what has been summarised above, especially what appears from contemporaneous documents, I am of the view that it would not be proper to conclude that the plaintiff's case is, in respect of the potential causes of action and bases for relief that apparently arise, so clearly untenable that it cannot possibly succeed or that no reasonable causes of action are disclosed.
Given the issues raised by Mr Di Liristi and my findings for the purposes of this application which I have set out in detail above, it appears to me that the claims are not without some potential support. I am also satisfied that the first defendant has not demonstrated "certainty of the outcome of the litigation" in its favour such as is required before proceedings should be summarily dismissed. Whether those claims will ultimately be successful at a final hearing, is something about which I express no view.
An important part of the defendants' submissions was not that they had established that all of Mr Di Liristi's claims in relation to breaches of the residential tenancy agreement and related matters were doomed to fail or did not disclose a reasonable cause of action. Rather, their contention, as I understood it, was effectively that the claims could and should be dealt with in NCAT not this Court. It was thus apparently submitted in effect that it was an abuse of process or vexatious to seek to have those claims litigated in the Supreme Court. I do not accept that this is so. Moreover, the fact that there are proceedings in NCAT, subsequently commenced by Matautia, concerning the same subject matter does not alter that situation.
Since proceedings were commenced in this Court before the proceedings in NCAT and the issues in this Court relate to the termination and other aspects of the residential tenancy agreement, NCAT does not have jurisdiction to deal with Matautia's application for termination and other aspects of the residential tenancy agreement, by virtue of cl 5(7) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
[10]
Appropriate course for the matter
In order to allow any application for leave to amend the summons to be made and considered, subpoenas to be issued and other appropriate steps to be taken to prepare the matter for a hearing as soon as reasonably possible, it appears most appropriate that it should be listed before the Registrar for directions for the proper preparation of proceedings for hearing.
[11]
Costs
The first, third and fourth defendants have not been successful in their application for summary dismissal. There do not appear to me to be any circumstances which would render it inappropriate for costs to follow the event in the usual way.
[12]
Orders
Accordingly, the orders of the Court are:
1. The notice of motion of the first, third and fourth defendants filed on 20 April 2020 is dismissed.
2. The first, third and fourth defendants are to pay the plaintiff's costs as assessed or agreed.
3. The proceedings are listed before the Registrar for directions on 10 July 2020.
[13]
Endnotes
Affidavit, Antonio Di Liristi affirmed 10 June 2020 at par 121.
Affidavit, Antonio Di Liristi affirmed 10 June 2020 at pars 124 - 141.
Affidavit, Antonio Di Liristi affirmed 10 June 2020 at pars 220 - 229.
Affidavit, Antonio Di Liristi affirmed 10 June 2020 at pars 280 - 288.
Affidavit, Antonio Di Liristi affirmed 16 June 2020, annexure J, at p 36-37.
Affidavit, Antonio Di Liristi affirmed 10 June 2020, annexure Y, at p 103-104 seems to show sheets of roofing missing and possibly some water damage.
[14]
Amendments
13 July 2020 - Title amended to reflect the fact of the prior decision of Di Liristi v Matautia Developments Pty Ltd [2020] NSWSC 634
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: 13 July 2020
The first, third and fourth defendants' notice of motion came on for hearing before me on 17 June 2020.
In relation to prayer four, seeking an order as a result of damage having arisen from a storm or flood, it was submitted both that there is no evidence in the plaintiff's affidavits of him suffering any damage, and further even if there had been damage to some of the buildings on the premises, given the buildings are the first defendant's property, any such rectification would need to be carried out at the first defendant's cost not the plaintiff's.
Further, in par 48 of the defendants' written submissions, it is asserted that there is no cogent evidence before the Court that the damage suffered by Mr Di Liristi exceeds NCAT's relevant jurisdictional limit of $15,000.
In relation to prayer five, concerning an alleged breach of an agreement to sell, the first defendant submitted that any agreement to sell would be referrable to cl 4(g) of the special conditions of the residential tenancy agreement. It was also submitted that the plaintiff has provided no evidence to suggest that the premises are for sale or were not offered to him before they were sold to a third party.
In relation to prayer six, concerning the alleged breach of an agreement to sub-lease, the first defendant submitted that while the plaintiff asserts that the first defendant "denied the plaintiff the right to sublease", Mr Di Liristi's real complaint is a breach of cl 4(f) of the special conditions of the tenancy agreement, which is a matter for NCAT to determine.
In relation to claims which Mr Di Liristi has raised not in the summons but which appear to be raised in his affidavits, the first defendant submitted that if the plaintiff does indeed have a genuine claim for a breach of the residential tenancy agreement, those claims should be ventilated in NCAT not this Court.
In addition, Ms Avery-Williams submitted, as to the principles that should be applied, that when the power to dismiss proceedings on the basis that they disclose no reasonable cause of action is read together with the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW), the effect is that the Court should exercise a practical judgment about the proceedings' prospects of success and summary dismissal should not be confined to proceedings that are demonstrably certain to fail, relying upon the decision in Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455.
