Di Liristi v Yosef (No 2)

Decision date: 03 October 2025

Jurisdiction: Common Law

Before: Elkaim AJ

Decision: 1. The defendant has leave to rely on the material contained in Exhibits A and B.
2. The plaintiff has leave to rely on the material contained in Exhibit 1.
3. Subject to the notation below, the defendant’s notice of motion filed on 24 June 2025 is otherwise dismissed with no order as to costs.
4. It is noted that paragraph 19(2) of my judgment delivered on 20 June 2025 contains an error in that the wording of the Type of Claim in the statement of claim is not precisely the same as the wording of the Type of Claim in the amended statement of claim.

Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – order sought under rr 36.15 or 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to set aside an order made for the applicant in the NSW Civil and Administrative Tribunal – on the grounds of error and that the Amended Statement of Claim relied upon was rejected by the Registry for filing

Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4 cl 5
Residential Tenancies Act 2010 (NSW), ss 18, 85
Uniform Civil Procedure Rules 2005 (NSW), rr 3.4, 4.10, 36.15, 36.16

Cases Cited: Di Liristi v Yosef [2025] NSWSC 642
Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111
Evans v Smith (No 2) [2025] NSWCA 139
Johnson v MacKinnon (No 2) [2022] NSWCA 22
Majak v Rose (No 5) [2017] NSWCA 238

Category: Procedural rulings

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

Representation: Counsel:
Plaintiff Self-Represented
Mr D Allen (Defendant)
Solicitors:
Sadek Lawyers (Defendant)

File Number(s): 2025/194652

Publication restriction: No

JUDGMENT

1. The matter before me is a notice of motion filed by the defendant on 24 June 2025. It is supported by an affidavit of the plaintiff’s solicitor, Mr Wassim Sadek, also dated 24 June 2025.

2. Orders are sought under rr 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). These rules relate to the setting aside or variation of a previously delivered judgment.

3. The previously delivered judgment is my decision on a judicial review application made by the plaintiff. It was heard on 18 June 2025. The reasons were published on 20 June 2025 (Di Liristi v Yosef [2025] NSWSC 642). The plaintiff succeeded. I ordered that a decision made in the NSW Civil and Administrative Tribunal (NCAT) on 16 April 2025 should be set aside.

4. The background to my decision is set out in the above judgment.

5. On 3 July 2025, the defendant filed a notice of intention to appeal from the judgment.

Principles

6. UCPR rr 36.15 and 36.16 should only be used sparingly. In Evans v Smith (No 2) [2025] NSWCA 139 Ward P and Stern JA stated, at [5]:

“As is well-known, the power to recall or vary perfected orders under r 36.16(3A) of the UCPR is limited and only to be exercised with circumspection and in exceptional cases. The principle of finality of litigation is fundamental to the administration of justice (see Power v Deputy Commissioner of Taxation (No 2) (2014) 98 ATR 75; [2014] NSWCA 77 (Power) at [3]-[4]). It may be displaced in rare cases such as where there has been a material misapprehension of fact or law, or denial of procedural fairness (see Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6*; State of New South Wales v Hollingsworth (No 2)* [2023] NSWCA 283 (Hollingsworth) at [17]-[22] and Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No 2) [2024] NSWCA 13 at [5]). However, there is high bar to surmount on such applications. In Hollingsworth (citing Majak v Rose (No 5) [2017] NSWCA 238 at [12]) it was said (at [17]) that the power is only to be exercised in cases of ‘readily identifiable, readily rectifiable, inadvertent errors’; (at [18]) that what is required is more than mere dissatisfaction with the result; and (at [20]) that where the application proceeds on the basis of a ‘misapprehension’, what this means is ‘oversight and inadvertence’ not ‘deliberate decisions which are said to be incorrect’.”

