Lirantzis v Calligas

[2025] NSWCATCD 73

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lirantzis v Calligas [2025] NSWCATCD 73

Hearing dates:

On the papers

Date of orders:

18 August 2025

Decision date:

18 August 2025

Jurisdiction:

Consumer and Commercial Division

Before:

D Robertson, Principal Member

Decision:

(1) A hearing of the applicants’ reinstatement application filed on 11 August 2025 is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2)     An extension of time to file the applicants’ reinstatement application is refused.

(3)     The applicants’ reinstatement application filed on 11 August 2025 is dismissed.

Catchwords:

CIVIL PROCEDURE — Civil and Administrative Tribunal — Application for reinstatement — Civil and Administrative Tribunal Act 2013 (NSW) s 55 — proceedings dismissed for non-appearance — previous application for reinstatement refused — second reinstatement application filed — extension of time to file reinstatement application — abuse of process — no new material to justify fresh consideration of second application — no basis for extension of time for filing of application

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW) s 55

Civil and Administrative Tribunal Regulation 2022 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

Bobolas v Waverley Council [2016] NSWCA 139

GMT Construction Pty Ltd v Keshavarz [2024] NSWCATAP 68

Harmony Stone Gallery Pty Ltd v Ajuria [2017] NSWCATAP 80

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501

MPP Property Pty Ltd v Soliman Hospitality Pty Ltd [2021] NSWCATAP 90

Sesay v Duran [2023] NSWCATAP 124

Wallace v Price [2017] NSWCATAP 151

Ward v Nand [2021] NSWCATAP 14

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Angela Lirantzis (First Applicant)
Maria Lirantzis (Second Applicant)
Peter Lirantzis (Third Applicant)
Petty Lirantzis (Fourth Applicant)
Christina Calligas (First Respondent)
Anastasios Calligas (Second Respondent)

Representation:

Applicants (self-represented)
Minas & Associates (Respondents)

File Number(s):

2024/00327812

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. The matter before me requiring determination is an Application for Reinstatement filed by the applicants in these proceedings on 11 August 2025. This is the second reinstatement application filed by the applicants. I will refer to the application filed on 11 August 2025 as the Second Reinstatement Application.

2. The power of the Tribunal to reinstate proceedings arises from s 55(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Section 55 provides:

55   Dismissal of proceedings

(1)  The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

(a)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b)  if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d)  if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2)  The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.

Background

3. The applicants commenced these proceedings in the Consumer and Commercial Division of the Tribunal on 4 September 2024, seeking the sum of $46,372.22 in respect of the respondents’ alleged liability for “outstanding rent, water charges, balustrade cost and fire safety” said to have arisen pursuant to a retail lease between the applicants as landlords and the respondents as tenant and guarantor.

4. On 19 May 2025, the parties were sent a notice of hearing in person for 23 June 2025.

5. On 17 June 2024, the applicants wrote to the Tribunal requesting that the decision be made on the papers and not at a formal hearing.

6. On 20 June 2025, in response to a communication from the Tribunal, the applicants stated in an email to the Tribunal, “an immediate family member and a party to the case suffered a cardiac arrest and is currently in hospital.” The applicants stated that they were unable to attend the hearing on 23 June 2025. The applicants indicated that they relied upon on seven folders of evidence submitted to the Tribunal.

7. On 23 June 2025, Senior Member Bluth dismissed the application because the applicants failed to appear. The Tribunal recorded that the applicants had been advised on that day that attendance for the hearing was mandatory and noted that the applicants had had sufficient notice to attend the hearing.

8. The Tribunal noted “in passing” that s 71(2) of the Retail Leases Act 1994 (NSW) states that proceedings must be commenced within 3 years of a liability arising and that the amounts claimed by the applicants were beyond 3 years.

9. On 26 June 2025, the applicants filed an application to reinstate the proceedings (the First Reinstatement Application). The parties were given the opportunity to file evidence and submissions concerning the First Reinstatement Application. On 5 August 2025, Senior Member Hennings refused the First Reinstatement Application. The reasons for that decision were relevantly as follows:

“1). The applicants seek that the matter be reinstated because they failed to attend the Tribunal on 23 June 2025 for the final hearing. They say that they could not attend due to a cardiac arrest suffered by an immediate family member and party to the proceedings who was in hospital. They sought a decision on the papers which was rejected by the Tribunal Member, who dismissed the application when none of the four applicants attended as required.