In response to the summary dismissal application, Mr Di Liristi submitted first that his claim is neither frivolous nor vexatious and that it was not an abuse of process. He submitted that he had articulated, in his affidavits, details of the bases for his claims, including in particular conversations he had with Mr Alcorn. Further, Mr Di Liristi submitted, as far as I could discern, that his claims for damages or compensation exceeded $15,000, by a substantial margin. He also submitted, concerning asbestos on the premises, that he had expended time, effort and money removing some of the asbestos, as well as other debris, from the premises and there was an agreement with Matautia that it would assist in this removal process.
In respect of the third and fourth defendants and their involvement in the proceedings, as I understood it, Mr Di Liristi in effect submitted that:
1. Mr Kavanagh has been named as a party because of his alleged role as, in effect, a shadow director of Matautia, being the person who is "calling the Shots"; and
2. Mr Wheadon has been joined as a party because he is the current director of Matautia.
Mr Di Liristi in substance contended that the third and fourth defendants should be held responsible for the conduct of Matautia and its employees, particularly the alleged actions of Mr Alcorn on behalf of the corporation. From his affidavit evidence, it appears, however, that Mr Di Liristi was not familiar with Mr Kavanagh before he commenced the proceedings and has never actually met or encountered either him or Mr Wheadon.
As to the particular concepts included in r 13.4(1)(a), (b) and (c), they are not necessarily distinct and they tend to overlap. In this context, "frivolous" includes proceedings that a plaintiff has no reasonable prospects of successfully prosecuting or that are untenable, groundless or faulty: Spencer at [59]. Proceedings which are foredoomed to fail, and "frivolous" in that sense, include proceedings where no reasonable cause of action is disclosed. "Vexatious" refers to proceedings that are productive of serious and unjustified trouble or harassment: Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491; [2002] HCA 10 at [25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). As to abuse of process, while that concept cannot be exhaustively defined, there are three common categories:
1. where the court's procedures are invoked for an illegitimate purpose;
2. where the court's procedures are used in a manner unjustifiably oppressive to one of the parties; or
3. where the use of the court's procedures would bring the administration of justice into disrepute,
The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 at [424] (Bathurst CJ) citing McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42.
At some time prior to 29 November 2019, an unidentified person informed Liverpool City Council that there was "(allegedly) a large amount of illegal fill being imported at the [premises]" and aerial imagery indicated that the allegations may be accurate.
On 2 December 2019, an inspection of the premises was carried out by an authorised officer of the Council, Mr Dean Alcorn on behalf of Matautia and Mr Di Liristi. The inspection revealed the following according to the Council's letter to Matautia of 4 December 2019:
"Unauthorised fill material has been introduced, spread and stockpiled across the subject premises. Foreign matter such as terracotta fragments were identified. The nature and characteristics of the fill is unknown. The presence of contaminants within the fill is unknown."
Attached to the Council's letter of 4 December 2019 was a Draft Clean-Up Notice and Matautia was given 10 days in which to make written representations explaining why the proposed notice should not be given or requesting an amendment to the proposed period of compliance or terms of the notice. An extension of time was requested.
Under cover of a letter from the Council of 18 December 2019, Matautia received a Clean-Up Notice pursuant to s 91 of the Protection of the Environment Operations Act 1997 (NSW), directing the company to take the following clean-up action immediately:
"1. Immediately, cease all activities relating to the pollution incident;
2. Prevent heavy vehicles containing fill or any other materials from entering the subject premises;
3. Cease depositing fill or any other materials onto the subject premises."
In addition, the company was required, within six weeks, to have all introduced fill material spread and compacted on the premises classified and analysed by appropriately qualified and certified consultants prior to off-site disposal. And, within eight weeks, once fill soils with unknown contaminants were removed, a further investigation of the identified areas was to be undertaken by appropriately qualified and certified contaminated site consultants to ascertain the nature and extent of the pollution incident. Reports concerning the investigations and other works were to be provided to the Council along with written receipts from the licensed waste facility giving details of the disposals.
In the Clean-Up Notice, under the heading "Reason for the Notice", the following appeared:
"During the site inspection, on-site discussions were held with Mr Dean Alcorn and Mr Antonio Di Liristi regarding the soils. Mr Di Liristi advised that the material was introduced as a means to make the site safe as underneath the soil was remnants of concrete and iron rods all curled up. Mr Di Liristi stated that a friend had introduced the soils that were allegedly clean soils, to even out the land. The works had been occurring for 4 months. There was no evidence of where the soils were from or whether the soils were classified as VENM [virgin excavated natural material]."
On about 20 December 2019, it appears that Matautia sent consultants, Aargus Pty Ltd (Aargus), to inspect the premises. On 20 December 2019, Mr Di Liristi sent an email in somewhat intemperate terms to Mr Alcorn in which he indicated, in effect, that he regarded sending the consultants as unnecessary and the consultants as "idiots". The email also contained the following:
"What is more important is if my investors get a whiff of what's going on they will pull out before you can say 'Idiot' , and they will not just pull out of this deal of [the address in Austral], they will pull out of every deal with Ryan [who was the person whom Mr Di Liristi indicated he believed effectively stood behind Matautia].
…
I advised you I have been advised that a 'Contamination Report' has been completed as per your request, because when you called me yesterday they had already done the tests and advised us that there is NO Contamination and the tests were 'Clean' and the report will be typed up and completed when they return back to work, which ii was going to supply you with that 'Clean Contamination Report'
I also asked for a second report which was to be done and now will be done as per your request which I believe has also been completed and I believe is also clean."