7. An overall statement of principle was made by the NSW Court of Appeal in Johnson v MacKinnon (No 2) [2022] NSWCA 22, at [5]:

“Uniform Civil Procedure Rules 2005 (NSW), r 36.16, provides for the setting aside of a judgment upon a motion filed before, or within 14 days after, it is entered, or if it is a default judgment or one given in the absence of a party. The judgment of this Court was neither a default judgment nor given in the absence of a party. The present motion was filed within the relevant 14-day period. However, that does not of itself entitle the applicant to a reconsideration of the judgment. The power to reconsider on such an application is subject to the significant limitation imposed by the public interest in maintaining the finality of litigation, which requires great caution in its exercise, especially where what is sought would have the practical effect of re-opening the proceedings to enable a significant rehearing. The power is to be exercised only in special circumstances, such as where the existing judgment or order is shown to be affected by some relevant irregularity (such as a failure to afford a party a proper opportunity to be heard), or by a misapprehension of law or fact or of a party’s evidence or submissions, which cannot be solely attributed to the neglect or default of the party seeking a reopening, and not to provide a backdoor method by which unsuccessful appellants can re-argue their appeal. And while the scope of any re-opening will depend on the nature of the error or misapprehension, generally the power ought not be exercised to permit a general re-opening of the case; in particular, it is not the purpose or scope of r 36.16 to provide an avenue to raise new grounds of appeal that were not advanced in the appeal, to reagitate arguments that have already been considered by the Court, or to complain of wrong decisions by the appellate court. In this respect, there is a distinction between the court acting upon a misapprehension as to the facts or the relevant law, on the one hand, and, on the other, the court reaching a conclusion which, in the view of the applicant for reconsideration, involves error.” (footnotes omitted)

8. Another relevant decision is Majak v Rose (No 5) [2017] NSWCA 238, from [12]-[13]:

“12. The rule is, like all rules made under the Uniform Civil Procedure Act 2005 (NSW), subject to the ‘overriding purpose’ of facilitating the ‘just, quick and cheap resolution of the real issues’ between the parties to litigation (s 56). It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick, and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court’s resources.

13. It is well established that a court’s jurisdiction to set aside orders should be exercised sparingly and with caution, having due regard to the importance of the finality of litigation (see, for example, Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 at 684; [1982] HCA 41; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38; [1982] HCA 51; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302; [1993] HCA 6; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2); Carelli v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9]).”

9. Finally, there is also Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111, at [4]:

“The relevant principles are well established. The power conferred by UCPR r 36.16 is to be exercised ‘sparingly and with caution’ and ‘does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them’. The purpose of the power is ‘to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal’. ‘Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard’. It is true that it may also be exercised where ‘the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and ... this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing’. However, the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect.” (footnotes omitted)

The defendant’s notice of motion

10. The defendant, in a written outline, said the motion was based on two grounds:

“a. There is an error in reasons for judgment, and

b. The Amended Statement of Claim tendered, was in fact rejected by the District Court.”

The error in the reasons

11. The defendant said the ‘offending’ portions of the judgment were [37] and [41]. They are:

“37. A common issue between the NCAT proceedings and the District Court proceedings is whether there was a fixed term agreement or a periodic agreement.

…

41. Consequently, contrary to the defendant’s submission, estoppel is clearly raised, whether legally correct or not. It is also to be remembered that the plaintiff is self-represented, and some leeway must be given to him in interpreting his pleadings. In addition, the estoppel allegation again raises the issue of the existence of a periodic or of a fixed term agreement.”

12. I understood it was the final sentence of paragraph 41 that contained the asserted error, in that there never could have been a fixed term tenancy.

13. The defendant served a notice of termination on the plaintiff on 11 December 2024. As at this date, s 85 of the Residential Tenancies Act 2010 (NSW) read:

Termination of periodic agreement—no grounds required to be given

(1) A landlord may, at any time, give a termination notice for a periodic agreement.

(2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.

(2A) Despite subsection (2), in the case of an employee or caretaker residential tenancy agreement, the termination notice must specify a termination date that is—

(a) on or after the end of the period of notice for termination agreed to by the landlord and the employee or caretaker in that agreement or arrangement, or

(b) not earlier than 28 days after the day on which the notice is given,

whichever is the later date.

(3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

(4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.

14. Another important provision is Sch 4 cl 5 of the Civil and Administrative Tribunal Act 2013 (NSW):

5 Relationship between Tribunal and courts and other bodies in connection with Division functions

(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.

