Di Liristi v Shahata

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.

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:

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

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.

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.

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.

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.

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.

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.

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.

Rather the Court has determined this as a matter of substance. But first there is another procedural question. The matter came before me urgently in the Duty List this afternoon on reference from Brereton J, who was the Duty Judge last week. On the first occasion the plaintiff approached the Court, Brereton J made orders, as sought by the Summons, that the operation of the caveat (number AU567074) would be extended under the Real Property Act s 74J, but the defendant had liberty to apply, including to revoke that order on two days’ notice. The matter was then adjourned for determination on 4 November 2025. The defendant took advantage of the liberty to apply and gave notice on Tuesday 28 October 2025 to list the matter today. The defendant has complied with the two days’ notice requirement in the matter is now properly brought before the Court.

The plaintiff says that he has been in hospital in recent days. But he was served with the relevant materials, including the evidence relied upon by the defendant, yesterday morning by 10.00am. The plaintiff submits that he has been disadvantaged by his hospitalisation, and the matter should not be brought on today. As the Court commented to the plaintiff during the hearing, he conducted the hearing with considerable aplomb and competence. In the Court’s view the plaintiff has not been obviously impaired by any recent hospital stay from proceeding in his case and putting it to its best advantage. Without admissible medical evidence the Court is unable to conclude that the plaintiff has been disadvantaged by his recent hospital stay. The Court has decided it will proceed today.

The plaintiff argues that the caveat should be extended. But the arguments he advances are currently unsupported by the claim made for final relief in the Summons. The Summons is defective in form. The Summons claims by way of final relief merely that the caveat should not lapse. That is not final relief. It is only a procedural claim for interlocutory relief and is therefore inherently defective. But that can be overlooked for now. The Court will deal with the matter of the substance of the caveat and then deal with the procedural consequences later.

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.

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.

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.

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:

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.

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.

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.

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.

Accordingly, the Court makes the following orders and directions: