Di Liristi v Yosef - [2025] NSWSC 1155

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Di Liristi v Yosef (No 2) [2025] NSWSC 1155
Hearing dates: 22 September 2025
Date of orders: 3 October 2025
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

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.
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.
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.
The background to my decision is set out in the above judgment.
On 3 July 2025, the defendant filed a notice of intention to appeal from the judgment.

Principles

UCPR rr 36.15 and 36.16 should only be used sparingly. In Evans v Smith (No…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1155
Decision Date: 03 October 2025

CaseChat Overview and Summary

In the matter of Di Liristi versus Yosef, the dispute pertains to an application to amend, vary, or set aside an order made by the NSW Civil and Administrative Tribunal. The application was brought before the Supreme Court of New South Wales under rules 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). The primary legal issues before the court involved whether the application to set aside the tribunal order should be granted due to an alleged error and the subsequent rejection of the Amended Statement of Claim by the registry.

The court deliberated on the merits of the application, considering whether the tribunal's order was indeed erroneous and if the rejection of the Amended Statement of Claim by the registry warranted setting aside the tribunal's decision. The court examined the procedural steps taken by the applicant, the grounds for the application, and the implications of the registry's decision on the filing of the Amended Statement of Claim. The court's analysis focused on whether these factors collectively constituted sufficient grounds to warrant the setting aside of the tribunal's order.

The court concluded that the application to set aside the tribunal's order was not substantiated on the grounds presented. The court determined that the alleged error did not reach the threshold required to justify setting aside the order, and the registry's rejection of the Amended Statement of Claim did not constitute a valid basis for the application. Consequently, the application was dismissed, and the tribunal's order remained in effect.

As a result of the court's decision, no amendments to the tribunal's order were made, and the proceedings continued as per the original tribunal determination. The court's ruling affirmed the tribunal's order and rejected the applicant's request for relief under rules 36.15 and 36.16 of the UCPR.

Orders