Maclean v Brylewski

[2022] NSWCA 217

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

1. 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.

2. 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 case. It is, as Brereton JA has observed, an unpromising candidate for a grant of leave to appeal (albeit not a decision immune from challenge).

3. The principles applicable on an application for leave to appeal 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, questions of general public importance, or an injustice which is reasonably clear, in the sense of going beyond [what is] merely arguable”. Similarly, Sheller JA there said that an applicant for leave must demonstrate something more than that the trial judge 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 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 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).

4. It has been said that there is an even greater reluctance to grant leave to appeal where the decision involves an exercise of discretion on a point of practice and procedure rather than an exercise of discretion which determines substantive rights of the parties (see In re The 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 the judge “(a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, 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).

5. In the present case, I accept that an order for the appointment of a representative for the estate to act in the possession proceedings could have been made without the need for a limited grant being made in the probate proceedings. However, it is also relevant to note that the orders that are sought in the notice of motion include that the applicant be added as the fourth defendant in her capacity as administrator ad litem of the estate of the deceased (an order that it was conceded on the hearing of the present application had not been sought in the probate proceedings). In any event, such an error does not to my mind warrant a grant of leave, particularly in circumstances where there has been no determination of the applicant’s notice of motion and it remains open to the applicant to put forward such arguments as she wishes or is advised to make on the hearing of the motion in due course.

6. The nub of the submissions made orally for the applicant (and in the proposed grounds of appeal) was that there was a denial of procedural fairness in that, as a matter of procedural fairness the applicant’s notice of motion should 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 time in the relevant circumstances (see T 5.38), the relevant circumstances being identified as being that it was said that it was extremely unlikely that a trial judge could hear the motion at the beginning of what would be a one day hearing of the proceeding or, if the trial judge did, would allow such an application because this would require the vacation of the hearing date at “enormous expense” to the parties and at expense and inconvenience to the Court (see T 5).

7. I do not accept that the material demonstrates any lack of procedural fairness by the primary judge (nor, for that matter, any failure by his Honour to take into account relevant case management considerations). In particular, I do not accept that the listing of the motion on the date fixed for the hearing of the possession proceedings in any way predetermines the outcome of that motion or prejudices whatever its chances of success may be. As to the suggestion that his Honour did not take into account case management considerations, it is evident that his Honour was alive to the difficulties posed by the parallel sets of proceedings and as to concerns in relation to the delay in determining the proceedings.

8. There is obvious merit to the suggestion that the ultimate resolution of the issues in dispute be dealt with in the one set of proceedings (which would be the case if the possession proceeding was heard together with the probate proceeding) but that is a case management decision yet to be considered by the Court (and one on which reasonable minds might well differ). It does not to my mind raise an issue of principle so as to warrant the grant of leave. Nor am I persuaded that there has been sufficient prejudice occasioned by the decision to list the motion for hearing at the commencement of the possession proceeding notwithstanding that the result of so doing might be that the hearing of the possession proceeding on that date is vacated (which would presumably be the case in any event if the applicant is successful in her attempt to have the matter referred to the Succession List judge to be heard together with the probate proceeding). While I accept that additional costs are likely to be incurred in that event, the issue of costs is not the only consideration to be taken into account.

9. In summary, I am not persuaded that there has been a basis established for this Court to interfere with the decision made by the primary judge in the exercise of his case management of the possession proceeding. I read the qualification in the impugned order (“if the trial judge considers it appropriate to hear it”) as simply recognising that it will be for the trial judge to determine how best to proceed with the matter when it comes before him or her. In circumstances where the respondent appears to have accepted that the notice of motion will be determined before the possession proceeding per se (see at T 16), and could hardly be heard later to oppose such a course, the decision to list the motion at the commencement of that hearing appears to me to be not so unreasonable or unjust as to indicate an error warranting appellate interference.

10. In those circumstances, and with respect to the dissenting view put forward by Brereton JA, I agree with White JA that leave to appeal should be refused with costs.

11. WHITE JA: The applicant, Ms Jacqueline Maclean, seeks leave to appeal from an order made in the Common Law Division on 26 August 2022 (Davies J) that:

“2. NOM [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.”

