Brylewski v Maclean (No 2) - [2024] NSWSC 227

Supreme Court

New South Wales

Medium Neutral Citation: Brylewski v Maclean (No 2) [2024] NSWSC 227
Hearing dates: On the papers
Date of orders: 12 March 2024
Decision date: 12 March 2024
Jurisdiction: Common Law
Before: Basten AJ
Decision:
Order that the defendant pay the plaintiffs’ costs of the proceedings in the possession list in an amount of $67,500.

Catchwords:
BANKRUPTCY – civil proceedings – proceedings resolved without order as to costs – sequestration order against estate of unsuccessful party – whether costs order could be made in civil proceedings after sequestration order
COSTS – general rule that costs follow the event – whether subsequent events affect success – effect of delay in pursuing costs application – related issue raised in separate unresolved proceedings in Equity Division
COSTS – form of order – order sought for assessment on indemnity basis – Calderbank offers by plaintiff – whether defendant unreasonable in failing to accept offers – gross costs order – complexity of case

Legislation Cited:
Bankruptcy Act 1966 (Cth), ss 58(3), 82
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 36.16(3A), 42.1

Cases Cited:
Brylewski v Maclean [2022] NSWSC 1654
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56
Hamod v State of New South Wales [2011] NSWCA 375
Maclean v Brylewski [2022] NSWCA 217
Maclean v Brylewski [2023] NSWCA 128
Maclean v Brylewski [2023] NSWCA 173

Category: Costs
Parties: Maria Brylewski (First Plaintiff)
Tadeusz Brylewski (Second Plaintiff)
Jacqueline Maclean (First Defendant)
David Raynor (Second Defendant)
Emil Radecki (Third Defendant)
Representation:
Counsel:
Mr M Bennett (First and Second Plaintiff)
Mr C Adamson (First Defendant)
No appearance (Second Defendant)
No appearance (Third Defendant)
Solicitors:
Marsdens Law Group (First and Second Plaintiff)
Mr C Adamson (First Defendant)

File Number(s): 2021/221464
Publication restriction: N/A

JUDGMENT

BASTEN AJ: The present matter is a costs application in proceedings heard on 28 November 2022 and resulting in a judgment delivered on 6 December 2022. The proceedings involved an application by the plaintiffs (Maria and Tadeusz Brylewski) for an order for possession of a residential unit on Rome Street, Canterbury. The plaintiffs held a 50% interest in the property and claimed an entitlement pursuant to a 2013 Deed to the remaining 50% interest held by Ms Brylewski’s uncle, Emil Radecki (the testator), who died on 17 April 2022. Concurrently with the possession proceeding in this Division, there were proceedings in the Equity Division with respect to probate of a 2010 will, the validity of a marriage between the testator and the active defendant, Jacqueline Maclean, and the validity of a subsequent 2020 will in favour of the defendant.
The proceeding in this Division was commenced by the plaintiffs on 3 August 2021. A defence was filed on 28 September 2021. On 6 June 2022 (following Mr Radecki’s death) Ms Maclean’s solicitor filed a notice of motion seeking a number of orders. By a judgment delivered on 6 December 2022 the notice of motion was…

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 (No 2)

Details

AGLC: Brylewski v Maclean (No 2) [2024] NSWSC 227
Case: [2024] NSWSC 227
Decision Date: 12 March 2024

CaseChat Overview and Summary

The case of Brylewski v Maclean (No 2) involved a dispute between the plaintiff, Brylewski, and the defendant, Maclean, concerning costs in civil proceedings. The matter was resolved without an order regarding costs. The plaintiff, Brylewski, had obtained a sequestration order against Maclean's estate due to the unsuccessful outcome of the civil proceedings. The central legal issue was whether a costs order could be made in the civil proceedings after the sequestration order was issued. The court had to consider the effect of the sequestration on the ability to pursue a costs order and the implications of any subsequent events on the general rule that costs follow the event.

The court examined the effect of the delay in pursuing the costs application and the related issue raised in separate proceedings in the Equity Division. It considered whether the subsequent sequestration order affected the plaintiff's ability to claim costs and whether the defendant's unreasonable failure to accept Calderbank offers by the plaintiff justified a gross costs order. The complexity of the case, including the unresolved proceedings in the Equity Division, played a significant role in the court's reasoning. Ultimately, the court had to determine whether the defendant's conduct warranted an indemnity costs order despite the plaintiff's prior offers to settle.

The court concluded that the subsequent sequestration order did not preclude the plaintiff from seeking a costs order in the civil proceedings, but the delay in pursuing the application had to be considered. The unreasonable failure of the defendant to accept Calderbank offers was deemed significant, and the complexity of the case justified an indemnity costs order. The court ordered that the defendant pay the plaintiff's costs on an indemnity basis, reflecting the defendant's unreasonable conduct and the complexity of the proceedings.

Orders