On 24 December 2019, Mr Alcorn, on behalf of Matautia, sent a letter headed "Illegal tipping of fill material, storage of vehicles, equipment and materials" to Mr Di Liristi, instructing him that:
"1. All importation of filling materials, equipment, vehicles, materials or any other foreign substance onto the Property is to cease immediately and without exception.
2. No works of any nature are to be carried out on the Property.
3. All vehicles and machinery currently parked on the Property (other than as directly relate to your domestic occupation) are to be immediately removed."
It was not explained why vehicles and machinery parked on the premises were required to be removed when the Council's Clean-Up Notice only required Matuatia to "[p]revent heavy vehicles containing fill or any other materials from entering the subject premises".
On 6 January 2020, Matautia received a further email from the Senior Environmental Health Officer of Liverpool City Council advising that a "new allegation of land pollution" had been made in relation to liquid waste having an effluent odour being deposited on the premises "for some time quite frequently and that the last time it had occurred was just before Christmas".
On 7 January 2020, Aargus attended the premises for the purpose of testing the fill material. Aargus informed Matautia that Aargus "noted that significant works had been carried out since the date of their previous property inspection on 20th December, 2019. These works included redistribution of fill stockpiles and a broadening of the extent of the fill platform".
On 10 January 2020, Mr Wheadon, on behalf of Matuatia, wrote to Mr Di Liristi informing him of the information provided by Aargus and the information provided by Liverpool City Council concerning the importation of liquid waste onto the premises. The letter also contained the following:
"I must once again insist that all importation of filling materials, equipment, vehicles, materials or any other foreign substance onto the Property cease immediately and without exception. This prohibition extends to the importation of any substance whatsoever and specifically prohibits the importation of any form of liquid waste or other potential contaminant.
All other requirements of our 24th December letter remain valid, inclusive of a requirement to immediate remove all machinery, heavy vehicles, equipment or any other item not required for the sole purpose of residential accommodation of the dwelling on the Property." (emphasis in original)
The letter also required Mr Di Liristi to confirm his agreement to comply with those requirements, to provide Mr Wheadon with information relating to the dumping of liquid waste on the property and to confirm his willingness to co-operate with Matautia to address the issues raised by the Council. Finally, the letter advised that Matautia was seeking legal advice and reserved all its rights.
On 15 January 2020, Mr Di Liristi sent two emails to Mr Alcorn. In the first email sent at 5:07 PM, Mr Di Liristi:
1. apparently forwarded an email from another person which suggested that Matautia had indirectly engaged a person with a criminal record to burn Mr Di Liristi's home, in effect, to get him out;
2. requested Mr Alcorn to confirm that he knew nothing of this;
3. wrote, among other things:
"…
Are you all Stupid or is something wrong, you and Ryan and more than Likely the other partner are aware of the Asbestos in the site BEFORE I moved in and if any interruption with the soil occurs, that As best as will be exposed and the entire site will need to be Remediated and Clean and let me tell you that will cost in in excess of $500,000 as there is over 800 tonnes of soil that would need eb to removed
If my investor finds out any of this, I am telling you he will pull the pin and this site will be worth less than $500,000.
If my investor pulls the pin on this sale, than I am placing both Matautia Developments Pty Ltd and you on formal notice that I will be suing for Damages and costs on an Indemnity basis.
If my investor pulls out of this deal he will pull out of every other deal Ryan, Matautia Developments Pty Ltd or you are involved in and it will be Matautia Developments Pty Ltd, Ryan and you who will lose, as losing such an investor is 'Commercial Suicide.
Send this email to Ryan and NO ONE else because if this gets out, Council and the EPA will have a field day.
…" .
In the second email to Mr Alcorn sent at about 5:09 PM on 15 January 2020, Mr Di Liristi was apparently responding to Mr Alcorn's letter of 24 December 2019 and wrote in relation to paragraphs 2 and 3 of that letter:
"3. Paragraph 2, - This statement is the most absurd statement I have ever read that you have ever made, and I will explain in detail how 'Absurd', Unfounded' and a Total Lie this statement is,
a. Both Ryan and YOU were Clearly Aware that the site area that Antonio Stillone was leasing contained Building Material including a large amount of Asbestos which were placed on the site by Antonio Stallone.
b. Both Ryan and you've made NO attempt to remove the Asbestos, and what is more disturbing that Ryan and you RETURNED the Bond back to Antonio Stallone despite my plea with you NOT to return his Bond and to withhold that Bond so it can be given to me to pay for the $4250 I paid to have the Asbestos removed from inside the garage and the removal of other building material from garage.
c. Both Ryan and you agreed that I would bring in clean filter level the site area that was used by Antonio Stallone, that was left with Concrete and other building material by Antonio Stallone when he left the premises, so I can sublet that section of the land for the purpose of storing equipment and trucks ONLY, (NO Work to be done on site) hence why the Staggering of the rent which again was agreed by both Ryan and you.
d. I DID NOT need further consent as I had consent BEFORE the lease was signed by both Ryan and You on behalf of Matautia Developments Pty Ltd.