(2) However, court does not, for the purposes of this clause, include—

(a) a court, tribunal, board or other body or person that, in relation to a particular matter, is empowered by law to impose a penalty, admonition or other sanction for a contravention of a law or for misconduct or breach of discipline proved to have been committed in connection with that matter but is not empowered to award or order compensation or damages in respect of that matter, or

(b) (Repealed)

(c) the Ombudsman, or

(d) any person exercising the functions of an ombudsman under any law of the Commonwealth, or

(e) any person authorised, under a law of the State or of the Commonwealth or of another State or a Territory, to make decisions or orders, or give directions, that are binding only on one party to a dispute.

(3) Effect of application to Tribunal or court If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue.

(4) Subclause (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn.

(5) Subclause (3) does not prevent a court from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal in exercise or purported exercise of a Division function is invalid for want of jurisdiction or from making any order as a consequence of that finding.

(6) For the purposes of subclause (3), an issue arises under an application made to the Tribunal for the exercise of a Division function only if the existence of the issue is shown in the applicant’s claim or is recorded in the record made by the Tribunal in accordance with this Act.

(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. (Underlining added as emphasis)

15. At the core of my decision was the finding that there were common issues between the NCAT proceedings and the District Court proceedings, thus terminating NCAT’s jurisdiction.

16. The common issues that I identified included the validity of termination notices served by the defendant (for example, paragraphs 24, 28, 29, 30, and 33), the term of the lease, whether it was fixed or periodic (for example, paragraphs 36, 37 and 41) and the “whole of the relationship between the parties” (paragraph 42).

17. The asserted error is that whether or not there was a periodic agreement was not a common issue because, “as at 11 December 2024, and thereafter, there was no common issue between the District Court and NCAT proceedings as to whether the tenancy was fixed or periodic”. 11 December 2024 is the date the defendant served a notice of termination of the lease on the plaintiff.

18. The defendant’s submission continued: “On the plaintiff’s pleading, the plaintiff accepted that after 1 September 2024, the tenancy was periodic.” 1 September 2024 is three years from the date the lease commenced. Section 18 of the RTA states:

Fixed term agreements to continue as periodic agreements after end of fixed term

A fixed term agreement that continues after the day on which the fixed term ends continues to apply—

(a) as if the term of the agreement were replaced by a periodic agreement, and

(b) on the same terms as immediately before the end of the fixed term.

19. The defendant’s point was that the fixed term agreement had commenced on 1 September 2021 and therefore become a periodic tenancy under s 18 from 1 September 2022 (under the lease agreement which has a term of 1 year). Even if the plaintiff was correct in asserting that the term of the lease was three years, that term would have ended on 1 September 2024 and so, as at the date the notice of termination was served (11 December 2024) there was no basis upon which the tenancy could be regarded as other than periodic.

20. Although the plaintiff said that the tenancy was for three years with two options to renew for another three years, this is contrary to the lease, and perhaps the plaintiff’s own pleadings. But it should also be remembered that at the primary hearing the plaintiff, in two affidavits, suggested the lease was for nine or ten years.

21. The defendant submitted that the best any estoppel could do would be to stop any argument about the term of the tenancy up to 1 September 2024. Accordingly, there was an error in my judgment in finding that the question of whether or not there was a periodic tenancy was common to the District Court proceedings and the NCAT proceedings.

22. The defendant may be correct that as at 11 December 2024 the tenancy had become periodic, but that does not prevent any argument about the nature of the tenancy before 1 September 2024, and that argument being common to the District Court proceedings and the NCAT proceedings. The termination notice may have remained valid, but the plaintiff would not have been prevented from arguing the matter in either of the proceedings. He probably would have lost the argument, but the issue remained common to both jurisdictions.

23. The defendant does have a good point that there could only have been a periodic tenancy on 11 December 2024, but I am not prepared to say that this argument must lead to a finding of error on my part, in particular, sufficient to generate action under the relevant rules.

