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[2025] NSWSC 642
General information, not legal advice.
Supreme Court of NSW
2025-06-20
Elkaim AJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Di Liristi v Yosef [2025] NSWSC 642
Hearing dates: 18 June 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: 1. The orders made in the NSW Civil and Administrative Tribunal (NCAT) on 16 April 2025 No 2025/00114619 are set aside.
2. The defendant is to pay the plaintiff’s costs of the proceedings, noting that the plaintiff is self-represented.
Catchwords: ADMINISTRATIVE LAW — Jurisdictional error — Whether NSW Civil and Administrative Tribunal ("NCAT") had jurisdiction to determine tenancy when District Court proceedings already afoot — Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 5(7) — Where District Court proceedings concerned the relationship between landlord and tenant — Where NCAT proceedings sought enforcement by the landlord of a s 85 termination notice — Whether there was an overlapping of issues between the NCAT proceedings and the District Court proceedings
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 38(2), Sch 4 cl 5(7)
Residential Tenancies Act 2010 (NSW), ss 85, 87
Cases Cited: Di Liristi v Matautia Developments Pty Ltd (No 2) [2020] NSWSC 862
Owners Corporation - Strata Plan 64807 v BCS Strata Management Pty Ltd (2020) 19 BPR 40,861; [2020] NSWSC 1040
Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289
Category: Principal judgment
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
On 21 May 2025, the plaintiff filed a summons seeking judicial review of a decision made in the NSW Civil and Administrative Tribunal (NCAT) on 16 April 2025. The decision was made by a General Member, Mr Stephen Smith.
The orders made in NCAT were:
“1. The Tribunal orders the Residential Tenancy Agreement is terminated on 19 May 2025 and vacant possession is to be given to the landlord on r before 19 May 2025.
2. The tenant is to pay the landlord a daily occupation fee at the rate of $60.00 per day from the day after the date of termination, 19 May 2025, until the date vacant possession is given.
3. The landlord may request the relisting of this application to determine the occupation fee owing, within 60 days from the date of possession.”
The plaintiff wishes the orders to be set aside. The defendant opposes the plaintiff’s application.
The basis for the judicial review is the alleged lack of jurisdiction which the Member purported to exercise in making the above orders. A secondary basis of a lack of procedural fairness was raised in the summons but not referred to in oral submissions.
The defendant is the registered owner of a property in Bringelly, a suburb in Western Sydney. I think the best way to continue the background is through a chronology:
| 18/08/21 | The plaintiff and the defendant executed a lease whereby the defendant’s premises in Bringelly are leased to the plaintiff. | | 21/11/21 | A statement of claim was filed by the plaintiff in the Local Court (22/121865). The contents of the statement of claim are not known. | | 29/11/21 | NCAT proceedings (21/48835) filed by the defendant are dismissed. | | 15/11/22 | NCAT proceedings (22/50751) filed by the defendant are dismissed. | | 22/05/23 | NCAT proceedings (23/23526) filed by the defendant are dismissed. | | 23/08/23 | The Local Court proceedings were transferred to the District Court. | | 29/02/24 | NCAT proceedings (24/55715) filed by the defendant are dismissed. | | 01/03/24 | An amended statement of claim was filed in the District Court (23/288890). This document came into evidence as Exhibit B. | | 04/03/24 | NCAT proceedings (24/82818) filed by the defendant are dismissed. | | 22/08/24 | The defendant filed an amended defence to the amended statement of claim. | | 11/12/24 | The defendant served (by substituted service) a notice of termination of the lease on the plaintiff, requiring the plaintiff to vacate the premises by 11 March 2025. The plaintiff did not do so. | | 18/03/25 | The defendant filed an application in NCAT, (25/00114619) for termination of the lease and possession of the property. | | 16/04/25 | The defendant’s NCAT application was heard and decided by General Member Mr S Smith. This decision is the subject of the judicial review summons. | | 09/05/25 | An amended statement of claim was filed in the District Court. |
“Applicant: SARAH SHAHATA ABD ELMESEH YOSEF
Respondent: TONY DI LIRISTI
On 30-Nov-2022 the following orders were made:
- The application is dismissed because:
The Tribunal has no jurisdiction to determine the application.
Oral reasons provided.
M Zraika, Tribunal Member
30/11/22.”
There is no transcript of the oral reasons but there is confirmation that the application was dismissed for want of jurisdiction.
The next clue is that an investigator retained by the plaintiff wrote to a former solicitor for the defendant, Mr Bloom, on 14 April 2025 asking, by email, a number of questions. As I read the email correspondence Mr Bloom conceded that:
There had been four previous applications by the defendant brought at NCAT which were dismissed because NCAT did not have jurisdiction to hear the matters.
NCAT did not have jurisdiction because of “Schedule 4 – Part 5(7) Special Practice and Procedure Civil and Administrative Tribunal Act 2013.”