e. You saw the fill and the clean level land upon your visit to [the address in Austral], on 22 August 2019, Australia when you came to ask me to withdraw my Application against Antonio Stallone from the NCAT proceedings which I now regret as I have lost in excess of $8000, and then at NO Stage did you say anything about the feel except when you asking where the land goes to and we walked on and over the clean fill laid nicely and I explained to you on the day what was done which you had NO issues with a the time, so as a lawyer you would clearly not the word 'Estoppel' both Matautia Developments Pty Ltd, and you are 'Estopped' I'm making any reference to Illegal Dumping, and/or Storing of Vehicles and/or any other alleged concern you raised and this is further supported by YOUR 'Conduct' on behalf of Matautia Developments Pty Ltd , by not stating anything and/or stopping and/or the continuing of clearing and cleaning the site on 22 August 2019, Dean as a Lawyer you know the troubles both Matautia Developments Pty Ltd, and you will face if this matter goes to court.
f. I know why Council issues that Notice and you asked me NOT to follow my complaint up with Council, I respected your decision not take Council on and now I regret that choice and now I have been advised to lodge a Formal Complaint with … the Internal Ombudsman.
4. Paragraph 3, -
1. I have ceased the Importation of filling material, equipment, vehicles, materials and any other forging substance onto the property as per your request, BUT this request from you on behalf of Matautia Developments Pty Ltd, has 'Serious Repercussions', as now the person who was supposed to start renting the rest of the property is no not allowed to enter the site as per your request and therefore causing me 'Financial Hardship', which is against the Police and against the Consumer Tenancy Agreement,
…"
Mr Di Liristi went on in the email to explain certain steps he had taken in relation to soil on the premises and he put Mr Alcorn and Matautia Developments Pty Ltd on formal notice that he would be claiming back all losses and damages against the company as a result of ceasing all works "as per your 'Written Advise'" and as a result of refunding $1500 that was paid to him "to store a few trucks over Christmas". In that latter regard, Mr Di Liristi wrote:
"b. As stated, it was agreed by both Ryan and you that I could sublet that section of the land for the purpose of storing equipment and trucks ONLY, (NO Work to be done on site) hence why the Staggering of the rent which again was agreed by both Ryan and you, now that Staggering of rent CANNOT be called upon by Matautia Developments Pty Ltd because by YOUR letter on behalf of Matautia Developments Pty Ltd has DENIED me the right to sublet that portion of the land as our agreement."
In relation to the final paragraph of the letter Mr Di Liristi wrote in the email:
"8. Final paragraph, - The Owner (Sic) as you claim can see whatever he or she wishes, there is NO Damages to the site, in fact I have spent in excess of $45,000 improving the site that was used by Antonio Stallone as his personal and business 'Dump Yard' which was riddled with Concrete, Asbestos and many Other Contaminated Material, with NO HELP from the Owners and/or Matautia Developments Pty Ltd
Finally I would not enjoy seeing Ryan and/or the 'Owners' and or 'Matautia Developments Pty Ltd' and or its Representatives and or you, in the Supreme Court of NSW to claim for damages as that would be the appropriate venue, and please also note, and as Matautia Developments Pty Ltd, Ryan and you are aware, that my Damages will be in excess of AU$10 Million Dollars because if my Investor backs out of this deal, Matautia Developments Pty Ltd and your name will be listed as Defendant in the Supreme Court of NSW for Damages on an Indemnity Basis,
…"
On 24 January 2020, Aargus provided a soil assessment report to Matautia which included the following summary of the assessment:
"• The analytical data indicated that all metals, TPH [Total Petroleum Hydrocarbons], BTX [Benzene, Toluene and Xylene], PAH [Polycyclic Aromatic Hydrocarbon], OC [Organochloride] and PCB [Polychorinated Biphenyl] concentrations were below the relevant site assessment criteria with the exception of benzo(a)pyrene (as TEQ) concentration in sample BH3 (0 - 0.2 m).
• Asbestos detected in fragments were encountered in samples recovered from boreholes BH1, BH2 & BH6 and in stockpiles SP1, SP3 and SP4.
• ACM [asbestos containing materials] were noted on the surface in the vicinity of boreholes BH1, BH2 & BH 36 and in stockpiles samples SP1 - 1 and SP4 - 1.
• The wet area at the base of the embankment was found to be clean.
Therefore, the soils in the vicinity of boreholes BH1, BH2, BH3 & BH6 and stockpiles SP1, SP3 and SP4 are not suitable to stay on site and require to be classified and then appropriately disposed of off-site to an EPA licensed landfill that can accept the classified waste."
On 6 February 2020, and apparently as a result of a request received from Mr David Whitting, Liverpool City Council extended the time for compliance with the Clean-Up Notice to 12 weeks from 6 February 2020.
On 11 February 2020, Matautia's solicitors wrote to Mr Di Liristi. In that letter, Matautia alleged that Mr Di Liristi was in breach of the residential tenancy agreement in a number of respects, and there was a demand that he comply with the three items of immediate clean-up action set out in the 18 December 2019 letter from Liverpool City Council. The letter also demanded that he execute and return an irrevocable undertaking in the form enclosed with the letter and stated that in the event that he did not sign such an undertaking, Matautia would make an urgent application to the Civil and Administrative Tribunal of New South Wales, NCAT, seeking an order for possession of the premises and commence proceedings against him in a court of competent jurisdiction to obtain urgent injunctive relief and to recover for loss and damage suffered by Matautia as a result of his breach of the residential tenancy agreement and/or his tortious conduct.
