Brylewski v Maclean

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.