24. It is obvious that the rules must be used sparingly, and I think it will be a matter for the Court of Appeal to decide if there was error on my part. Another reason that I am reluctant to intervene is that it will be seen from the discussion below that I remain of the view that even if the periodic tenancy point was not common to both proceedings, there was still a common argument relating to termination notices which would have, in any event, removed NCAT’s jurisdiction.

The rejection of the amended statement of claim

25. At the commencement of the hearing counsel for the defendant said that he had identified an error that is not referred to in the motion or in the written submissions filed in support of the motion.

26. The plaintiff initially objected to the error being raised, but once it was fully explained he conceded that an error did in fact exist, but, he said, it was of no consequence.

27. At paragraph 19 of my judgment I described, or referred to, a number of attachments that had been before the NCAT member on 16 April 2025. I said that the contents of the statement of claim filed in the Parramatta District Court on 23 August 2023 under the heading Type of Claim were precisely the same as what is written in the same section of the amended statement of claim lodged on 1 March 2024. The latter includes the words “Termination Notices”. The error is that the 23 August 2023 statement of claim does not contain these words.

28. From paragraph 28 of my reasons, I returned to the inclusion of “Termination Notices” and then said at paragraph 30:

“The Member did not feel it necessary to request a copy of the whole of the amended statement of claim, which I think he should have done, but, in any event, the reference to ‘Termination Notices’ in the Type of Claim portions of the pleadings should have raised the overlapping of issues.”

29. It is important to note that in paragraph 30 I referred to the reference to Termination Notices in the pleadings which includes both the original statement of claim transferred from the local Court in 2023, and the amended statement of claim, initially lodged on 1 March 2024, and rejected the same day and then, seemingly again on 7 May 2024. The apparent filing on 7 May 2024 followed a notice of motion filed by the plaintiff, which was heard by Abadee DCJ the day before, and after his Honour gave the plaintiff leave to file the amended statement of claim.

30. The service of the termination notice on 11 December 2024, and the hearing before NCAT on 16 April 2025, obviously postdate the filing of the amended statement of claim on 7 May 2024, so that the inclusion in the amended statement of claim of the words “Termination Notice” still allows the same point to be made as that made in paragraph 30 of my reasons.

31. This leads to the defendant’s second point concerning the rejection of the amended statement of claim lodged on 1 March 2024. It is now clear from Mr Sadek’s affidavit that this pleading was rejected on the same day by the District Court Registry. This does not signify an error in the earlier judgment because the rejection was not before the Court at the hearing.

32. The difference arising from the new information might have been significant but for the apparent filing of the amended statement of claim on 7 May 2024. If this filing was valid, it also pre-dated the NCAT hearing on 16 April 2025 and therefore the rejection of the lodging on 1 March 2024 has no consequence. If, as submitted by the defendant, the amended statement of claim was not filed until 9 May 2025 (or 10 May as suggested by Mr Sadek), then the absence of a pleading raising “Termination Notice” would have been a significant point as to whether there was any overlapping of issues when the matter came before NCAT on 16 April 2025.

33. There is no doubt that the plaintiff raised the jurisdictional issue at the NCAT hearing. Quoting from the transcript of the NCAT hearing:

“SADEK This is a straight forward application

SMITH I just want to hear what the issue with Jurisdiction is

DI LIRISTI I just said that so many times, and you’re ignoring it, do you want me to repeat it again,

SMITH I’m not ignoring it, don’t read it, tell me what it is

DI LIRISTI NCAT does not have jurisdiction to deal with this application, for termination”

34. As in my previous reasons, I think a chronology, derived from Exhibits A, B, and 1, (and Exhibit A from original Hearing) (tendered by the defendant and the plaintiff respectively), and Exhibit A from the original Hearing is useful.