It appears that on 12 February 2020, Mr Di Liristi while in hospital had a conversation on the telephone with Mr Draybi, a solicitor for Matautia. Mr Habra, another solicitor acting for Matautia, sent an email to Mr Dr Liristi the following day setting out Mr Draybi's account of the conversation. It was said that Mr Di Liristi advised that a person by the name of Ron was responsible for the pollution incident and that Ron had been invited onto the premises by Mr Di Liristi to unload approximately 900 tonnes of natural material (some of which came from a property/worksite in Strathfield and some from another property/worksite). It was also said that Mr Di Liristi had CCTV footage of the incident, contact details for Ron and registration details of the trucks used by Ron. It was also recorded that Mr Di Liristi said that he spent approximately $36,000 in improvements to the premises as contemplated by the lease. In the email, Mr Habra sought material to substantiate those contentions.
On 24 February 2020, a person who only identified herself as Melissa sent an email to Mr Habra informing him that Mr Di Liristi's house had no power and that some of the premises were flooded, "[d]ue to the recent Storms" and this had damaged his computer and electrical equipment. It was also said that Mr Di Liristi was in hospital and could not move but was due to be discharged on 29 February 2020. It was further noted that Mr Di Liristi was trying to repair the house, mend damaged fences and damage to the property, without being at the property, which had no power and with no assistance or help from Matautia.
It appears that on 26 February 2020, Mr Habra spoke by telephone to Mr Di Liristi who said he was still in hospital. Mr Di Liristi in effect asked for a further 10 days to gather the information concerning the pollution incident. This request for a 10 day extension was confirmed by an email sent by Mr Di Liristi to Mr Habra on 27 February 2020.
Later on 27 February 2020, Mr Habra sent an email to Mr Di Liristi indicating that an extension of time would be granted subject to details of the person named Ron being provided by 4 PM the following day.
On 28 February 2020, in an email to Mr Habra, Mr Di Liristi sought a further extension of time in which to supply "Ron's details". In response, and despite express misgivings, Mr Habra indicated that a further extension of time would be given. Later that same day, Mr Di Liristi sent an email to Mr Habra in which he said, in addition to referring to information still to be discovered from his damaged hard drives and to roof sheets removed in the storm and water damage, as well as certain other somewhat intemperate remarks:
"I don't allege anything Ron is most Certainly RESPONSIBLE for Dumping the soil on our property WITHOUT MY CONSENT." (emphasis in original)
On 2 March 2020, Mr Di Liristi informed Mr Habra by email of the difficulties he was still having with obtaining information from his hard drive.
On 4 March 2020, Mr Di Liristi commenced the present proceedings in this Court.
On 5 March 2020, an email from Mr Di Liristi informed Mr Habra that he had commenced proceedings in the Supreme Court. That email also contained the allegation that:
"there is an excess of 100 tonnes of Asbestos on the site BEFORE I took possession and your clients employees new about this, now your client will have to remove ALL of the Asbestos, Concrete and many other Building materials that were left from the previous tenant in which Council Evicted and find because of his Illegal Business Activities."
On 6 March 2020, Mr Di Liristi sent a further email to Mr Habra attaching the summons in these proceedings and Mr Di Liristi's affidavit of 4 March 2020. In addition to some further intemperate remarks and suggestions perhaps in terrorem that an attempt should be made to settle the proceedings, the email contained the following:
"Chris this is only a 21-page Affidavit, please ask your client not to make me file the 128-page Affidavit because they will seal your client's fate.
Please also advise your client that there is over 4TB of recordings in both CCTV and Audio Recordings and that your clients no idea about., which will clearly seal your client's fate."
By letter dated 20 March 2020, the solicitors for the first, third and fourth defendants informed Mr Di Liristi that, if a resolution could not be achieved, they held instructions to file a notice of motion seeking summary dismissal of the proceedings under r 13.4. The letter set out in some detail the bases upon which the first, third and fourth defendants would be contending that the proceedings should be summarily dismissed.
On 23 March 2020, Matautia's solicitors caused a notice to terminate residential tenancy agreement under the RT Act to be served on Mr Di Liristi by post. The notice stated that the tenancy agreement between the parties was terminated and that Mr Di Liristi was to deliver up vacant possession of the premises on 6 April 2020. The notice listed the following breaches of the tenancy agreement as grounds for termination, pursuant to s 87 of the RT Act:
"1. you have used the Premises for illegal purposes (clause 15.1).
2. you have intentionally or negligently caused or permitted damage to the residential premises (clause 15.4).
3. you have failed to keep the Premises reasonably clean (clause 16.1).
4. you have failed to notify Matautia of damage to the Premises (clause 16.2)
5. you have failed to obtain Matautia's written permission to alter or add to the Premises (clause 27.1)."
The notice also stated that it was being given on the ground that Mr Di Liristi had intentionally or recklessly caused or permitted serious damage to the premises, and termination was accordingly also sought under s 90 of the RT Act.
On 8 April 2020, Mr Whitting sent an email to Mr Habra and reported that, acting on behalf of Matautia, he attended the premises where he says the gate was wide open and he saw Mr Di Liristi and other persons still in occupation of the premises. He says that, after seeing Mr Di Liristi, Mr Whitting "immediately turned tail, and proceeded to walk back to [the street]". He observed a younger person who saw him. He says that he was pursued by the younger person in a car and both of them spoke to police who happened to be nearby.
