Brylewski v Maclean - [2022] NSWSC 1193

Supreme Court

New South Wales

Medium Neutral Citation: Brylewski v Maclean [2022] NSWSC 1193
Hearing dates: 26 August 2022
Date of orders: 26 August 2022
Decision date: 08 September 2022
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Set down for hearing before a judge of the Court on 28 November 2022 with an estimate of one day.
2. Notice of Motion filed by the first defendant on 6 June 2022 is fixed for hearing on 28 November 2022 if the trial judge considers it appropriate to hear it.

Catchwords:
CIVIL PROCEDURE – Possession List – deed entered into by plaintiffs and third defendant transferring half interest to plaintiffs – no challenge to validity of deed until proceedings commenced 8 years later – first defendant wife of third defendant and occupier of property – where no orders sought against third defendant - third defendant died after proceedings commenced – first defendant sought to be appointed to represent deceased’s estate – rr 7.8., 7.9, 7.10 Uniform Civil Procedure Rules – where third defendant was subject to guardianship and financial management orders in favour of Public Guardian and NSW Trustee and Guardian – where Court had been informed there was to be contested application for letters of administration – inappropriate to appoint first defendant as representative of the estate until probate proceedings resolved - where challenge to deed unrelated to possession proceedings – further delay of possession proceedings not consistent with s 56 Civil Procedure Act

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 56
Succession Act 2006 (NSW) s 12
Uniform Civil Procedure Rules 2005 (NSW) rr 7.8, 7.9, 7.10

Cases Cited:
Government Insurance Office v Johnson [1981] 2 NSWLR 617
Hanshaw v National Australia Bank Ltd [2012] NSWCA 100; (2012) 264 FLR 294
Stedman v O’Hearn [2006] NSWSC 1122;

Texts Cited:
Nil

Category: Procedural rulings
Parties: Maria Brylewski (First Plaintiff)
Tadeusz Brylewski (Second Plaintiff)
Jacqueline Maclean (First Defendant)
David Raynor (Second Defendant)
Emil Radecki (Third Defendant)
Representation:
Counsel:
M Bennett (Plaintiffs)
C Adamson (First Defendant)
No appearance (Second Defendant)
No appearance (Third Defendant)
Solicitors:
Marsdens Law Group (Plaintiffs)
C Adamson (First Defendant)
Unrepresented (Second Defendant)
L Williams (Third Defendant)

File Number(s): 2021/221464
Publication restriction: Nil

Judgment

At a directions hearing on 26 August 2022 I refused the first defendant’s application to fix a notice of motion dated 6 June 2022 for hearing prior to the hearing of the substantive proceedings. I set the proceedings down for hearing before a judge of the Court on 28 November 2022 and I stood the notice of motion of 6 June 2022 over to that day for hearing if the trial judge considered it appropriate to hear it.
On 31 August 2022 my Associate received a copy of a summons seeking leave to appeal to the Court of Appeal from those orders, accompanied by a request for me to provide reasons for the making of those orders. Ordinarily, I would not provide reasons for refusing to fix for hearing a notice 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 [2022] NSWSC 1193
Case: [2022] NSWSC 1193
Decision Date: 08 September 2022

CaseChat Overview and Summary

The parties involved in the case of Brylewski v Maclean were the plaintiffs, who had entered into a deed with the third defendant, transferring half of their interest in a property. The first defendant, who was the wife of the third defendant and the occupier of the property, sought to be appointed as the representative of the deceased third defendant’s estate. The dispute was heard in the Supreme Court of New South Wales. The plaintiffs did not challenge the validity of the deed until the proceedings were commenced eight years later. The first defendant sought to be appointed to represent the deceased third defendant's estate, but the third defendant had been subject to guardianship and financial management orders in favour of the Public Guardian and the NSW Trustee and Guardian.

The legal issues the court was required to decide were whether the first defendant should be appointed as the representative of the deceased third defendant’s estate and whether it was appropriate to appoint the first defendant until the probate proceedings were resolved. The court had to consider the rules 7.8, 7.9, and 7.10 of the Uniform Civil Procedure Rules and section 56 of the Civil Procedure Act. The court had to decide whether it was appropriate to appoint the first defendant as the representative of the estate, given that the challenge to the deed was unrelated to the possession proceedings and that further delay of the possession proceedings was not consistent with section 56 of the Civil Procedure Act.

The court held that it was not appropriate to appoint the first defendant as the representative of the estate until the probate proceedings were resolved. The court found that the challenge to the deed was unrelated to the possession proceedings and that further delay of the possession proceedings was not consistent with section 56 of the Civil Procedure Act. The court held that the first defendant should not be appointed as the representative of the estate until the probate proceedings were resolved. The court further held that the third defendant was subject to guardianship and financial management orders in favour of the Public Guardian and the NSW Trustee and Guardian, and that the Court had been informed there was to be a contested application for letters of administration. Therefore, it was inappropriate to appoint the first defendant as the representative of the estate until the probate proceedings were resolved.

Orders