I think it worth quoting this question and answer from the email:
“7. Is it true that your former client Shahata Abd Elmeseh Yosef has filed Five (5) Termination Applications with the NSW Civil & Administrative Tribunal (NCAT) against Mr Antonio Di Liristi being file #’s 2148835, 2250751, 2323526. 202400055715, and 202400082818 all of which have been Dismissed because the NSW Civil & Administrative Tribunal (NCAT) does not have Jurisdiction to hear your former clients Applications because of Schedule 4 – Part 5 (7) Special Practice and Procedure Civil and Administrative Tribunal Act 2013 CORRECT”
Without having seen the five previous applications I cannot say they are precisely the same as the application with which these reasons are concerned, in particular as to which section of the Residential Tenancies Act 2010 (NSW) (RTA) the defendant relied upon.
Schedule 4 cl 5 of the Civil and Administrative Tribunal Act 2013 (NSW), referred to above, is fundamental to the case:
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.
The plaintiff submitted that the jurisdiction question was brought to the attention of the Member and was effectively ignored or rejected. The defendant countered that:
the Member was not made aware of the jurisdictional issue; and
there was no issue common to the NCAT application and the District Court proceedings.
The defendant emphasised the point of Sch 4 cl 5(7) was to avoid inconsistent findings in different jurisdictions. This was stated by Williams J in Owners Corporation - Strata Plan 64807 v BCS Strata Management Pty Ltd (2020) 19 BPR 40,861; [2020] NSWSC 1040 at [45], this judgment concerned cl 5(3) which is the counterpart to cl5(7) when the NCAT proceedings precede the Court proceedings :
“I respectfully agree with White J’s description of the object of cl 5(3) of Sch 4 to the CAT Act in Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd at [105], and note that it would be inconsistent with that purpose if there could be concurrent proceedings in the Tribunal and the Court in respect of the same substantive issues, and a consequent risk of inconsistent findings concerning those issues, merely because the issues arose under a form of application to the Tribunal that was styled as an interim application. As I have said, I do not understand Parker J to have suggested in in The Owners – Strata Plan No. 54026 v Ternes (supra) that cl 5(3) of Sch 4 should be construed or applied in this manner. On the contrary, his Honour identified (correctly, in my respectful opinion) the importance on focussing on the substance of the real legal and factual issues raised by the Tribunal proceeding and the Court proceeding in question.”
85 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.
The defendant said that there had been no reliance by the defendant on any other section of the RTA and none of the matters raised in support of the s 85 application overlapped with any component of the District Court proceedings. It was pointed out that the District Court proceedings sought damages.
The amended statement of claim filed on 1 March 2024 obviously precedes the filing of the defendant’s application in NCAT. This then leads to the two questions posed by the defendant: was NCAT made aware of the jurisdictional issue and was there any overlap of issues between the District Court proceedings and the NCAT proceedings.
The Court Book includes a transcript of the hearing before the Member on 16 April 2025. The Member seems to have adopted what he perceived to be a pragmatic approach of, in effect, ‘What does it matter, you will have to vacate the premises sooner or later’. In taking this approach the Member seems to have treated the plaintiff with a degree of disdain. I hesitate to be overly critical of the Member because having experienced the plaintiff, who was self-represented, pursuing his case before me, a degree of impatience might naturally have flowed on the part of the Member.
Nevertheless, I think the plaintiff stridently put forward the jurisdictional issue both orally and in written submissions that he handed to the Member, as is evident from the transcript of the hearing.
The plaintiff’s written submissions before the Member were 28 pages in length. There are a number of attachments, including the following:
The title page of the statement of claim received in the Parramatta District Court on 23 August 2023. The Type of Claim is described in this way:
“Mercantile Law – Breach of Contract (Residential Tenancies Agreement) – Damages Residential Tenancies Act – Breach of Act by Landlord. ACL – Misleading and Deceptive Conduct – Compensation and Damages under the Australian Consumer Law. Breach of Agreement, Failure to Provide a Safe Residence, Failure to Provide Essential Services, Breaches of the ‘Australian Competition and Consumer Commission’ (ACCC), Breaches of the ‘Residential Tenancies Act 2010’ Termination Notices, Unconscionable Conduct, Failure to adhere to section 63 of the Residential Tenancies Act 2010.”
The title page of the amended statement of claim filed in the Parramatta District Court on 1 March 2024. The Type of Claim is precisely the same as that set out in the previous subparagraph.
An excerpt from Sch 4 cl 5 including subcl (7), already quoted above.
A copy of the Notice of Order made by Tribunal Member, M Zraika, also quoted above, referring to the Tribunal not having jurisdiction to determine one of the defendant’s earlier applications.
A copy of the email correspondence with Mr Bloom in which there is a concession that earlier applications made by the defendant had been dismissed because of the jurisdiction issue.
As to the defendant’s point that the written submissions only included the title pages of the statement of claim and the amended statement of claim I think even these limited documents raise issues crossing into the subject of the defendant’s application in the Tribunal. The numerous references to the RTA and to the lease make it very clear that the legitimacy of the landlord’s rights were in issue. I also note, as properly and fairly pointed out by the defendant’s counsel, that, pursuant to s 38(2) of the Civil and Administrative Tribunal Act:
“The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.”
“77. 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).
78. 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.'
79. 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.