In an email of 8 April 2020 to Mr Habra, Melissa (apparently on behalf of Mr Di Liristi) gave a different version of what occurred. This email contained the following:
"Today we had David Whitting and agent of your client illegally accessed the premises [at] Austral.
David Whitting on behalf of Matautia Developments Pty Ltd (As advised by David Whitting whom he told police was acting under instructions of the owner of the property) cut the chain of the front gate, enter the property without permission, knowledge or consent, turned the Power off at the Main Board and attempted to change the locks on the premises, all whilst the premises were being occupied with occupants in the house and premises
When David Whitting was confronted, he ran from the premises and jumped into his car and drove off
The Occupier of the premises chased David Whitting as he did not know who he was or what was his intention was the premises
David Whitting then stopped at a police car where David Whitting in front of the Police Officer said 'I am representing the owner of the property and that Antonio Di Liristi has been evicted and no one should be at the premises, the Police Officer said that was a civil matter and to leave him alone as he was involved in a serious undercover police matter." (emphasis in original)
On 9 April 2020, Matautia filed an application in NCAT, seeking termination of the residential tenancy agreement and recovery of possession of the premises at Austral. Recovery of possession was apparently sought in NCAT because of:
1. the prohibition in s 119 of the RT Act which states:
"A landlord or former landlord must not commence proceedings against a tenant or former tenant of the landlord 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";
1. the provisions of s 81 of the RT Act, which establish that, except in circumstances which are not applicable in the present case, termination of a residential tenancy agreement only occurs if NCAT makes an order terminating the agreement; and
2. s 83(1) of the RT Act which provides:
"If the Tribunal makes an order terminating a residential tenancy agreement under this Act, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect."
Notice of this application to NCAT was served on the plaintiff on 15 April 2020.
In addition, Mr Di Liristi's evidence also includes material concerning his attempts to issue subpoenas or take other steps to obtain or prepare evidence. Some of this material indicates in substance that there are matters in dispute, or likely to be in dispute, that relate to issues such as the following, without attempting to be exhaustive, and that Mr Di Liristi is seeking evidence in relation to those matters: [5]
1. whether Mr Antonio Stillone was responsible for the contamination reported in the 24 January 2020 soil assessment report of Aargus Pty Ltd;
2. whether Mr Stillone was responsible for the pollution incident or incidents; and
3. whether Mr Stillone's activities were carried out with the knowledge of Matautia but without the authorisation of Mr Di Liristi.
The preparation and presentation of Mr Di Liristi's case is not assisted by the fact that he does not have the benefit of the advice and assistance of formally retained and fully informed legal representation. For example, Mr Di Liristi's contentions in pars 97 to 103 of his affidavit of 10 June 2020 and the evidence he is seeking to adduce, which is referred to in his 16 June 2020 affidavit, indicate that there is some confusion, on his part, as to what issues could or should be addressed in these proceedings or in the NCAT proceedings.
Pre-existing proceedings in a court, as defined in cl 5(1) of Sch 4, affect NCAT's jurisdiction in relation to matters such as the first defendant's application under the RT Act, which are allocated to the Consumer and Commercial Division of the Tribunal under cl 3(1) of Sch 4 to the NCAT Act. Clause 5 of Sch 4 to the NCAT Act relevantly provides:
"(1) Meaning of "court" For the purposes of this clause, court means any court, tribunal, board or other body or person (other than one referred to in subclause (2)) that -
(a) is empowered under any other Act, or
(b) by consent of, or agreement between, 2 or more persons has authority,
to decide or resolve any issue that is in dispute, whether through arbitration or conciliation or any other means.
…
(7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.
(8) Subclause (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn.
(9) Evidence from court proceedings In proceedings on an application to the Tribunal for the exercise of a Division function, a finding or decision made by a court, tribunal, board, body or person referred to in subclause (2) is admissible as evidence of the finding or decision.
(10) Clause prevails over other law This clause has effect despite Part 3 of this Act or any other Act or law to the contrary."
There was no dispute in the present case that this Court is a "court" for the purposes of cl 5 of Sch 4 to the NCAT Act.
Since these proceedings were commenced before the application was filed in NCAT and an issue relating to the termination of the residential tenancy agreement is the subject of a dispute in these proceedings, "the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue". In the present case, it is apparent from correspondence to the parties from the Tribunal, which refers to the proceedings in this Court and its potential to affect the jurisdiction of the Tribunal, that the Tribunal is aware of the proceedings in this Court. Consequently, the Tribunal has "cease[d] to have jurisdiction to hear or determine the issue" of termination or any other relevant issues which are otherwise raised in these proceedings.
Thus, it should not be concluded that it is an abuse of process or vexatious to have commenced or to continue these proceedings in this Court.
