Di Liristi v Yosef (No 2)

1. [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. [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. [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. [4]

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

5. [5]

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

Principles

1. [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]:

2. [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]:

3. [8]

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

4. [9]

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

The defendant’s notice of motion

1. [10]

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

The error in the reasons

1. [11]

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

2. [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.

3. [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:

4. [14]

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

5. [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.

6. [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).

7. [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.

8. [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:

9. [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.

10. [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.

11. [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.

12. [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.

13. [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.

14. [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

1. [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.

2. [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.

3. [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.

4. [28]

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

5. [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.

6. [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.

7. [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.

8. [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.

9. [33]

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

10. [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.

11. [35]

    The above chronology has a number of ‘oddities’:

    1. (1)

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

    2. (2)

       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?

    3. (3)

       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.

    4. (4)

       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?

    5. (5)

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

12. [36]

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

13. [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.

14. [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:

15. [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.

16. [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:

17. [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:

18. [42]

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

19. [43]

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

20. [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.

21. [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

1. [46]

   I make the following orders and notation:

   1. (1)

      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.

   2. (2)

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

   3. (3)

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

   4. (4)

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