| 23/08/2023 | The plaintiff’s statement of claim, originally filed in the Local Court is received by the Parramatta District Court. | | 01/03/2024 | The plaintiff’s amended statement of claim is filed via the Online Registry Website. Later, on the same day the filing is “voided” by the Registrar because it is “out of time and without leave of the Court”. | | 05/03/2024 | Plaintiff files a notice of motion seeking leave to file an amended statement of claim. | | 06/05/2024 | Abadee DCJ in the District Court at Parramatta, makes the following notations and orders: “NOTATIONS: 1. The Court notes that the solicitor for the defendant does not oppose the Notice of Motion dated 12 December 2023. 2. The Plaintiff is seeking an Ancillary Equitable Relief Injunction Order under Section 46 of the District Court Act. ORDERS by Consent: 1. Leave is granted to amend the Statement of Claim filed 23 August 2023. 2. Costs on the Notice of Motion payable to the Plaintiff.” | | 07/05/2024 | The plaintiff, via Melissa, emails the amended statement of claim to Parramatta District Court for filing. The Court emails back: “Dear Melissa Thank you for the Statement of Claim dated 6 May 2024. Please find attached the filed and stamped Amended Statement of Claim dated 6 May 2024 to serve to the Defendant. Yours Faithfully, Parramatta District Court” | | 22/08/2024 | The defendant files a defence to the amended statement of claim. | | 09/05/2025 | The amended statement of claim is stamped by the Parramatta District Court as being filed at 9.28am. At 9.36am the Parramatta District Court emails Melissa: “Dear Melissa We cannot locate the unfiled Amended Statement of Claim dated 29 February 2024 that you sent to the District Court Registry on 6 May 2024 after the orders made by Abadee DCJ on 6 May 2024, could you provide us a copy of that unfiled Amended Statement of Claim dated 29 February 2024 or you can re-file it online Yours Faithfully, Parramatta District Court” At 9.45am Melissa replies: “Dear Parramatta District Court Please find the Amended Statement of Claim dated 6 May 2024 as per your request, (which is the same as the Amended Statement of Claim was filed on 29 February 2024), please note that the Amended Statement of Claim was filed and stamped on Friday, 10 May 2024 11:14am, please see email below Please let me know if there is anything else you need from me Thank you Melissa” |

35. The above chronology has a number of ‘oddities’:

36. Why did the defendant file a defence to the amended statement of claim if there was not a valid pleading requiring a response?

37. Why did Parramatta District Court send Melissa an email at 9.36am, on 9 May 2025, requesting the amended statement of claim if it had been stamped as filed at 9.28am?

38. Melissa’s email on 9 May 2025 refers to a filing on 29 February 2024 and on 10 May 2024, both of which dates are incorrect.

39. Why does the email from the court on 9 May 2025 refer to an unfiled amended statement of claim when the email from the court on 7 May 2024 specifically referred to the “filed and stamped” amended statement of claim?

40. Why was the defendant ordered to pay the costs of the motion when she had consented to the orders?

41. I asked counsel for the defendant about the first oddity. This exchange occurred:

“HIS HONOUR: Why did you put on an amended defence?

ALLEN: I can only say from the Bar table why that occurred.

HIS HONOUR: It is just odd.

ALLEN: It is odd. I did ask the question myself and the answer was my clients had a copy of an Amended Statement of Claim so they dealt with it, without realising that there was an error on the part of my clients because they did not realise that the filing had been rejected. They had it so they answered it, that's the answer.

HIS HONOUR: I wonder why the Registry accepted it.

ALLEN: Perhaps it is a peculiarity of being in the Parramatta Registry. The whole conduct of the proceedings your Honour can probably tell from the submissions of the plaintiff served on Friday that the proceedings have not proceeded in the regular course in terms of people filing documents through the electronic Registry.”

37. Another point arising from this exchange is that the pleading filed on 7 May 2024 was never rejected by the Registry. The only rejection was of the 1 March 2024 lodging. The 7 May 2024 pleading may have gone missing in the Registry, but it was never rejected.