In addition, even if there were no such jurisdictional problem for NCAT as a result of cl 5(7), there are other limits on NCAT's jurisdiction which mean that it would not be appropriate for Mr Di Liristi's claims based on breaches of the residential tenancy agreement to be required to be heard in NCAT. Section 187 of the RT Act relevantly provides:
"(1) The Tribunal may, on application by a landlord or tenant or other person under this Act, or in any proceedings under this Act, make one or more of the following orders -
(a) an order that restrains any action in breach of a residential tenancy agreement,
(b) an order that requires an action in performance of a residential tenancy agreement,
(c) an order for the payment of an amount of money,
(d) an order as to compensation,
(e) an order that a party to a residential tenancy agreement perform such work or take such other steps as the order specifies to remedy a breach of the agreement,
(f) an order that requires payment of part or all of the rent payable under a residential tenancy agreement to the Tribunal until the whole or part of the agreement has been performed or any application for compensation has been determined,
(g) an order that requires rent paid to the Tribunal to be paid towards the cost of remedying a breach of the residential tenancy agreement or towards the amount of any compensation,
(h) an order directing a landlord, landlord's agent or tenant to comply with a requirement of this Act or the regulations,
(i) a termination order or an order for the possession of premises,
(j) an order directing a landlord or landlord's agent to give a former tenant or person authorised by a former tenant access to residential premises for the purpose of recovering goods of the former tenant or fixtures that the former tenant is entitled to remove.
(2) Without limiting the Tribunal's power to make an order as to compensation, the Tribunal may order compensation to be paid for the following -
(a) loss of rent,
(b) any other breach of a residential tenancy agreement,
(c) loss or damage suffered by a person as a result of inaccurate, ambiguous or out-of-date information being listed about the person on a residential tenancy database.
…
(4) The Tribunal must not make an order for -
(a) the payment of an amount that exceeds the amount (if any) prescribed by the regulations for the purposes of this section, or
(b) the performance of work or the taking of steps the cost of which is likely to or will exceed the amount (if any) prescribed by the regulations for the purposes of this section."
Clause 40 of the Residential Tenancies Regulation 2019 provides:
"For the purposes of section 187(4)(a) of the Act, the amount prescribed is -
(a) if the order is with respect to a rental bond - $30,000, or
(b) otherwise - $15,000."
In my view, it has not been established, in this application, that none of the potential relevant claims of Mr Di Liristi is for more than $15,000 or that the total of his potential relevant claims is less than $15,000.
On these bases, it appears to me that NCAT does not presently have jurisdiction to deal with many, if not all, of Mr Di Liristi's claims. Nor does NCAT have jurisdiction to deal with the claims to the extent that they seek the payment of a sum or money, or compensation, that exceeds $15,000. In those circumstances, there is, in my view, no abuse of process in commencing or continuing the present proceedings in this Court nor are these proceedings vexatious, within the meaning of r 13.4(1)(b) or (c). Since they are also not doomed to fail, they are also not relevantly frivolous, within r 13.4 (1)(a).
As to the defendants' submissions concerning the specific prayers for relief in the summons, I do not accept that these establish that the proceedings should be summarily dismissed as a whole and without a hearing on the merits.
The first prayer for relief effectively seeks a declaration that the residential tenancy agreement dated 7 June 2019 remains on foot. Although anticipatory when the summons was filed, such a claim for relief continues to have relevance in light of the 23 March 2020 notice served on Mr Di Liristi which stated that the tenancy agreement between the parties was terminated and that Mr Di Liristi was to deliver up vacant possession of the premises on 6 April 2020 and the actions of Mr Whitting on 8 April 2020. On one (albeit hearsay) version, Mr Whitting asserted that he represented Matautia, the owner of the property, and that Mr Di Liristi had been evicted. It was inherent in these assertions that Matautia contended that the residential tenancy agreement was no longer on foot. Mr Di Liristi is seeking a declaration that it remains on foot. Seeking a declaration as set out in prayer one appears therefore to be legitimate in the circumstances. The fact that Matautia now submits that there is no contest that the parties entered into such an agreement or that such a contract is governed by the RT Act does not have the consequence that there is no basis for the relief claimed or that no reasonable cause of action is disclosed in this regard. Nor can this claim for relief be seen to be frivolous or vexatious.
It can be accepted that the second prayer for relief is not expressed with the precision which a qualified lawyer would employ. Nonetheless, it appears to me that there is a sufficient basis disclosed in the material to justify the case being allowed to continue in order to determine whether the first defendant should be restrained from seeking to terminate the residential tenancy agreement on the grounds identified in the notice of termination served on Mr Di Liristi. For the reasons given above, I do not accept that, at present, NCAT is the only proper forum in which Mr Di Liristi can resist termination of the tenancy agreement.
The third prayer appears to relate to repairs, rectifications and improvements and the conversation alleged to have occurred at Campbelltown McDonald's. It is far from obvious, on the basis of the material before the Court, that the substance of this claim falls solely within the confines of the residential tenancy agreement. In any event, the amounts claimed may well exceed the monetary limit of NCAT's jurisdiction, even if the Tribunal otherwise had jurisdiction. Accordingly in the circumstances, it should not be concluded that it would be an abuse for the proceedings in this regard to continue in this Court nor has it been demonstrated that no reasonable cause of action is disclosed.
In relation to prayer four, which relates to damage to the premises suffered in a storm or flood, it was submitted in effect that there was no evidence of damage, in respect of which the plaintiff was entitled to recover from the first defendant, and, in any event, this was a matter to be determined in NCAT.
