Di Liristi v Yosef - [2025] NSWSC 642

Supreme Court

New South Wales

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
Decision under appeal

Court or tribunal:

NSW Civil and Administrative Tribunal (NCAT)

Jurisdiction:

Consumer and Commercial Division

Date of Decision:

16 April 2025

Before:

Tribunal Member Stephen Smith

File Number(s):

2025/00114619

JUDGMENT

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…

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 642
Decision Date: 20 June 2025

CaseChat Overview and Summary

In the matter of Di Liristi versus Yosef, the dispute centred on the jurisdictional competence of the New South Wales Civil and Administrative Tribunal (NCAT) to adjudicate a tenancy matter while concurrent proceedings were underway in the District Court. The NCAT was asked to enforce a section 85 termination notice issued by the landlord, Di Liristi, against the tenant, Yosef, while the District Court dealt with a broader set of issues related to the landlord-tenant relationship. The legal issue before the court was whether NCAT had the jurisdiction to hear the matter under the Civil and Administrative Tribunal Act 2013 (NSW), specifically in light of the existing District Court proceedings that involved overlapping issues. The court had to determine whether the NCAT's jurisdiction was ousted by the fact that the District Court was already handling matters pertaining to the landlord-tenant relationship.

The court considered the relevant statutory provisions, particularly clause 5(7) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW), which outlines the circumstances under which the NCAT may be deprived of its jurisdiction. The court examined the nature of the issues being addressed in both the NCAT and District Court proceedings. It found that while the District Court was handling broader disputes between the landlord and tenant, the NCAT's proceedings were specifically focused on enforcing the section 85 termination notice. The court concluded that the issues in the NCAT proceedings were distinct and did not overlap significantly with those being considered in the District Court, thereby preserving NCAT's jurisdiction to hear the matter. The court's reasoning hinged on the principle that jurisdictional errors occur when there is a clear overlap of issues between the two courts, which was not the case here.

The court held that the NCAT had the requisite jurisdiction to hear the matter. The court found that there was no substantial overlap between the issues being determined by the NCAT and those being addressed in the District Court. Consequently, the NCAT was not precluded from exercising its jurisdiction to enforce the section 85 termination notice. The court's decision upheld the NCAT's authority to proceed with the matter, allowing the landlord's application for enforcement to be considered on its merits. The orders of the court confirmed that the NCAT was not deprived of its jurisdiction and could continue to hear the matter related to the enforcement of the termination notice.

Orders