Brylewski v Maclean - [2022] NSWSC 1654

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Brylewski v Maclean [2022] NSWSC 1654
Hearing dates: 28 November 2022
Date of orders: 6 December 2022
Decision date: 06 December 2022
Jurisdiction: Common Law
Before: Basten AJ
Decision:
(1)   Dismiss the notice of motion filed 6 June 2022, amended 20 November 2022, on behalf of the first defendant.
(2)   Subject to order (3) below, order that the first defendant and, to the extent that he is in occupation, the second defendant, deliver to the plaintiffs vacant possession of the property described in title folio 1/SP812, situated at 1/1 Rome Street, Canterbury NSW, 2193, within seven days of the date of compliance by the plaintiffs with order (3).
(3)   The plaintiffs shall file and serve on the first defendant an undertaking to the Court in writing that on obtaining possession:
(i)   if the property is let, the period of the lease will be no longer than six months; and
(ii)   if the property is sold, the net proceeds of sale will be held on trust by the plaintiffs’ solicitors, Marsdens Law Group, until further order of a judge of the Court,
(4)   The plaintiffs have leave to issue a writ for possession 28 days after providing the written undertaking referred to in order (2), or 28 days after the entry of these orders, whichever is later.
(5)   Grant leave to the plaintiffs and the first defendant, on three days’ notice to the other, to seek a variation of these orders, if not by consent, by order of the Court within 14 days of the entry of the orders.
(6)   Direct that these orders be entered on Friday, 16 December 2022.

Catchwords:
LAND LAW – application by registered proprietors for order for possession of residential unit – unit owned by uncle of first plaintiff – plaintiffs became registered proprietors of 50% share pursuant to a transfer under a deed, subject to uncle’s right of occupation – other 50% share left to plaintiffs in will – uncle later married first defendant – uncle died in April 2022 –– first defendant continued to occupy property – plaintiffs’ entitlement to possession as registered proprietors – defendant challenged transfer of registered title under deed – defendant made claims to estate in other proceedings
CIVIL PROCEDURE – proceedings in possession list – first defendant sought leave to represent estate of deceased part owner – defendant proposed cross-claim in defence of possession proceedings – NSW Trustee and Guardian acting for unadministered estate had filed submitting appearance – whether appearance should be set aside – first defendant failed to seek limited grant of letters of administration in probate proceedings – proposed cross-claim duplicative of proceedings in probate list – whether that would constitute abuse of process – no seriously arguable basis to challenge validity of deed – whether possession proceedings should be transferred to probate list

Legislation Cited:
Probate and Administration Act 1898 (NSW), s 61
Succession Act 2006 (NSW), s 12; Ch 3, Pt 3.2

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 [2022] NSWSC 1654
Case: [2022] NSWSC 1654
Decision Date: 06 December 2022

CaseChat Overview and Summary

The plaintiffs, who are the registered proprietors of a 50% share of a residential unit, have applied for an order for possession of the unit against the first defendant. The unit was originally owned by the uncle of the first plaintiff, who transferred a 50% share to the plaintiffs under a deed, subject to his right of occupation. The uncle later married the first defendant, and upon his death in April 2022, the first defendant continued to occupy the property. The plaintiffs seek possession as registered proprietors, while the first defendant challenges the transfer of registered title under the deed and has made claims to the estate in other proceedings. The first defendant sought leave to represent the estate of the deceased part owner and proposed a cross-claim in defence of the possession proceedings. The NSW Trustee and Guardian, acting for the unadministered estate, had filed a submitting appearance, which the first defendant sought to have set aside. The first defendant had not sought a limited grant of letters of administration in the probate proceedings, and the proposed cross-claim was duplicative of proceedings in the probate list.

The legal issues before the court were whether the appearance of the NSW Trustee and Guardian should be set aside, whether the proposed cross-claim in the possession proceedings constituted an abuse of process, and whether the possession proceedings should be transferred to the probate list. The court found that there was no seriously arguable basis to challenge the validity of the deed, and that the first defendant's failure to seek a limited grant of letters of administration in the probate proceedings meant that the proposed cross-claim would be duplicative of proceedings in the probate list. The court held that the possession proceedings should not be transferred to the probate list, as the primary issue was the entitlement to possession of the residential unit, which was a matter for the possession list. The court also found that the proposed cross-claim in the possession proceedings would constitute an abuse of process, as it was duplicative of proceedings in the probate list and there was no seriously arguable basis to challenge the validity of the deed.

The court ordered that the appearance of the NSW Trustee and Guardian should not be set aside, and that the first defendant's proposed cross-claim in the possession proceedings would constitute an abuse of process. The court held that the possession proceedings should not be transferred to the probate list, as the primary issue was the entitlement to possession of the residential unit, which was a matter for the possession list. The court further found that there was no seriously arguable basis to challenge the validity of the deed, and that the first defendant's failure to seek a limited grant of letters of administration in the probate proceedings meant that the proposed cross-claim would be duplicative of proceedings in the probate list. The court did not make any orders regarding the possession of the residential unit, as that was a matter for the plaintiffs and the first defendant to resolve in the possession proceedings.

Orders