Chalik v Chalik (No 3) - [2024] NSWCA 313

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chalik v Chalik (No 3) [2024] NSWCA 313
Hearing dates: 16 December 2024
Date of orders: 20 December 2024
Decision date: 20 December 2024
Before: Mitchelmore JA
Decision:
(1)   The appellant’s notice of motion dated and filed on 21 November 2024 is dismissed.
(2)   The appellant’s notice of motion dated and filed on 10 December 2024 is dismissed.
(3)   Costs of the notices of motion dismissed in orders (1) and (2) above are reserved.
(4)   List the appeal for directions before the Registrar of the Court of Appeal on 3 February 2025.

Catchwords:
CIVIL PROCEDURE — stay of order to distribute estate sought pending appeal — where question of stay already determined — notices of motion impermissibly used to appeal from decision — no material change in circumstances — notices of motion dismissed

Cases Cited:
Chalik v Chalik [2024] NSWCA 273
Gregory Roman Chalik v Igor Chalik [2023] NSWCA 203
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103

Category: Procedural rulings
Parties: Gregory Roman Chalik (self-represented) (Appellant)
Isaac Chalik (self-represented) (Respondent)
File Number(s): 2024/00094840
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2024] NSWSC 177

Date of Decision:

16 February 2024

Before:

Henry J

File Number(s):

2021/296823; 2021/326779

JUDGMENT

The appellant in these proceedings, Gregory Chalik, is appealing from a decision of Henry J, handed down on 16 February 2024, concerning the estate of the late Margaret Chalik: Chalik v Chalik [2024] NSWSC 117. Margaret Chalik was survived by her two sons, Gregory Chalik and Isaac (formerly, Igor) Chalik. Isaac Chalik was the defendant in the proceedings before Henry J and he is the respondent in the present appeal. So as to avoid confusion and without disrespect to either party, I will refer to them below as Gregory and Isaac, respectively.
On 16 December 2024, I heard argument on two notices of motion filed by Gregory. It is necessary to place those notices of motion in the context of the convoluted procedural history surrounding this appeal.
Henry J outlined the main claims in the proceedings at the beginning of her Honour’s reasons:

“[4] At the time of her death, the deceased had dementia, was residing in a nursing home and her estate was managed by the NSW Trustee and Guardian (NSW Trustee). The deceased’s estate is now valued at $1,652,231.89, consisting entirely of cash.
[5] The deceased made a series of wills over her life. The deceased’s penultimate will, made on 29 October 1998 (1998 Will), left her estate equally to Gregory and Isaac and appointed the NSW Public Trustee (now known as the NSW Trustee and Guardian) as the executor and trustee of her estate.
[6] The deceased’s last will, made on 23 April 2013 (2013 Will), leaves everything to Gregory and appoints him as sole executor. It was prepared by Mr Mourice Wermut, a solicitor, who Gregory had arranged for the…

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 Chalik v Chalik (No 3)

Details

AGLC: Chalik v Chalik (No 3) [2024] NSWCA 313
Case: [2024] NSWCA 313
Decision Date: 20 December 2024

CaseChat Overview and Summary

In *Chalik v Chalik (No 3)*, the appellant sought a stay of an order to distribute an estate pending an appeal. The Court of Appeal of the Supreme Court of Tasmania considered two notices of motion filed by the appellant, which the court determined were impermissibly used to appeal from a prior decision on the question of a stay.

The primary legal issue before the court was whether the appellant had established a sufficient basis to warrant a stay of the distribution order, particularly in light of a previous determination on the same issue. The court was required to assess whether there had been any material change in circumstances since the prior decision that would justify reconsidering the stay application.

Mitchelmore JA found no material change in circumstances to justify a fresh application for a stay. The court applied the principle that a party cannot use a notice of motion to appeal from a decision that has already been made, especially when the grounds for the new application are substantially the same as those previously considered and rejected. Consequently, both notices of motion were dismissed. The court reserved costs for the dismissed notices of motion and listed the appeal for directions.

Orders

Orders of the court

(1) The appellant’s notice of motion dated and filed on 21 November 2024 is dismissed.

(2) The appellant’s notice of motion dated and filed on 10 December 2024 is dismissed.

(3) Costs of the notices of motion dismissed in orders (1) and (2) above are reserved.

(4) List the appeal for directions before the Registrar of the Court of Appeal on 3 February 2025.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Chalik v Chalik (No 3) [2024] NSWCA 313
Hearing dates:	16 December 2024
Date of orders:	20 December 2024
Decision date:	20 December 2024
Before:	Mitchelmore JA
Decision:	(1) The appellant’s notice of motion dated and filed on 21 November 2024 is dismissed. (2) The appellant’s notice of motion dated and filed on 10 December 2024 is dismissed. (3) Costs of the notices of motion dismissed in orders (1) and (2) above are reserved. (4) List the appeal for directions before the Registrar of the Court of Appeal on 3 February 2025.
Catchwords:	CIVIL PROCEDURE — stay of order to distribute estate sought pending appeal — where question of stay already determined — notices of motion impermissibly used to appeal from decision — no material change in circumstances — notices of motion dismissed
Cases Cited:	Chalik v Chalik [2024] NSWCA 273 Gregory Roman Chalik v Igor Chalik [2023] NSWCA 203 Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
Category:	Procedural rulings
Parties:	Gregory Roman Chalik (self-represented) (Appellant) Isaac Chalik (self-represented) (Respondent)
File Number(s):	2024/00094840
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2024] NSWSC 177 Date of Decision: 16 February 2024 Before: Henry J File Number(s): 2021/296823; 2021/326779