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

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.”

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”.
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.
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…

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.

Continue reading Brylewski v Maclean

Details

AGLC: Brylewski v Maclean [2023] NSWSC 876
Case: [2023] NSWSC 876
Decision Date: 25 July 2023

CaseChat Overview and Summary

The parties involved in this matter are Brylewski and Maclean. The nature of the dispute centres on an application for an interim stay of a writ of possession, filed in the Federal Court of Australia. The court was called upon to determine whether the application should be granted, particularly in light of the defendants' claims to property that were made in separate probate proceedings. These claims had already been subjected to exhaustive litigation, and the defendants sought to use this as a basis for the stay.

The legal issues before the court were multifaceted. Firstly, the court had to consider whether the defendants' claims to the property were sufficiently meritorious to warrant a stay of the writ of possession. This involved examining the extensive history of the litigation concerning the property, including prior decisions that had already tested the defendants' rights to the property. Secondly, the court had to determine whether the slip rule could be applied to correct an error on the face of prior court orders, which would impact the interim stay application. The slip rule allows a court to correct obvious errors in its own records, even outside the usual time limits for appeals or applications for relief from a judgment.

The court concluded that the defendants' claims were not strong enough to warrant a stay of the writ of possession, given the exhaustive nature of the prior litigation. The court also found that the slip rule could be applied to correct the error in the prior orders, but this did not alter the outcome regarding the interim stay. The court ultimately decided that the application for an interim stay should be dismissed. The reasoning was based on the substantial prior litigation that had already addressed the defendants' claims, and the lack of new evidence or significant changes in circumstances that would warrant a stay.

No final orders have been made in this instance, as the court's decision was limited to the application for an interim stay. The court's ruling indicates that further proceedings may be necessary to fully resolve the dispute concerning the property.

Orders