2). The applicants’ application and submission largely fails to focus on the core elements to a reinstatement application. The applicants had been sending correspondence to the Tribunal in the lead up to the hearing attempting to be excused and to have the matter determined on the papers. The Tribunal rejected all those attempts and clearly the applicants were on notice that they were required to attend. Much of the applicants’ submission focuses on the Member and/or the respondent’s legal representative which are largely irrelevant. The Tribunal considers that the applicants have largely failed to focus on the requirements and issues for consideration in a reinstatement application.

…

4). The respondent submits that the applicants have provided no supporting evidence whatsoever to substantiate the claims of the medical emergency or any contemporaneous or subsequent documentation to support their explanation for non-attendance. The respondent also identifies in the lead up to the hearing the applicants wrote to the Tribunal on a number of occasions requesting to be excused and for the matter to be determined on the papers. The respondent submitted that this was not possible because the applicants had not submitted proper evidence, and they were required by the respondent at the hearing for the purpose of cross-examination. The Tribunal rejected all applications prior to the hearing and made it clear that the applicants were required to attend for such reasons - which they failed to do.

5). The respondent also submitted that even if one of the applicants were unavailable, the alleged cardiac arrest occurred six days before the hearing, and it could not explain or justify the failure of any of the remaining three appearing at the hearing.

6). The Tribunal accepts the respondent’s submission in finding that the applicants’ explanation for non-attendance is unsupported and also inherently insufficient. The Tribunal finds that there is no reasonable explanation for their non-attendance and consequently the power to reinstate is not enlivened. The reinstatement application is dismissed.”

10. On 11 August 2025, the applicants lodged the Second Reinstatement Application.

11. I note that on 16 July 2025 the applicants filed an appeal against the decision to dismiss the proceedings.

Applicants’ submissions

12. As far as I can tell, the Second Reinstatement Application differs from the First Reinstatement Application only in the following respects:

1. The addition of five sentences as set out below to the second paragraph of the submissions in support; and

2. The inclusion of two additional documents in the attachments to the submissions.

13. The additional sentences added to the submissions are:

“Peter Lirantzis’s condition was deteriorating whilst he was in hospital. He also developed other life threatening conditions whilst he was in hospital eg pneumonia. He also had to be operated on. All the immediate family was on standby whilst Peter Lirantzis was in hospital and we were called multiple times throughout his hospital stay to come immediately to the hospital due to his deteriorating condition. A cardiac arrest is an extremely serious health event.”

14. The two additional documents included in the Second Reinstatement Application are:

1. A “Nursing Discharge Checklist” recording the discharge of the Third Applicant from hospital on 18 July 2025. The document records the date of admission as 2 June 2025; and

2. An invoice for ambulance services rendered to the Third Applicant involving transport to hospital on 2 June 2025.

15. The applicants have sought that the Second Reinstatement Application be dealt with on the papers, that is without a hearing. I am satisfied that the questions for determination can be adequately determined on the basis of the written submissions and without a hearing. Accordingly, I will dispense with a hearing of the Second Reinstatement Application pursuant to s 50 of the NCAT Act.

16. As I have determined, for the reasons which follow, that the Second Reinstatement Application should be dismissed, I do not consider it necessary to seek submissions from the respondents.

Consideration

17. There are two preliminary issues raised by the Second Reinstatement Application which must be resolved in the applicants’ favour before the merits of the application can be considered:

1. The application has not been filed within the time prescribed in the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules); and

2. The application is the second application seeking the same relief and as such is potentially an abuse of process.

18. I will deal with these issues in turn.

Should the time for filing of the Second Reinstatement Application be extended?

19. Rule 36 of the NCAT Rules 2014 provides:

36 Applications to reinstate dismissed proceedings for failure to appear

Unless the Tribunal grants an extension under section 41 of the Act, an application made to the Tribunal to reinstate proceedings that were dismissed under section 55(1)(c) of the Act must be made within 7 days after the Tribunal dismissed the proceedings that are sought to be reinstated.

20. Seven days after the decision of the Tribunal dismissing the application was 30 June 2025. The Second Reinstatement Application was filed on 11 August 2025. That is six weeks out of time.

21. Section 41 of the NCAT Act empowers the Tribunal to extend the time for filing the application. The Tribunal may do so of its own motion regardless that the applicants have not themselves explicitly sought an extension of the time for filing the Second Reinstatement Application.