While the extent of the damage to the buildings is unclear from the photos Mr Di Liristi annexed to his affidavit, [6] there does appear to be some evidence of damage which is consistent with storm damage. If Matautia was required to, but did not rectify, the damage, the plaintiff may have a claim under the residential tenancy agreement. It is not clear that Mr Di Liristi's claim in this regard is bound to fail or does not disclose a reasonable cause of action, in the relevant sense. The fact that, if NCAT had jurisdiction, the cost of repairs might not exceed $15,000 does not provide a proper basis for summarily dismissing this aspect of the claim or the claims as a whole. In any event and on the material, as I understand it, I would not conclude that the cost of repairs could not exceed $15,000.
In relation to prayer five, concerning alleged "damages arising from the agreement to Purchase the property", it was submitted that this was referrable to cl 4(g) of the special conditions of the tenancy agreement. As I understood his submissions in response, Mr Di Liristi contended that this was not so. It was not clear to me whether he contended that this prayer for relief related to "his investors" not purchasing because of conduct of the defendants or a breach of some other contract. While this aspect of his claims might be tenuous, given the apparently extensive discussions and relations between Mr Di Liristi and those acting on behalf of Matautia and others with some involvement with that company, I am not prepared to conclude that the first, third and fourth defendants have demonstrated that there is no real question to be tried in this regard such as to justify summary dismissal.
In relation to prayer six, concerning the alleged breach of an agreement to sub-lease, it was submitted in substance that while the plaintiff asserts that the first defendant "denied the plaintiff the right to sublease", Mr Di Liristi's real complaint was a breach of cl 4(f) of the special conditions, which is a matter for NCAT to determine. It appeared to me that, to the extent that this aspect of the claim was based upon Matautia's prohibition on Mr Di Liristi's permitting heavy vehicles to be kept on the property even though this was not what Liverpool City Council's Clean-Up Notice required, there might be some support for this claim in the material before the Court on this application. For the reasons already given, NCAT could not determine this claim at present or if the amount claimed exceeded $15,000, as appears to be the case. I do not accept that it has been established that this aspect of these proceedings is an abuse of process or fails to disclose a reasonable cause of action.
I am confirmed in my view that the proceedings as a whole should not be summarily dismissed by the fact that Mr Di Liristi intends to seek leave to amend his summons to add additional claims for relief and that he has sought to issue subpoenas to obtain further evidence. In light of the material before the Court, I am not satisfied that it would be appropriate to deprive Mr Di Liristi of the opportunity to seek that leave or to seek the issue of the subpoenas. Whether leave should be granted or subpoenas issued are not, however, matters to be determined on the present application and I express no view on those matters.
In reaching my conclusions, I have borne in mind the comments of the Court of Appeal in Reisner v Bratt [2004] NSWCA 22 at [4] - [6]:
"4. Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.
5. In deciding what to do when a case is not adequately presented by an unrepresented litigant, it is appropriate for the Court to take into account that, in some cases, the circumstance that one party is unrepresented can place far greater burdens of time and costs on the other party than would be involved if both litigants had competent representation. There are a number of reasons for this, including the following: the time and costs involved in trying to understand and answer claims that are not formulated so as to clearly raise relevant issues can be much greater than where relevant issues are clearly raised; adjournments are often required, because an unrepresented party is not ready to proceed with the case, either because material required for presentation of the case is not available or for other reasons; and when a case is actually heard, the hearing itself may be much longer than if both sides were represented by a lawyer.
6. Where a case is brought before the Court by an unrepresented litigant, and material required for adequate consideration of that person's case is not available or not presented to the Court, it is not generally the case that the Court should itself undertake an investigation of whether such material exists, and if so, seek to have it brought to the Court so that it can be considered. It may be sometimes appropriate for the Court to attempt to have such material available, particularly if the deficiency of the material is obvious and can be remedied without prejudice to the other side; but otherwise, it would generally conflict with the Court's position as an impartial adjudicator for it to take steps to seek to improve an unrepresented litigant's case by investigating whether there is more material to support that case than has been presented to the Court, and then taking steps to obtain that material."
In the circumstances of the present case, these principles are to be applied in the context of a motion for summary dismissal not a final hearing of Mr Di Liristi's summons. In those circumstances, in my view, these principles generally tend to support the conclusion that the proceedings should not be summarily dismissed and that the matter should be allowed to continue so that Mr Di Liristi's claims can be determined after a hearing on the merits, with such admissible evidence as each of the parties chooses or is able to adduce.
One additional matter which weighs, even if only to a very limited extent, in favour of not summarily dismissing the proceedings is that the second defendant has not joined in the application of the first, third and fourth defendants for summary dismissal.
There is one final matter that is required to be addressed. The present application is only for dismissal of the whole of the proceedings. Dismissal of the claims against only the third and fourth defendants was not sought as alternative relief in the notice of motion filed on 20 April 2020. I have serious doubts whether any reasonable cause of action is disclosed as against either of the third and fourth defendants personally. It is not clear, however, that Mr Di Liristi, as a litigant in person, appreciated that anything other than the orders actually set out in the notice of motion might be sought or granted. In these circumstances and at this stage, I do not think it would be appropriate to make an alternative order dismissing the claims against the third and fourth defendants only. Such an approach does not preclude those two defendants making a subsequent application for that relief, which would give Mr Di Liristi an opportunity to consider his position in that regard. In my view, no undue prejudice to the third and fourth defendants would be caused, since they currently share common representation with the first defendant and it is unlikely that any significant preparatory steps taken by their legal representatives would not be taken, in any event, in order to prepare the case on behalf of the first defendant.