12. At the same time, Davies J listed the respondents’ proceedings for hearing (Brylewski v Maclean [2022] NSWSC 1193).

13. The respondents are plaintiffs in the court below. They are registered proprietors of a half interest in a property in Rome Street, Canterbury. Until his death they held their interest as tenants in common with a Mr Emil Radecki. Prima facie, the applicant (Ms Maclean) is Mr Radecki’s widow, although the validity of their marriage is put in issue in proceedings in the Succession List referred to below. She is currently in occupation of the property.

14. In the proceedings below the respondents seek an order for possession of the land. They sue Ms Maclean as first defendant, a Mr David Raynor as second defendant and Mr Radecki as third defendant. Ms Maclean claimed to be in possession as licensee of Mr Radecki. Mr Raynor has not entered an appearance.

15. As a co-owner of the property Mr Radecki would prima facie have been entitled to possession. In their claim against him the respondents relied upon a deed signed by Mr Radecki and dated 23 January 2013.

16. The deed provided that Mr Radecki would transfer a one-half interest in the property to the respondents and would leave a will devising his remaining one half interest to them. They would pay him $100,000 by one instalment of $20,000 and thereafter eight successive instalments of $10,000 each. The deed also provided that the respondents would grant Mr Radecki a right of exclusive occupation for his life or such earlier date as he might permanently vacate the land.

17. It is admitted on the pleadings that the NSW Civil and Administrative Tribunal (NCAT) made a guardianship order on 11 April 2017 appointing the Public Guardian for 12 months to make decisions about Mr Radecki’s accommodation, healthcare and medical services; that on 11 April 2017 NCAT made a financial management order and committed Mr Radecki’s estate to the management of the NSW Trustee and Guardian; that on 9 April 2018 the NSW Trustee and Guardian was appointed to make decisions for Mr Radecki in respect of access, accommodation, healthcare and services; that on 7 November 2018 Mr Radecki was moved into a nursing home; and on 8 January 2019, the NSW Trustee and Guardian gave consent for him to become a permanent resident of the Nursing Home. The respondents allege that upon Mr Radecki permanently vacating the property, they became entitled to possession of it.

18. On 10 August 2021 the NSW Trustee and Guardian on behalf of Mr Radecki filed a submitting appearance.

19. On 17 April 2019 the NSW Trustee and Guardian advised Mr Radecki that the NSW Trustee and Guardian had filed a submitting appearance on his behalf, having obtained legal advice on the merits of seeking to set aside the deed of 10 January 2013 which included provision for the transfer of a half share of the property to the respondents. When the deal was entered into the respondents were Mr Radecki’s attorneys under an enduring power of attorney. But they did not act as Mr Radecki’s attorneys in causing him to enter into the deed.

20. Mr Radecki signed the deed having obtained independent legal advice and apparently independent financial advice. The NSW Trustee and Guardian said that their advice was that it could not be concluded that the respondents’ conduct was such as would make the transfer an unconscionable dealing and no evidence was found of special disadvantage to Mr Radecki at the time of the transfer. They advised that he was unlikely to have remedies against the respondents by reason of the transfer of a half interest in the land by him to them and the NSW Trustee had determined to take no further action to recover from the respondents the half share in the property.

21. The possession proceedings had been listed for hearing on 20 April 2022. Mr Radecki died on 17 April 2022 and the hearing did not proceed on 20 April 2022.

22. In proceedings in the Succession List, the applicant seeks letters of administration with the will annexed of an apparent will made by Mr Radecki dated 18 March 2020 under which the applicant is the sole beneficiary subject to a contingent legacy of $10,000 payable to a third party. Ms Maclean also seeks a family provision order.

23. By cross-claim in those proceedings the respondents seek a declaration that the marriage of Mr Radecki and Ms Maclean of 19 March 2017 is a nullity because Mr Radecki then lacked capacity to enter into a marriage. They allege that Mr Radecki’s will or purported will dated 18 March 2020 is invalid on the grounds that he lacked testamentary capacity, and that there are suspicious circumstances attending its execution such that the onus lies on Ms Maclean to prove that he knew and approved of the will.

