Di Liristi v Shahata

Medium Neutral Citation: Di Liristi v Shahata [2025] NSWSC 1325

Hearing dates: 31 October 2025

Date of orders: 31 October 2025

Decision date: 31 October 2025

Jurisdiction: Equity - Duty List

Before: Slattery J

Decision: Plaintiff’s caveat struck out as defective. Plaintiff ordered to pay the defendant’s costs of the contest in relation to the caveat. Costs payable forthwith. Defendant granted leave to file an amended statement of claim to reflect the interest by the caveat.

Catchwords: LAND LAW – Caveats – extension of caveat – plaintiff’s application to extend caveat over the defendant’s commercial property – the plaintiff is the lessee under a commercial lease agreement – the plaintiff claims an equitable interest in the defendant’s property on account of the plaintiff’s claimed expenditure in the property – but the substance of the caveat does not reflect the interest articulated by the caveator in court on this application – defendant claims the plaintiff/lessee is in default in paying rent – caveator claims there was an agreement to waive rent by the defendant – defendant disputes any arrangement to waive rent – whether caveat should be struck out – whether plaintiff should be given leave to amend his Statement of Claim to reflect the interest claimed in the property as articulate on this application.

Legislation Cited: Real Property Act, 1900, s 74J

Cases Cited: Al-Jaradat v Ghunmat [2025] NSWSC 1283

Texts Cited: N/A

Category: Consequential orders

Parties: Plaintiff: Antonio Di Liristi
Defendant: Sarah Shahata Abd Elmeseh Yosef

Representation: Counsel:
Defendant: A. Rizk
Solicitors:
Plaintiff: in person
Defendant: W.Sadek, Sadek Lawyers

File Number(s): 2025/398001

Publication restriction: No

EX TEMPORE JUDGMENT

1. The plaintiff, Mr Antonio Di Liristi, leases property pursuant to a residential tenancy lease from the defendant, Sarah Shahata Abd Elmeseh Yosef. The lease relates to a rural property on which the plaintiff conducts a non-profit enterprise and on which the plaintiff resided for some time.

2. The plaintiff and the defendant have conducted hostile litigation in several jurisdictions. The present matter before the Court relates to the removal of a caveat over the subject property. The caveat claims:

ESTATE OR INTEREST CLAIMED

Estate In Fee Simple

By virtue of: Adverse Possession

Details Supporting the Claim: Arising from construction of buildings and improvements which now attach to the land.

3. The plaintiff appeared for himself, and Mr A Rizk of counsel appeared on behalf of the defendant, instructed by Sadek Lawyers.

The Contests between the Plaintiff and the Defendant

4. The plaintiff has been in possession of the property under the lease for a number of years. The defendant has been seeking in the New South Wales Civil and Administrative Tribunal (NCAT) to terminate the lease, which has become a periodic lease, and evict the plaintiff from the property. The plaintiff resists eviction on the basis that he was promised a long-term lease in exchange for investment in improvements in the property.

5. The defendant denies that any arrangement for a long-term lease was made and denies that the plaintiff expended money in the property on the faith of such an arrangement. To the extent that the plaintiff alleges that such an arrangement was made with a predecessor in title of the defendant, the plaintiff’s claim may potentially be answered by the defendant’s indefeasibility of title.

6. The defendant also contends that the plaintiff has not paid rent for some time and that substantial arrears of rent have accumulated under their lease. The plaintiff says that although cash rent has not been paid, an agreement was made that the rent was not due and payable in the short term, as part of the overall arrangement of a long-term lease in exchange for the plaintiff’s financial expenditure on the property. At this stage, the Court cannot resolve such a dispute.

7. The plaintiff commenced proceedings for damages in the District Court of New South Wales at Parramatta, alleging breach of the lease. The plaintiff has also brought separate proceedings before this Court for judicial review of a decision of NCAT to grant an order for possession of the property in favour of the defendant. That judicial review proceeding was decided in favour of the plaintiff. The defendant says today that he intends to appeal from that decision. The plaintiff says that appeal would be out of time.