38. In his affidavit Mr Sadek sets out the results of inquiries he made of the Parramatta District Court Registry following my above judgment. In paragraph 11 of his affidavit Mr Sadek says the documents he obtained from the Registry led to the following conclusions:

“a. The ASOC was filed without leave of the Court and was immediately rejected by the Court for filing pursuant to a notice of rejection dated 1 March 2024 (page 66 of WS-2).

b. On 5 March 2024, the plaintiff filed a Notice of Motion seeking leave to amend his Statement of Claim filed 23 August 2023 (page 5 of WS-2).

c. The Statement of Claim filed 23 August 2023 appears at pages 38 to 65 of WS-2.

d. On 6 May 2024, the Notice of Motion was before Judge Abadee granting the plaintiff leave to amend his statement of claim filed 23 August 2023 (page 65 of WS-2).

e. On 10 May 2025, the plaintiff filed an Amended Statement of Claim in the form tendered in my earlier affidavit.”

39. In his points Mr Sadek omits (I do not suggest deliberately) the events of 7 May 2024 and the filing of the defence to the amended statement of claim on behalf of his client. He is also wrong in saying the document was filed on 10 May 2025. The pleading clearly indicates it was filed on 9 May 2025.

40. This brings me to the validity, or otherwise, of the apparent filing of the amended statement of claim on 7 May 2024. UCPR r 4.10 states:

(1) A person may lodge a document for filing in relation to any proceedings—

(a) by delivering it to an officer of the court in the registry, or

(b) by sending it by post to the registry’s business address.

(c) (Repealed)

(2) Any person may lodge a document with an officer of the court for the purpose of its being filed in relation to proceedings, or proposed proceedings, in the court.

(3) Unless acceptance of the document is subsequently refused by the court or by an officer of the court, a document is taken to have been filed when it is lodged for filing.

(4) The court may refuse to accept a document for filing whether or not an officer of the court has accepted the document for filing.

(5) An officer of the court may refuse to accept a document for filing in the following circumstances—

(a) in the case of originating process—

(i) if the location specified in the document as the venue at which the proceedings are to be heard is a location at which the court does not sit, or

(ii) if the person on whose behalf the originating process is sought to be filed is the subject of an order of the Supreme Court declaring the person to be a vexatious litigant,

(b) in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment.

41. The amended statement of claim sent by email on 7 May 2024 was neither delivered to an officer of the court in the registry or sent by post to the registry’s business address. The pleading may have fallen under the rules relating to the Online Registry. Rule 3.4 permits documents to be filed using the Online Registry. I do not know if Melissa was a registered user of the Online Registry, but r 3.4(3) states:

“A document that is filed by means of Online Registry is taken to have been filed when Online Registry gives notice of acceptance of the document.”

42. Whatever the technical basis was for the filing, the registry emailed Melissa on 7 May 2024 stating:

“Please find attached the filed and stamped Amended Statement of Claim dated 6 May 2024 to serve to the Defendant.”

43. Notably, at the foot of the registry’s email on 7 May 2024 it is stated:

“You can now file civil court forms online at: http://www.onlineregistry.lawlink.nsw.gov.au”

44. In my view the amended statement of claim sent by Melissa on 7 May 2024 must be regarded as having been filed. This is the clear import of the email back from the court. This is consistent with the stamped copy of the pleading (p 148 of Exhibit 1) and with the defendant filing a defence to the amended statement of claim. As to the various oddities regarding dates and the use of the word “unfiled” in the court’s email on 9 May 2025, I have no answer. Perhaps there is some correctness in counsel’s suggestion of “peculiarities”, but absent an explanation I think the stamped copy of the pleading, accepted as filed by the court on 7 May 2024, must prevail.

45. Accordingly, if the amended statement of claim is regarded as having been filed on 7 May 2024, then NCAT did not have jurisdiction on 16 April 2025 when the matter came before General Member Smith. It also follows that the error in paragraph 19(2) of my earlier judgment, which I regret, is of no consequence.

Conclusion

46. I make the following orders and notation:

47. It is noted that paragraph 19(2) of my judgment delivered on 20 June 2025 contains an error in that the wording of the Type of Claim in the statement of claim is not precisely the same as the wording of the Type of Claim in the amended statement of claim.

48. The defendant has leave to rely on the material contained in Exhibits A and B.

49. The plaintiff has leave to rely on the material contained in Exhibit 1.

50. The defendant’s notice of motion filed on 24 June 2025 is otherwise dismissed with no order as to costs.

**********

Amendments

03 October 2025

(No 2) added