80. 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.”
I note that the plaintiff quoted extensively from Wright J’s judgment in the Tribunal.
I think it clear from even only the limited pages of the statement of claim and amended statement of claim which were annexed to the plaintiff’s written submissions before the Member that, adopting Wright J’s words, the District Court proceedings and the NCAT proceedings both involved “an issue relating to the termination of the residential tenancy agreement … ”.
The defendant submitted that, in effect, to adopt the approach taken by Wright J was to ignore the specific nature of the proceedings in NCAT. Unlike in Matautia Developments where the NCAT proceedings were based on s 87 of the RTA, the NCAT proceedings in the current case were only concerned with s 85.
Section 85, as it was at the relevant time, required no more than a landlord giving a termination notice to the tenant to terminate a lease not earlier than 90 days from the giving of the notice. If the notice was properly constructed and properly served, then the Tribunal was bound to make a termination order. The only issues that could arise therefore concerned compliance with the section.
In contrast, s 87, again as it was at the relevant time, was based on a breach of the residential tenancy agreement. Therefore, the scope of issues that could arise would be much broader and might include the matters set out in the Type of Claim portions of the District Court pleadings.
At first sight the defendant’s point is attractive. However, the description in the Type of Claim is not limited to breach of contract but also includes “Breaches of the Residential Tenancy Act 2010, Termination Notices … ”.
The District Court pleadings obviously could not encompass the specific termination notice given pursuant to s 85 because the pleadings preceded the giving of the notice. However, termination notices are specifically addressed in the amended statement of claim over five paragraphs commencing at para 124.
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.
In written submissions the defendant submitted that the amended statement of claim filed on 9 May 2025 was an effort to create the overlapping of issues. The submission states at [29]:
“Self-evidently, the amendments were a reaction to Termination Order.”
The difficulty with the submission is that the amended statement of claim (Exhibit B), filed before the NCAT proceedings were commenced, is almost identical to the document filed in 2025, and squarely raises the validity of termination notices. The only difference between the two pleadings is that para 143 of the earlier pleading is omitted from the later pleading.
The plaintiff’s position is even stronger if one assumes that the earlier NCAT applications had also relied on s 85 of the RTA. However, I do not know if that is the case, but even without the assumption, the plaintiff has squarely raised in his pleadings the validity of termination notices.
It might be argued that the Termination Notice served on 11 December 2024 could not be the subject of, or an issue in, the earlier pleadings because it did not exist when the earlier pleadings were drafted. This argument, while containing a degree of logic, cannot be accepted because it could defeat the whole intent of Sch 4 cl 5(7) if a landlord could simply file a fresh termination notice after proceedings had been commenced in a court.
In this case, because of the five preceding applications, the amended statement of claim makes it very clear that termination notices served by the defendant are asserted to be invalid.
Another significant point is that the plaintiff’s allegations in the District Court concern the term of the lease. He asserts that he had a lease with a term of three years. Section 85 only applies to a periodic agreement. A periodic agreement is defined in the RTA as “a residential tenancy agreement that is not a fixed term agreement”. It is clear from the transcript before the Member that the defendant was asserting a periodic agreement.
A common issue between the NCAT proceedings and the District Court proceedings is whether there was a fixed term agreement or a periodic agreement.
In my view the identification of a common issue needs to be broadly interpreted. Although factually different, I think the decision of White J in Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 from para 104 supports this approach.
Another distinction raised by the defendant with Matautia Developments was that the plaintiff’s claim was for damages only and “there is no claim of estoppel”. The District Court proceedings do seek damages and do not ask for any order arising from an estoppel, but the pleading does contain an entire section devoted to estoppel, commencing at para 67 then stating at paras 72 and 73 that the defendant is “Estopped” and ending at para 77, as follows:
“This particular type of ‘Estoppel’ that the Plaintiff is pleading is known as ‘Estoppel’ by Convention/Common Law Estoppel*’*, in which the Local Court of NSW has jurisdiction to hear and determine: (Australian Beverage Distributors v Kellert [2008] NSWSC 1126).”
“The Defendants Agents for the landlord being the Defendant are ‘Estopped’ from denying the Plaintiff the agreement of a 3-year lease term.”
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.
Further, the NCAT proceedings are an aspect of the dispute between the plaintiff and the defendant which falls within the whole of the relationship between the parties which is clearly an issue in the District Court proceedings.
In my view therefore, the bar for continuing jurisdiction raised by Sch 4 cl 5(7) is applicable in the present case.
Having found that the Tribunal was aware of the jurisdictional point and that there are issues common to both the NCAT proceedings and the District Court proceedings, it follows that the NCAT jurisdiction should have ceased when the Tribunal became so aware. This was on 16 April 2025 when the plaintiff brought the District Court proceedings to the attention of the Tribunal.
I make the following orders:
The orders made in the NSW Civil and Administrative Tribunal (NCAT) on 16 April 2025 No 2025/00114619 are set aside.
The defendant is to pay the plaintiff’s costs of the proceedings, noting that the plaintiff is self-represented.
**********
Di Liristi
Yosef [2025] NSWSC 642