24. The respondents, by their cross-claim in the Succession List proceedings seek a grant of letters of administration with the will annexed of an earlier will of Mr Radecki made on 21 January 2010 in their favour. They allege that that will was not revoked by Mr Radecki’s marriage to Ms Maclean because that marriage is a nullity. For the same reasons they contend that Ms Maclean would not be entitled to the estate if Mr Radecki died intestate.

25. The primary judge recorded that he had been advised that the respondents had lodged a caveat in respect of the grant of letters of administration to the applicant which was said to be based upon there being ongoing investigations by the police into the circumstances of Mr Radecki’s death and that the respondents were seeking an independent administrator to be appointed to administer the estate. His Honour recorded that the applicant wished to obtain a limited grant of letters of administration in order to challenge the validity of the deed of 23 January 2013 on behalf of the estate, but had not sought such a limited grant when the probate proceedings were before the Succession List judge.

26. On 6 June 2022 the applicant filed a notice of motion in the possession proceedings seeking an order pending the determination of the proceedings that she be appointed administrator of Mr Radecki’s estate for the purpose of representing his estate in defending the claims made by the respondents in the possession proceedings against him and to represent him in making a cross claim against the plaintiffs in the possession proceedings. She sought an order that the notice of appearance, filed by the NSW Trustee and Guardian on behalf of Mr Radecki, be removed from the court file.

27. The applicant sought to have that notice of motion fixed for hearing before the possession proceedings were listed for hearing. The primary judge declined to make that order. His Honour said:

“[30] I declined to make those orders on the basis that they could not be made until the first defendant had obtained, at least, a limited grant in the probate proceedings. Where I had been informed that there was to be a contested application for letters of administration, I did not consider that it was appropriate to appoint the first defendant to represent the estate where she intended to make a substantive claim on the estate’s behalf. If that claim was unsuccessful, the estate was likely to be 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. Accordingly, I stood the directions hearing over to 26 August.

[31] I was subsequently provided with a transcript of the directions hearing before Hallen J in the Probate List on 19 August 2022. Justice Hallen directed that the application for letters of administration should proceed on pleadings because no one had sought that the caveat cease to be in force. Mr Adamson did not make any application in relation to the making of a limited grant in favour of the first defendant.”

28. This is difficult to understand because the primary judge had earlier recorded (at [27]) that in her summons filed in the Succession List Ms Maclean had also sought an order that the caveat be set aside. Be that as it may, the Succession List proceeding is continuing on pleadings. No application for a grant of administration ad litem to permit Ms Maclean to defend the possession proceedings on behalf of the estate has been sought in those proceedings. That is the substance of the relief claimed in the notice of motion filed in the possession proceedings. Ms Maclean seeks to advance a cross-claim in those proceedings on behalf of the estate. Leave to file a cross-claim has not yet been granted. Her notice of motion seeks such leave. By her proposed cross-claim she seeks to allege that the deed of 23 January 2013 is void for uncertainty, but that allegation appears tenuous. She also seeks to allege that when the deed was entered into the respondents were Mr Radecki’s enduring guardians and his fiduciaries. She alleges that the deed was disadvantageous to Mr Radecki for various reasons and seeks an order setting aside the deed.

29. The validity of the deed will also be in issue in the Succession List proceedings as the respondents there seek relief by way of a declaration of constructive trust of Mr Radecki’s remaining 50% interest in the property in their favour for Mr Radecki’s failure to leave his property to them in his will.

28. In her draft notice of appeal the applicant contends that there has been a denial of procedural fairness. The notice of appeal asserts that the court was bound, as a matter of procedural fairness, to fix a date for hearing of the notice of motion which would enable it to be properly heard and in time before the hearing (of the possession proceedings) so that any orders or directions made could be implemented and carried out prior to that final hearing.

29. The primary judge’s decision was made in the course of case management and does not affect the parties’ substantive rights. It would only be in exceptional circumstances that leave to appeal would be granted. It would need to be shown at least that there was an issue of principle at stake or that the applicant would suffer an injustice that was more than seriously arguable.