8. The defendant caused an application for a caveat lapsing notice to be filed with Land Registry Services on 15 September 2025. Land Registry Services issued the lapsing notice to the plaintiff on 19 September. The lapsing notice was served by registered post and was posted on 22 September. The Australia Post tracking evidence indicates that the registered post envelope was received by the plaintiff on 25 September, and therefore that the caveat lapsed 21 days later on 16 October, well before the plaintiff came to Court to extend the caveat.

9. The Land Registry Services sent an email to the plaintiff which appears to indicate, somewhat misleadingly, that the caveat lapsed on 23 October. The plaintiff applied to Brereton J as duty Judge on 22 October by Summons to extend the caveat.

10. Preliminary argument took place between the parties as to whether the caveat had expired or not. The caveat may indeed have expired. The statutory 21 days had certainly expired before the plaintiff approached the Duty Judge. But the Land Registry Services email to the plaintiff was misleading and it is understandable that the plaintiff approached the Court to extend the caveat only on 22 October. The plaintiff is not to blame for relying upon the email and for approaching the Duty Judge when he did, and the Court will not decide this matter on the basis that the plaintiff is out of time.

The Validity of the Caveat

14. The plaintiff contends that he was promised a nine-year lease of the property, and as a result he invested in expenditure upon improvements on the property commensurate with his continuing with a nine-year lease and that his expenditure was only been made on the faith of a promise of such a nine-year lease. The plaintiff’s claim in form resembles a proprietary estoppel or equitable estoppel case. It may possibly result, if established after a contest, in a declaration in the plaintiff’s favour of an equitable interest in the property of some kind. The plaintiff may possibly be granted a lease in equity, or in the alternative he may gain an award of equitable compensation.

15. But success on the plaintiff’s claim would not result in anything like what is claimed in the caveat. The caveat seeks an estate “in fee simple”. The claim articulated orally by Mr Di Liristi could never result in an estate “in fee simple”. At best it would result merely in a lease for a period of up to nine years.

16. The caveat is defective for other reasons. The caveat claims the estate in fee simple was acquired by adverse possession. That description of the interest claimed is completely at odds with the case now being put, which is not a claim by adverse possession at all. The plaintiff’s present claim in effect is to expand the rights to possession which exist under the current residential tenancy agreement, through which the registered proprietor gave possession consensually to the plaintiff. On the case which the plaintiff articulates today, the plaintiff’s present possession of the property was not acquired contrary to the registered proprietor’s consent. Moreover, no right of adverse possession appears to have arisen by lapse of time on any available construction of the available evidence.

17. The relevant law is not in doubt. The Court recently set out the relevant authorities with respect to the validity of interests claimed in caveats in Al-Jaradat v Ghunmat [2025] NSWSC 1283, [24]-[26], as follows:

24. The applicable legal principles are well-established. Where removal of a caveat is sought and a counter-claim for its extension is made, the Court must be satisfied under Real Property Act 1900, s 74K(2) that "the caveator's claim has or may have substance". If the Court is not so satisfied, then the Court must dismiss the application for extension of the caveat: Sutherland v Vale [2008] NSWSC 759 at [10]-[12].

25. A central concept of the Real Property Act and regulations is that "the nature of the estate or interest claimed" by the caveator under the Real Property Regulations must be fully and precisely articulated, as was explained by Brereton J in Sutherland v Vale at [12]:

12 The starting point, however, is to consider whether or not this caveat has or may have substance. In order to judge that, it is necessary to turn first to the caveat itself and the claim stated in it. As I have recorded, that claim is for merely "an equitable interest". In Hanson Construction Materials Pty Ltd v Vimwise Civil Engineering Pty Ltd [2005] NSWSC 880; (2006) NSW ConvR ¶56-137, Campbell J explained why a caveat which claimed merely "an equitable interest" was insufficient to specify the interest claimed by the caveator as required by the relevant provisions of the Real Property Act and (NSW) Real Property Regulation 2003 [see also Circuit Finance Pty Ltd v Crown & Gleeson Securities Pty Ltd [2005] NSWSC 997; (2006) NSW ConvR ¶56-143]. Real Property Regulation provides, by clause 7, that a caveat must specify the particulars as set out in Schedule 3 in relation to the estate or interest to which a caveator claims to be entitled. A central concept in the Act and the Regulation is that of "the nature of the estate or interest claimed" by the caveator: it is that claim that the Court must be satisfied has or may have substance before making an order. The characterisation and description of the nature of the estate, interest or right claimed by a caveator is more than a mere formal requirement of the provisions of the Act, but goes to the heart and substance of their operation, because without a description of the estate, interest or right claimed, neither the Registrar-General nor a person reading the caveat can know whether a dealing would adversely affect the estate claimed, nor can the Court tell whether the caveator's claim has or may have substance. As I endeavoured to explain in Circuit Finance, the insufficiency of a description as "an equitable interest" is further illustrated by Schedule 3, sub-cl 10 of the Real Property Regulation, which provides that it is not necessary to specify whether the estate or interest claimed is legal or equitable (at [28]); it would follow that if a caveat claiming an equitable interest were sufficient, then so would be one which merely claimed an “interest”. Yet that of course would not at all describe the nature of the estate or interest claimed.

26. Williams J further explained in Comserv (No 210) Proprietary Limited v Ristevski [2022] NSWSC 821 at [65], the ameliorating provision of s 74L, which allows the Court to disregard failures of the caveator to comply strictly with the requirements of s 74K and regulations, does not permit the Court to overlook the fact that if the caveat claims a different estate or interest than that asserted on the hearing of the application to extend the caveat or fails to give sufficient particulars of the estate of interest, then s 74L is not available to save it: see also Woodsman Pty Ltd v Jozic [2018] NSWSC 1311 at [11]-[17].

18. In the Court’s view, the caveat should be removed. The caveat’s claim of an estate in fee simple is quite different in substance from the plaintiff’s true claim of holding a nine-year equitable lease by estoppel. And the plaintiff’s claim of an estate by adverse possession is quite different in substance from the plaintiff’s true claim of having the registered proprietor’s consent to a longer lease than was first granted to him. The caveat cannot be extended, and the Court will therefore strike it out with costs.

19. These proceedings should be properly pleaded to reconcile what the plaintiff says today is his true claim, with his pleaded case. Moreover, the future course of these somewhat chaotic proceedings should properly balance the parties’ interests in the interlocutory period pending hearing.

20. These proceedings should go into the real property list, and the Court will refer the proceedings into that list as part of the orders made today. The real property list Judge will hereafter manage the proceedings.

21. But before the proceedings join that list it should perhaps be observed that the current situation is somewhat unstable in that the plaintiff has an equitable claim over the property that is presently unsupported by any caveat. As Duty Judge I have not made any order authorising or prohibiting the filing of future caveats by the plaintiff over the property. But should the plaintiff seeks to inhibit the defendant’s future dealings with the property (by caveat or injunction) there may well be a case for the plaintiff to pay into Court a reasonable occupation fee as a condition of his continued occupancy the property. This would be security, in the event that he fails to obtain final relief in the proceedings, whilst in the meantime he enjoys rent-free occupation of the property and the substance of any undertaking as to damages that he might give is untested. But this of course will be a matter for the Real Property List Judge.

Conclusion and Orders

22. Accordingly, the Court makes the following orders and directions:

23. REVOKE Order 1 of the orders made by Brereton J on 22 October 2025.

24. CAVEAT AU567074 is struck out.

25. ORDER the plaintiff to pay the defendant’s costs of the application today.

26. COSTS are payable forthwith.

27. GRANT leave to Mr Di Liristi to file an amended statement of claim by 21 November 2025 pleading relief in these proceedings by way of proprietary estoppel or any other relief he claims.

28. ORDER that District Court proceedings (2023/00288890) between these parties be transferred to this Court.

29. ADJOURN these proceedings into the Real Property List for directions on 28 November 2025.

30. VACATE the listing of these proceedings in the Equity Duty List on Tuesday 4 November 2025.

31. ORDER the defendant to notify the plaintiff when the refinancing of the subject property is complete and ORDER the plaintiff not to file another caveat on the subject property prior to such notification by the defendant.

32. ORDERS to be entered forthwith.

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