Brylewski v Maclean

[2023] NSWSC 876

Supreme Court

New South Wales

Medium Neutral Citation:

Brylewski v Maclean [2023] NSWSC 876

Hearing dates:

25 July 2023

Date of orders:

25 July 2023

Decision date:

25 July 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

1) The amended notice of motion is dismissed;

2) The applicant to pay the respondent’s costs of today’s proceedings.

Catchwords:

CIVIL PROCEDURE – Application for interim stay of writ of possession – Where claims to property made by defendants in separate probate proceedings – Where defendants’ rights to property previously tested in exhaustive litigation – Where Registrar applied slip rule to correct error on the face of prior Court orders

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited:

Brylewski v Maclean [2022] NSWSC 1654

Maclean v Brylewski [2023] NSWCA 128

Category:

Procedural rulings

Parties:

Maria Brylewski (First Plaintiff/First Respondent)
Tadeusz Brylewski (Second Plaintiff/Second Respondent)
Jacqueline Maclean (First Defendant/First Applicant)
David Raynor (Second Defendant/Second Applicant)
Emil Radecki (Third Defendant/Third Applicant)

Representation:

Counsel:
M Bennett (Plaintiffs/Respondents)
C Adamson (Sol) (Defendants/Applicants)

Solicitors:
Marsdens Law Group (Plaintiffs/Respondents)
Lo Cost Law (Defendants/Applicants)

File Number(s):

2021/221464

EX TEMPORE REVISED JUDGMENT

1. HIS HONOUR: The first defendant moved on an amended notice of motion that was filed by her solicitor in court this morning before me sitting as the Duty Judge, for an order to the following effect:

“An urgent interim order staying the enforcement of an order of Senior Deputy Registrar Chitty, on 15 June 2023 for the issuance of a writ for possession of 1/1 Rome Street, Canterbury NSW 2193 and to levy on the property of Jacqueline Maclean to the amount of $1046.00 for the costs of the execution of the writ, pending the hearing of the further orders sought in this notice of motion.”

2. In an affidavit in support that was read on the hearing of the motion, the first defendant’s solicitor, Mr Adamson, noted that the Registrar had advised the first defendant in a letter dated 19 June 2023 of the issuance of the Writ of Possession. He stated that the first defendant received the letter the following day, that is 20 June 2023, and forwarded it to him, apparently electronically, on 21 June 2023. He said that he only became aware of the letter or its contents on 19 July 2023, the delay being due, at least in part, to him suffering what he described as “some serious health problems”.

3. By way of relevant background, briefly stated, an issue arose between the first defendant and the plaintiffs concerning the estate of the first defendant’s husband, in particular, a home unit in which the first defendant was residing with the deceased at the time of his death. The plaintiffs were the registered proprietors of a half interest of that property as tenants in common with the deceased.

4. On 6 December 2022, Basten AJ ordered the first defendant, the applicant on this notice of motion, together with the second defendant, to relinquish vacant possession of the property in question within seven days of the date of compliance by the plaintiffs of an order requiring them to file and serve on the first defendant an undertaking to the Court in writing that on obtaining possession, if the property was let, the period of the lease would be no more than six months, and if the property was sold, the net proceeds of sale would be held on trust by the solicitors for plaintiffs. By a further order, Basten AJ granted leave to the plaintiffs to issue a Writ of Possession 28 days after providing the aforementioned written undertaking or 28 days after entry of his Honour’s orders, whichever date was later: see Brylewski v Maclean [2022] NSWSC 1654.

5. The first defendant appealed Basten AJ’s judgment to the Court of Appeal, which dismissed the appeal on 19 May 2023: see Maclean v Brylewski [2023] NSWCA 128 at [2].

6. Following the dismissal of the appeal, in June 2023, the plaintiffs sought a Writ of Possession from the Registrar. It became apparent to the Registrar that one of the orders made by Basten AJ that referred back to a preceding order specified the incorrect number of the order; instead of “order 3”, it was incorrectly referred to as “order 2”. The Registrar corrected the error under the power afforded by r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), commonly known as the Slip Rule.

7. In essence, the nature of the reasons for the first defendant’s application are threefold.

8. Firstly, the Court is informed that by way of a notice of motion that was filed on 16 June 2023, the first and second defendants have commenced proceedings seeking certain orders that, if successful, would affect the plaintiff’s entitlement to the property and, in the alternative, a stay of the orders of Basten AJ that allowed the Writ of Possession. I note that although the notice of motion was filed, there is no evidence that it has been served upon the plaintiffs, who deny that it has been. The plaintiffs inform the Court that in a recent appearance of the parties, counsel for the first defendant showed a copy of the notice of motion to counsel for the plaintiffs, but retained the copy and none has been served.

9. In my view, the first ground advanced by the first defendant as to why the execution of the writ for possession should be stayed is not made out. There have been exhaustive proceedings in which the first defendant was a party, testing what rights she may have to possession of the property, and recent steps to enliven that issue have not been diligently prosecuted on the first defendant’s behalf.

10. A second basis advanced by the first defendant is that the Registrar was not entitled to perfect the orders made by Basten AJ. I am satisfied that the correction made by the Registrar was appropriately made. There can be no doubt as to what was intended by Basten AJ, and the correction was an obvious one to be made. The first defendant did not advance the error on the appeal to the Court of Appeal, which I am told relied on 68 separate grounds.

11. The third basis is that the execution of the writ would occasion hardship to the first defendant, since she has no alternative place of residence and therefore it should be stayed until the current proceedings are completed. The only evidence of hardship before the Court was the following passage from Mr Adamson's affidavit:

“My instructions are that if the warrant for possession is enforced at this time, the first defendant, will be homeless.

The first defendant normally worked as a chef, has recently had a serious operation and has mental health problem which make her unable to work and is dependent on Centrelink payments.

The first defendant has no savings which would permit her to rent accommodation anywhere or to service any loan.

The first defendant has no family or friends in the area which she could reside with.

The first defendant is the joint owner of a house in Katoomba but cannot reside there because the second defendant has exclusive possession and also because the second defendant has been diagnosed with schizophrenia and is delusionary and has become threatening and aggressive towards the first defendant because he believes that the first defendant wants to poison him.”

12. There was no evidence adduced by the first defendant as to the claims made in this part of Mr Adamson’s affidavit or elaboration of the nature of the first defendant’s operation or post-operation condition.

13. I note that, in any event, the first defendant concedes that she has an interest as a joint tenant in an alternative property, the co-owner being her partner, who was also the second defendant in the proceedings before Basten AJ, as I have noted.

14. I am not satisfied that the first defendant would be disadvantaged by the execution of the Writ of Possession. She has been on notice that the writ would be sought and executed since December 2022, subject to an appeal that was dismissed in May 2023. She was informed by letter of the issuance of the writ on 19 June 2023. She has an interest in an alternative place of residence.

15. Accordingly, the amended notice of motion is dismissed.

16. I make an order for costs in favour of the plaintiffs, the respondents to the amended notice of motion, for today’s proceedings.

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Decision last updated: 27 July 2023