22. The principles applicable in the consideration of an application to extend time were set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21]-[22]. To grant an extension of time, I must be satisfied that strict compliance with the rules will work an injustice on the applicants. Relevant factors are:

1. the length of the delay,

2. the reason(s) for the delay,

3. the applicant’s prospects of success, i.e. whether there is a fairly arguable case, and

4. the extent of any prejudice suffered by the respondents.

23. The applicants have not made any submissions directed to the late filing of the Second Reinstatement Application. Their submissions concern the dismissal of the original application in the first instance and why the application should be reinstated.

24. The delay in lodging the Second Reinstatement Application, being six weeks, is not insignificant. It is clear that the reason for delay is that the applicants are seeking a second consideration of their application. Other than in exceptional circumstances, I would not consider that to be a legitimate reason to justify an extension of time: see Sesay v Duran [2023] NSWCATAP 124 at [23].

25. Were there substantial merit in the applicants’ case for reinstatement and good reason for the filing of a second reinstatement application, I may have considered it appropriate to grant an extension of time for the filing of the Second Reinstatement Application. However, as, for the reasons outlined below, I do not consider that either is the case, I decline to extend time for the filing of the second application.

Is the Second Reinstatement Application an abuse of process?

26. While there is no prohibition on multiple reinstatement applications (see Ward v Nand [2021] NSWCATAP 14 at [18]), the filing of a second or subsequent application may nevertheless constitute an abuse of process. In JKB Holdings Pty Ltd v de la Vega [2013] NSWSC 501 at [60]-[73], Lindsay J considered the principles applicable to the bringing of a second interlocutory application seeking the same relief:

“60 The plaintiffs contend that principles of res judicata or issue estoppel stand in the way of the defendants’ present motion. I think not. His Honour’s decision was considered, but interlocutory in character. The fact that it followed closely upon, or was associated with, other orders of a final character does not render it final. The decision not to order that the disputed funds be paid out to the defendants was not consequential upon, and merely working out, a principal order from which it could take on the colour of a final judgment … Each order must be assessed in terms of its legal effect. Principles governing res judicata and issue estoppel are predicated upon the existence of a final judgment or order …

61 That said, principles governing abuses of the process of the Court may be called in aid of opposition to repetitive interlocutory applications …

62 There is no absolute bar on the renewal of an interlocutory application absent a change in circumstances ...

…

64 … I do not overlook the practical reality that a change in circumstances bearing upon the justice or otherwise of adherence to an interlocutory decision is generally looked for on renewal of an application for a different decision ... And care needs to be taken to guard against repetitive applications that might be characterised as ‘judge shopping’ - an endeavour to seek from one judge what another has refused, in order to circumvent limitations on the availability of appeals from interlocutory decisions ... [citations omitted].”

27. I accept that the judgment of Lindsay J in JKB Holdings Pty Ltd v de la Vega is authority for the proposition that a second interlocutory application seeking the same order after an initial application has been refused is not automatically an abuse of process, even in the absence of a change in circumstances. Nevertheless, a second application, which could be seen to be merely an attempt to get a better result from a Tribunal Member likely to be more sympathetic to the application, would constitute an abuse of process. As Lindsay J noted in JKB Holdings at [64], “care needs to be taken to guard against repetitive applications that might be characterised as ‘judge shopping’”.

28. In my view, the Second Reinstatement Application is an abuse of process. The additional material filed with the Second Reinstatement Application does not alter in any material way the case for reinstatement from that dismissed by Senior Member Hennings on 5 August 2025. The two additional documents included with the Second Reinstatement Application provide no evidence of the Third Applicant’s medical condition. More particularly, they provide no evidence to support the proposition that by reason of the Third Applicant’s admission to hospital three weeks before the hearing, none of the other three applicants was able to attend the hearing. The additional sentences included in the applicants’ submissions lack detail and are mere submission, and not evidence of the matters asserted. In the absence of a detailed statement of the circumstances relied upon and supporting evidence, the Tribunal can give the additional sentences no weight.

29. In this context, I refer to the judgment of the NSW Court of Appeal in Bobolas v Waverley Council [2016] NSWCA 139 at [221] which addressed the requirements for medical certificates justifying non-attendance at hearings. McColl JA, with whom Simpson JA and Sackville AJA agreed, stated:

“A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the ‘critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing’”.

