Di Liristi v Yosef

1. [1]

   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.

2. [2]

   The orders made in NCAT were:

3. [3]

   The plaintiff wishes the orders to be set aside. The defendant opposes the plaintiff’s application.

4. [4]

   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.

5. [5]

   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:

6. [6]

   The chronology lists five dismissals of applications by the defendant made at NCAT. Unfortunately, these applications are not in evidence but there are some clues as to what they concerned. I do not think it was in dispute that they related to the defendant’s attempts to terminate the lease and regain possession. The clues include the following. There is a Notice of Order sent to the plaintiff by NCAT concerning an “Application to the Tribunal concerning xxxxx BRINGELLY NSW 2556 Australia” which states:

7. [7]

   There is no transcript of the oral reasons but there is confirmation that the application was dismissed for want of jurisdiction.

8. [8]

   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:

   1. (1)

      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.

   2. (2)

      NCAT did not have jurisdiction because of “Schedule 4 – Part 5(7) Special Practice and Procedure Civil and Administrative Tribunal Act 2013.”

9. [9]

   I think it worth quoting this question and answer from the email:

10. [10]

    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.

11. [11]

    Schedule 4 cl 5 of the Civil and Administrative Tribunal Act 2013 (NSW), referred to above, is fundamental to the case:

12. [12]

    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:

    1. (1)

       the Member was not made aware of the jurisdictional issue; and

    2. (2)

       there was no issue common to the NCAT application and the District Court proceedings.

13. [13]

    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 :

14. [14]

    The defendant pointed out that the NCAT application had been brought pursuant to s 85 of the RTA which, as at 11 December 2024, was in these terms:

15. [15]

    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.

16. [16]

    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.

Was NCAT made aware of the jurisdictional issue?

1. [17]

   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.

2. [18]

   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.

3. [19]

   The plaintiff’s written submissions before the Member were 28 pages in length. There are a number of attachments, including the following:

   1. (1)

      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:

   2. (2)

      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.

   3. (3)

      An excerpt from Sch 4 cl 5 including subcl (7), already quoted above.

   4. (4)

      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.

   5. (5)

      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.

4. [20]

   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:

5. [21]

   If the Member, after all the agitation from the plaintiff about jurisdiction, felt there was any missing information, one would have expected the Member to have informed himself of whatever was missing. This might have included the balance of the amended statement of claim that had been filed on 1 March 2024. Had he done so he would have noticed the attacks on the previous termination notices, the reliance on Sch 4 cl 5(7) and the assertion of a lack of jurisdiction.

Was there an overlapping of issues?

1. [22]

   Wright J explained the manner in which cl 5(7) of Sch 4 operates in Di Liristi v Matautia Developments Pty Ltd (No 2) [2020] NSWSC 862, from [77]-[80]:

2. [23]

   I note that the plaintiff quoted extensively from Wright J’s judgment in the Tribunal.

3. [24]

   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 … ”.

4. [25]

   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.

5. [26]

   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.

6. [27]

   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.

7. [28]

   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 … ”.

8. [29]

   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.

9. [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.

10. [31]

    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]:

11. [32]

    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.

12. [33]

    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.

13. [34]

    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.

14. [35]

    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.

15. [36]

    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.

16. [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.

17. [38]

    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.

18. [39]

    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:

19. [40]

    The assertions about estoppel include para 76 which states:

20. [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.

21. [42]

    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.

22. [43]

    In my view therefore, the bar for continuing jurisdiction raised by Sch 4 cl 5(7) is applicable in the present case.

Conclusion

1. [44]

   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.

2. [45]

   I make the following orders:

   1. (1)

      The orders made in the NSW Civil and Administrative Tribunal (NCAT) on 16 April 2025 No 2025/00114619 are set aside.

   2. (2)

      The defendant is to pay the plaintiff’s costs of the proceedings, noting that the plaintiff is self-represented.