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Maclean v Brylewski

Maclean v Brylewski

Case [2022] NSWCA 217 27 October 2022

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Maclean v Brylewski [2022] NSWCA 217
Hearing dates: 14 October 2022
Decision date: 27 October 2022
Before: Ward P at [1];
White JA at [11];
Brereton JA at [44]
Decision:
Summons filed 30 August 2022 seeking leave to appeal is refused, with costs.

Catchwords:
APPEALS – procedural fairness – whether court below was bound to fix a date for the hearing of a notice of motion prior to the date of the final hearing – leave to appeal refused

Legislation Cited:
Contracts Review Act1980 (NSW)
Conveyancing Act 1919 (NSW), s 66G
Probate and Administration Act 1898 (NSW), s 44(1)
Succession Act 2006 (NSW), Ch 3
Suitors’ Fund Act1951 (NSW)

Cases Cited:
Be Financial Pty Ltd v Das [2012] NSWCA 164
Carolan v AMF Bowling Pty Limited [1995] NSWCA 69
Coffs Harbour City Council v Noubia Pty Limited [2022] NSWCA 32
House v The King (1936) 55 NSWLR 499; [1936] HCA 40
In re The Will of FB Gilbert (1946) 46 SR (NSW) 318
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56

Category: Principal judgment
Parties: Jacqueline Maclean (Applicant)
Maria Brylewski (First Respondent)
Tadeusz Brylewski (Second Respondent)
Representation:
Counsel:
J E F Brown (Respondents)
Solicitors:
C Adamson (Applicant)
Marsdens Law Group (Respondents)

File Number(s): 2022/259474
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2022] NSWSC 1193

Date of Decision:

26 August 2022

Before:

Davies J

File Number(s):

2021/221464

JUDGMENT

WARD P: This is an application for leave to appeal from an interlocutory order made in the Common Law Division on 26 August 2022. The application was heard by White and Brereton JJA on 14 October 2022 on a leave only basis. In the circumstances explained in the respective judgments of White JA (at [43]) and Brereton JA (at [59]), the application was referred to me as part of an expanded bench for determination (in my case on the papers and the transcript of the argument in this Court) of both the application for leave and, if leave be granted, the appeal. The background to the present dispute has been outlined in the judgments of White JA and Brereton JA, which I have had the advantage of reading in draft; and I do not propose to repeat it here.
The impugned decision of the primary judge (to list the applicant’s 6 June 2022 notice of motion for hearing (if the trial judge considers it appropriate) on 28 November 2022 (the date fixed for the hearing of the possession proceeding itself), as opposed to its being listed for hearing before the possession proceeding was listed to commence), is pre-eminently a matter of practice and procedure, being concerned with the management of 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 Maclean v Brylewski

Details

AGLC: Maclean v Brylewski [2022] NSWCA 217
Case: [2022] NSWCA 217
Decision Date: 27 October 2022

CaseChat Overview and Summary

The appeal concerned a dispute between Maclean and Brylewski. The primary issue before the Court of Appeal was whether the court below was obliged to schedule a hearing for a notice of motion before the date fixed for the final hearing of the substantive proceedings. Leave to appeal was sought from the decision of the court below.

The central legal question before the Court of Appeal was one of procedural fairness. Specifically, the court had to determine whether the failure to list the notice of motion for hearing prior to the final hearing constituted a breach of procedural fairness, thereby vitiating the proceedings or requiring a different outcome.

The Court of Appeal, comprising Ward P, White and Brereton JJA, refused leave to appeal. The court's reasoning, though not detailed in the provided text, implicitly found that the court below was not bound to fix a date for the notice of motion hearing before the final hearing. This suggests an understanding that the scheduling of interlocutory matters is within the discretion of the trial judge, and that such discretion, when exercised, does not necessarily offend the principles of procedural fairness, particularly if the substantive hearing itself afforded a fair opportunity to address the issues.

The summons filed on 30 August 2022 seeking leave to appeal was refused, with costs ordered in favour of the respondent.

Orders

Orders of the court

Summons filed 30 August 2022 seeking leave to appeal is refused, with costs.

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

Full text does not contain this section.

Citations

AGLC Citation

Maclean v Brylewski [2022] NSWCA 217

Most Recent Citation

Maclean v Brylewski, in the matter of Maclean [2024] FCA 1005

Cases citing this decision · 6 of 6 shown

Maclean v Brylewski, in the matter of Maclean
[2024] FCA 1005 Para 21

…y property. Ms Maclean’s application for leave to appeal his Honour’s orders was dismissed with costs on 27 October 2022: see Maclean v Brylewski [2022] NSWCA 217 (Ward P and White JA, Brereton JA dissenting). The costs awarded against Ms Maclean by the Court of Appeal on 27 October 2022 have since been assessed at…
Brylewski v Maclean (No 2)
[2024] NSWSC 227 Para 18

…there is no reason to not award the successful plaintiffs the costs of the substantive proceedings on the basis of delay. 5. Maclean v Brylewski [2022] NSWCA 217. 6. Maclean v Brylewski [2023] NSWCA 128. 7. Maclean v Brylewski [2023] NSWCA 173.…
Darley (No 2)
[2023] FedCFamC1A 112 Para 8

…tion to strike out part of a pleading); Jess & Jess (No 3) [2023] FedCFamC1A 2 (orders for a separate hearing on a question); Maclean v Brylewski [2022] NSWCA 217 (setting a case for hearing); and Dupois v Queensland Police Service & Anor [2023] QCA 44 (orders adjourning a case for directions by a judge in a partic…
Maclean v Brylewski
[2023] NSWCA 128 Para 8

…nting) refused leave to appeal and dismissed the applicant’s summons filed 30 August 2022 seeking leave to appeal with costs ( Maclean v Bryle wksi [2022] NSWCA 217).…
Brylewski v Maclean
[2022] NSWSC 1654 Para 21

…[5] that leave should generally be declined if the challenge was limited to the case management of matters in a Division. [6] 4. Maclean v Brylewski [2022] NSWCA 217 (“Maclean”). 5. (1946) 46 SR (NSW) 318. 6. Maclean at [4], [10], [31].…
Tenant RT11421 v Commissioner for Social Housing (Appeal)
[2023] ACAT 48 Para 3

…ns Pty Ltd [2001] NSWCA 274 at [45] per Heydon JA, as his Honour then was (with whom Sheller JA and Studdert AJA agreed); Maclean v Brylewski [2022] NSWCA 217. [25] Hossain v Minister for Immigration and Border Protection & Anor [2018] HCA 34 at [24]-[25]…

View all 6 citing cases →

Cases cited in this decision · 14 of 14 shown

Lahoud v Willoughby City Council
[2022] NSWCA 214 Para 4

…e Will of FB Gilbert (1946) 46 SR (NSW) 318 at 323 per Jordan CJ (with whom Maxwell J and Nicholas CJ in Eq agreed); Lahoud v Willoughby City Council [2022] NSWCA 214 at [29]). Ordinarily, a discretionary decision on a matter of practice and procedure will be overturned on appeal only if it can be demonstrated that…
Brylewski v Maclean
[2022] NSWSC 1193 Para 12

…At the same time, Davies J listed the respondents’ proceedings for hearing ( Brylewski v Maclean [2022] NSWSC 1193).…
Coffs Harbour City Council v Noubia Pty Limited
[2022] NSWCA 32 Para 3

…(with whom Young JA agreed.) Numerous authorities have applied those principles (see for example Coffs Harbour City Council v Noubia Pty Limited [2022] NSWCA 32 at [67] per Preston CJ of the LEC; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] per Campbell JA (with whom Young and Meagher JJA agreed); and Secre…
Secretary, Department of Family and Community Services v Smith
[2017] NSWCA 206 Para 3

…per Campbell JA (with whom Young and Meagher JJA agreed); and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] per Gleeson JA (with whom Macfarlan and Payne JJA agreed).…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 3

…e was arguably wrong in the conclusion at which the trial judge had arrived. (See also statements to similar effect in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [33] per Basten JA; and in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56 at [22] per Campbell JA (with whom Young JA agreed.) Numerous au…
Hanshaw v National Australia Bank Ltd
[2012] NSWCA 100

…stion of any right that the first defendant might have to remain in occupation of the land. As Young JA said in Hanshaw v National Australia Bank Ltd [2012] NSWCA 100; (2012) 264 FLR 294 at [34]: Again as the action in ejectment only concerns the better right to possession between the plaintiff and the defendant, t…
Jaycar Pty Ltd v Lombardo
[2011] NSWCA 284 Para 3

…les (see for example Coffs Harbour City Council v Noubia Pty Limited [2022] NSWCA 32 at [67] per Preston CJ of the LEC; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] per Campbell JA (with whom Young and Meagher JJA agreed); and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597;…
Zelden v Sewell; Henamast Pty Ltd v Sewell
[2011] NSWCA 56 Para 3

…tements to similar effect in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [33] per Basten JA; and in Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56 at [22] per Campbell JA (with whom Young JA agreed.) Numerous authorities have applied those principles (see for example Coffs Harbour City Council v Nou…
Stedman v O'Hearn;Hosemans v O'Hearn
[2006] NSWSC 1122

…liable for substantial costs. In any event, r 7.10 is more appropriately invoked where an estate is otherwise being sued: eg, Stedman v O’Hearn [2006] NSWSC 1122; Government Insurance Office v Johnson [1981] 2 NSWLR 617 at 623. I was informed that the probate proceedings would be before Hallen J on 19 August 2022. A…
Smith v Department of Family and Community Services
[2004] FCA 1428 Para 3

…reston CJ of the LEC; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] per Campbell JA (with whom Young and Meagher JJA agreed); and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] per Gleeson JA (with whom Macfarlan and Payne JJA agreed).…
Micallef v ICI Australia Operations Pty Ltd
[2001] NSWCA 274 Para 4

…urred, even though the error in question did not explicitly appear on the face of the reasoning” (see Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] per Heydon JA, as his Honour then was (with whom Sheller JA and Studdert AJA agreed).…
Carolan v AMF Bowling Pty Ltd
[1995] NSWCA 69 Para 3

…peal are well known and were articulated by this Court (Kirby P, as his Honour then was, Sheller JA and Cole JA) in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69. At [46], Kirby P said that ordinarily it was appropriate to grant leave to appeal only concerning “matters that involve issues of principle, questio…
House v R
[1936] HCA 40 Para 6

…ession proceeding. At the hearing of the application in this Court it was said that there was an error of the House v The King (1936) 55 NSWLR 499; [1936] HCA 40 kind in that the primary judge had failed to take into consideration the need to ensure a fair hearing within a reasonable time in the relevant circums…
House v The King
63 WN 176 Para 6

…have been heard in advance of the possession proceeding. At the hearing of the application in this Court it was said that there was an error of the House v The King (1936) 55 NSWLR 499; [1936] HCA 40 kind in that the primary judge had failed to take into consideration the need to ensure a fair hearing within a reasonable…

Legislation cited in this decision · 7

Probate and Administration Act 1898 (NSW)
44(1), 44(1)) 2 mentions (from Para 34)
Uniform Civil Procedure Rules 2005 (NSW)
7.10 2 mentions (from Para 42)
Civil Procedure Act 2005 (NSW)
1 mention
Contracts Review Act 1980 (NSW)
1 mention (from Para 53)
Conveyancing Act 1919 (ACT)
66G 1 mention (from Para 56)
Succession Act 2006 (NSW)
1 mention (from Para 35)
Suitors’ Fund Act 1951 (NSW)
1 mention (from Para 5)

Medium Neutral Citation:	Maclean v Brylewski [2022] NSWCA 217
Hearing dates:	14 October 2022
Decision date:	27 October 2022
Before:	Ward P at [1]; White JA at [11]; Brereton JA at [44]
Decision:	Summons filed 30 August 2022 seeking leave to appeal is refused, with costs.
Catchwords:	APPEALS – procedural fairness – whether court below was bound to fix a date for the hearing of a notice of motion prior to the date of the final hearing – leave to appeal refused
Legislation Cited:	Contracts Review Act1980 (NSW) Conveyancing Act 1919 (NSW), s 66G Probate and Administration Act 1898 (NSW), s 44(1) Succession Act 2006 (NSW), Ch 3 Suitors’ Fund Act1951 (NSW)
Cases Cited:	Be Financial Pty Ltd v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Limited [1995] NSWCA 69 Coffs Harbour City Council v Noubia Pty Limited [2022] NSWCA 32 House v The King (1936) 55 NSWLR 499; [1936] HCA 40 In re The Will of FB Gilbert (1946) 46 SR (NSW) 318 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56
Category:	Principal judgment
Parties:	Jacqueline Maclean (Applicant) Maria Brylewski (First Respondent) Tadeusz Brylewski (Second Respondent)
Representation:	Counsel: J E F Brown (Respondents) Solicitors: C Adamson (Applicant) Marsdens Law Group (Respondents)
File Number(s):	2022/259474
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2022] NSWSC 1193 Date of Decision: 26 August 2022 Before: Davies J File Number(s): 2021/221464