30. Contrary to the proposed grounds of appeal, the judge’s order does not determine the merits of the applicant’s notice of motion of 6 June 2022. Rather, the merits of that notice of motion are reserved for consideration by the judge before whom the possession proceedings will also be fixed for hearing on 28 November 2022. The order against which leave to appeal is sought is that the notice of motion is fixed for hearing if the judge considers it appropriate to hear it. The respondents accept that it is appropriate that the notice of motion be determined first and that if it is determined in Ms Maclean’s favour the hearing of their claim for possession would not proceed on that day.

31. The applicant faces some hurdles in relation to that notice of motion. She will need to demonstrate why the submitting appearance filed on behalf of Mr Radecki should be set aside. That may require her to show that the proposed claim to be made on behalf of the deceased’s estate to set aside the deed of 10 January 2013, and to obtain an order for retransfer of the respondent’s interest to the estate, is seriously arguable. Mr Adamson, solicitor, who appeared for Ms Maclean below and on the hearing of the leave application, summarised grounds on which that submission would be advanced. The same (or different) arguments can be advanced before the judge hearing the notice of motion.

32. The applicant may need to show why she should be permitted to maintain the claim on behalf of the estate when she apparently did not apply for a grant of letters of administration ad litem or pendente lite before Hallen J. She may also need to establish why, if the claim on behalf of the estate could be made good, it would be an answer to the appellant’s claim for possession against her. At least prima facie, a licence granted to her by Mr Radecki to occupy the property would be terminated by his death. However, it is arguable that Ms Maclean might be entitled to possession on a number of bases.

33. The first is if an administrator appointed for that purpose (either her or someone else) obtained an order setting aside the deed of 23 January 2013 and the subsequent transfer of Mr Radecki’s half interest to the respondents, and she is found to be entitled to the estate either pursuant to the will she propounds of 18 March 2020 or on intestacy.

34. The second is if Ms Maclean is granted letters of administration of Mr Radecki’s estate with the will annexed. Her title as administrator would then date back to Mr Radecki’s death (Probate and Administration Act 1898 (NSW) s 44(1)). If the transfer of Mr Radecki’s 50% interest to the respondents is not set aside but the respondents fail in their claim to enforce their claim for relief by way of constructive trust over Mr Radecki’s remaining half share, then the respondents and Ms Maclean, as from the deceased’s death would all be entitled to possession, with one not to exclude the others.

35. The third is if Ms Maclean’s claim for a family provision order under Ch 3 of the Succession Act 2006 (NSW) is successful. She could challenge Mr Radecki’s promise to devise his remaining 50% interest as a prescribed transaction taking effect on death such that his interest is liable to be designated as notional estate. Even if Ms Maclean is not Mr Radecki’s widow and is not a beneficiary of the estate, she may be entitled to relief by way of a family provision order as his de facto spouse.

36. The issues are undoubtedly complex. That is not a sufficient reason for this Court to intervene on a matter of case management. None of the issues is resolved by the primary judge’s order listing Ms Maclean’s notice of motion of 6 June 2022 for hearing at the same time as the possession proceeding is fixed for hearing. The respondents accept that it would be appropriate that the judge before whom the proceedings are listed determine the notice of motion first, and if that is resolved in Ms Maclean’s favour the hearing of the respondents’ claim for relief in the possession proceeding would need to be adjourned.

37. There are other possibilities. The judge might determine that both the notice of motion and the claim for possession should be remitted to the Succession List judge to be determined at an appropriate time in the management of those proceedings. The judge might dismiss the notice of motion but determine that it is inappropriate to disturb Ms Maclean’s possession pending determination of the Succession List proceedings or further order. The judge might require undertakings from either or both parties as a condition of the grant or refusal of relief.

38. I do not accept that the primary judge’s order denies Ms Maclean procedural fairness. She can advance all of her duly served submissions and evidence both in support of her notice of motion and in answer to the claim for possession.

39. In my view this application is premature. It assumes that Ms Maclean will suffer an adverse outcome. But that is not apparent. Particular caution is called for where this Court is asked to intervene on a matter that raises not even a question of practice and procedure, but of case management.

40. For these reasons I would refuse leave to appeal. For the above reasons I would dismiss the appeal if leave were granted. Costs should follow the event.

