Maclean v Brylewski - [2023] NSWCA 128

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Maclean v Brylewski [2023] NSWCA 128
Hearing dates: 19 May 2023
Date of orders: 8 June 2023
Decision date: 08 June 2023
Before: Ward P; Meagher JA; Simpson AJA
Decision:
1. The applicant pay the respondents’ costs of the proceedings in this Court.

Catchwords:
APPEALS – Leave to appeal – Whether leave required – Monetary threshold
COSTS – Party/Party – General rule that costs follow the event – Proceedings discontinued or dismissed – Where applicant raised 66 grounds of appeal – Where Calderbank offer made by the applicant

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Brylewksi v Maclean [2022] NSWSC 1193
Brylewksi v Maclean [2022] NSWSC 1654
Calderbank v Calderbank [1975] 3 WLR 586
Maclean v Brylewksi [2022] NSWCA 217
Sidoti v Hardy (2021) 105 NSWLR 1; [2021] NSWCA 105

Category: Principal judgment
Parties: Jacqueline Maclean (Applicant)
Maria Brylewski (First Respondent)
Tadeusz Brylewski (Second Respondent)
Representation:
Counsel:
C Adamson (Solicitor) (Applicant)
M Bennett (Respondents)
Solicitors:
Chris Adamson Solicitor (Applicant)
Marsdens Law Group (Respondents)

File Number(s): 2022/00383662
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2022] NSWSC 1654

Date of Decision:

6 December 2022

Before:

Basten AJ

File Number(s):

2021/221464

JUDGMENT

THE COURT: The underlying dispute between the parties to this proceeding relates to the estate of the late Emil Radecki (the deceased) and, relevantly, the continued occupation by the deceased’s widow (Ms Jacqueline Maclean) of a unit in Canterbury (the Property) of which the respondents (Maria and Tadeusz Brylewksi) were, as at the time of the deceased’s death, the registered proprietors of a half interest as tenants in common with the deceased.
These reasons are confined to the question of costs of an appeal filed by Ms Maclean, the appeal having been dismissed during the course of the hearing.

Background

The background to the present proceeding can be gleaned from various decisions in this Court and at first instance, to which reference is made below.
In 2021, the respondents, in proceedings commenced in the Possession List in the Common Law Division, sought possession of the Property. The deceased was at that stage still alive, though the subject of guardianship and financial management orders made by the NSW Civil and Administrative Tribunal in April 2017, and by then a permanent resident of a nursing home. Ms Maclean, who had married the deceased in March 2017, was in occupation of the Property. The NSW Trustee and Guardian filed a submitting appearance on behalf of the deceased in the possession proceedings. Ms Maclean resisted the order for possession and claimed to be in possession of the Property as licensee of the deceased. The respondents, who were and remain co-owners of the Property, relied in those proceedings on entitlements under a deed signed by the deceased in January 2013 under which, among other things, the deceased agreed to devise his remaining half interest in the Property…

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 Maclean v Brylewski

Details

AGLC: Maclean v Brylewski [2023] NSWCA 128
Case: [2023] NSWCA 128
Decision Date: 08 June 2023

CaseChat Overview and Summary

This matter concerned an application for leave to appeal from a decision of the primary court. The applicant, Maclean, sought to appeal against orders made by the primary judge in proceedings against the respondents, Brylewski and others. The central dispute revolved around whether leave to appeal was required given the monetary threshold applicable to certain appeals, and related issues concerning costs.

The Court of Appeal was required to determine two primary legal issues. Firstly, it had to consider whether the appeal brought by the applicant fell within the category of appeals requiring leave, or if it was an appeal as of right, having regard to the monetary threshold stipulated in the relevant legislation. Secondly, the Court was tasked with determining the appropriate orders for costs, particularly in light of the applicant's extensive grounds of appeal and a Calderbank offer made by the applicant.

In its reasoning, the Court found that the appeal did indeed require leave. The Court analysed the relevant legislative provisions and concluded that the monetary threshold was not met, thus necessitating an application for leave to appeal. Regarding costs, the Court noted the general rule that costs follow the event. However, it also considered the circumstances of the proceedings, including the applicant's numerous grounds of appeal and the Calderbank offer. The Court ultimately determined that the applicant should bear the costs of the proceedings in the Court of Appeal.

Consequently, the Court ordered that the applicant pay the respondents’ costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

1. The applicant pay the respondents’ costs of the proceedings in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Maclean v Brylewski [2023] NSWCA 128
Hearing dates:	19 May 2023
Date of orders:	8 June 2023
Decision date:	08 June 2023
Before:	Ward P; Meagher JA; Simpson AJA
Decision:	1. The applicant pay the respondents’ costs of the proceedings in this Court.
Catchwords:	APPEALS – Leave to appeal – Whether leave required – Monetary threshold COSTS – Party/Party – General rule that costs follow the event – Proceedings discontinued or dismissed – Where applicant raised 66 grounds of appeal – Where Calderbank offer made by the applicant
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Brylewksi v Maclean [2022] NSWSC 1193 Brylewksi v Maclean [2022] NSWSC 1654 Calderbank v Calderbank [1975] 3 WLR 586 Maclean v Brylewksi [2022] NSWCA 217 Sidoti v Hardy (2021) 105 NSWLR 1; [2021] NSWCA 105
Category:	Principal judgment
Parties:	Jacqueline Maclean (Applicant) Maria Brylewski (First Respondent) Tadeusz Brylewski (Second Respondent)
Representation:	Counsel: C Adamson (Solicitor) (Applicant) M Bennett (Respondents) Solicitors: Chris Adamson Solicitor (Applicant) Marsdens Law Group (Respondents)
File Number(s):	2022/00383662
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2022] NSWSC 1654 Date of Decision: 6 December 2022 Before: Basten AJ File Number(s): 2021/221464