30. That statement has been applied in relation to the Tribunal in decisions of the Appeal Panel: see, for example, GMT Construction Pty Ltd v Keshavarz [2024] NSWCATAP 68 at [133]; MPP Property Pty Ltd v Soliman Hospitality Pty Ltd [2021] NSWCATAP 90 at [41]-[42]; and Harmony Stone Gallery Pty Ltd v Ajuria [2017] NSWCATAP 80 at [37]-[40].

31. I accept that the additional material established that the Third Applicant was in fact in hospital on the hearing date on 23 June 2025 and had a reasonable explanation for failing to attend the hearing. However, I am not persuaded that the applicants have provided a reasonable explanation supported by evidence of why the other applicants could not attend the hearing.

Should the Tribunal reinstate the proceedings?

32. Although, because I have determined not to extend time for the filing of the Second Reinstatement Application, and because I have determined that the Second Reinstatement Application is an abuse of process, it is not necessary to consider the merits of the Second Reinstatement Application, I note the following:

1. Section 55(1)(c) of the NCAT Act empowers the Tribunal to dismiss proceedings if (relevantly to these proceedings) “each applicant … has failed to appear in the proceedings”. The power to reinstate proceedings that have been dismissed under s 55(1)(c) may be exercised only if there is a reasonable explanation for the applicants’ failure to appear in the proceedings.

2. Senior Member Hennings explained in his reasons for refusing the First Reinstatement Application why the applicants had failed to meet the requirement that they demonstrate a reasonable explanation for their failure to attend the hearing on 23 June 2025. The applicants failed to provide evidence to establish that the Third Applicant had suffered any medical issue, or the nature of any medical issue. They further failed to provide any evidence to justify the assertion that none of the other three applicants was able to attend the hearing.

3. The additional evidence provided with the Second Reinstatement Application may, as noted above, indicate that the Third Applicant was in hospital on 23 June 2025, but it does not provide any support for the propositions, relied upon by the applicants, that “all the immediate family was on standby” while he was in hospital or that they “were called multiple times … to come to the hospital” either at all or specifically on 23 June 2025.

4. For the foregoing reasons, I could not be satisfied that the applicants have provided a reasonable explanation for their failure to appear at the hearing on 23 June 2025.

1. As the Appeal Panel stated in Wallace v Price at [30]-[31], even if an adequate explanation is provided for the applicants’ failure to attend the hearing, the question remains “whether an order to reinstate the proceedings should be made as a matter of discretion” and:

“Factors relevant in exercising this discretion include:

(1)   The nature of the [application] and the issues raised;

(2)   The strength of the [application] and its likelihood of success;

(3)   Any injustice to the opposing party.”

6. Even if the Second Reinstatement Application were not an abuse of process, the fact that it is a second application following the dismissal of the First Reinstatement Application would be relevant in considering whether to exercise the discretion to reinstate the proceedings. I would also take into account the fact that the applicants have filed an appeal against the decision of 23 June 2025 to dismiss their application.

7. In this context it is relevant to note reg 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulations), which provides that :

“the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if …

(b) the decision was made in the absence of a party and the Tribunal is satisfied that the party’s absence has resulted in the party’s case not being adequately put to the Tribunal.”

8. Subsection 9(5) provides that a party may not make an application for an order under reg 9 to set aside or vary a decision of the Tribunal if:

“(a) an internal appeal or appeal to a court against the decision has been lodged or determined”.

9. Although the lodgment of an appeal against a decision dismissing proceedings is not a bar to the filing of an application pursuant to s 55(2) of the NCAT Act, the fact that it would be a bar to an application pursuant to reg 9 of the NCAT Regulations, suggests that the fact that an appeal had been lodged before the filing of the Second Reinstatement Application is a factor weighing against the exercise of the discretion to reinstate the proceedings.

10. Moreover, the fact that an appeal has been lodged makes it inappropriate that I should express any view concerning the merits of either the applicants’ substantive application or the decision of 23 June 2025 to dismiss the application by reason of the applicants’ failure to appear.

ORDERS

33. My orders are:

1. A hearing of the applicants’ reinstatement application filed on 11 August 2025 is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. An extension of time to file the reinstatement application is refused.

3. The applicants’ reinstatement application filed on 11 August 2025 is dismissed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 September 2025