41. The parties agreed that if the Court considered leave to appeal should be given or the judges were divided on that question, this application should be referred to a third judge for determination on the papers and the transcript of argument of both the application for leave and the appeal, if leave be granted.

42. BRERETON JA: On 26 August 2022, a judge managing the Possession List in the Common Law Division ordered that a motion which had been filed by the applicant Ms Jacqueline Maclean (the first defendant below) on 6 June 2022, by which she sought in substance an order pursuant to Uniform Civil Procedure Rules 2005 (UCPR), r 7.10 that she be appointed to represent the deceased third defendant her late husband Mr Radecki in the substantive proceedings, and that the proceedings be transferred to the Succession List, “be fixed for hearing on 28 November 2022 if the trial judge considers it appropriate to hear it” – that also being the date which his Honour appointed for the trial of the substantive proceedings for possession for trial. ^[1] A ruling by a list judge in a directions hearing in a busy list that a notice of motion be set down for hearing by the trial judge at the trial which was also fixed to commence in three months’ time is at first sight an unpromising candidate for a grant of leave to appeal. However, such a ruling is not immune from appellate review. It is not surprising that a busy list judge may occasionally not fully appreciate how such a ruling may impact on the ultimate resolution of the substantive dispute between the parties. If the ruling will occasion injustice, there is no reason why this Court should not intervene. It is to remedy such injustices that leave to appeal from interlocutory orders is available.

    1. Brylewski v Maclean [2022] NSWSC 1193.

43. Before the events which gave rise to these proceedings, Mr Radecki was the sole registered proprietor of a property in Canterbury. On 23 January 2013, he entered into a deed with the respondents whereby he agreed to transfer to them immediately a half interest in the property and to devise the remaining half interest in the property to them upon his death, they agreed to pay him $100,000 by instalments and to allow him exclusive occupation of the property “for his life or such earlier date as [he] may permanently cease to occupy the land”.

44. According to Ms Maclean, in or about 2014 she began to assist Mr Radecki with shopping, housework and medical appointments, and in January 2017 she became his carer in receipt of a carer’s pension. They were married on 9 March 2017, although the respondents dispute the validity of the marriage. She cohabited with him as his wife in the Canterbury property until he went into the Canterbury Opal Aged Care Facility.

45. On 11 April 2017, in place of an earlier guardianship order and financial management order which had given responsibility for Mr Radecki to Ms Maclean, the New South Wales Civil and Administrative Tribunal (NCAT) made a Financial Management Order committing his estate to the NSW Trustee and Guardian (NSWT&G), and on 9 April 2018 NCAT appointed the Public Guardian as his guardian for a period of 12 months with power to decide the third defendant’s accommodation and where he may reside. On or about 18 November 2018 the Public Guardian directed that Mr Radecki reside at the Canterbury Opal Aged Care Facility on a temporary basis, and he vacated the property on that day. On 8 January 2019, the Public Guardian directed that the third defendant was to remain at Opal Aged Care on a permanent basis. On 4 April 2019 NCAT made a Continuing Guardianship Order appointing the Public Guardian as the guardian for the third defendant on a three-year basis from 4 April 2019. Ms Maclean contends that those directions were against her wishes and those of Mr Radecki.

46. The respondents, taking the view that Mr Radecki had permanently vacated the property, commenced proceedings for possession of the property on 3 August 2021. The NSWT&G obtained advice from a solicitor to the effect that Mr Radecki was unlikely to have remedies against the respondents in respect of the transfer of a half interest in the land by him to them. It determined to take no further action to recover from the respondents the half share in the property that had been transferred. Perhaps incorrectly apprehending the effect of the Deed, given its provision for a devise of the other half share upon Mr Radecki’s death, and preferring to have the property sold so that it could resort to Mr Radecki’s supposed half interest in the proceeds to pay his nursing home fees, the NSWT&G on behalf of Mr Radecki filed a submitting appearance.

47. Ms Maclean defended the proceedings on the basis that she was in occupation under a licence from her husband, and that he had not “permanently vacated” but had been involuntarily removed. Assuming that upon moving into the nursing home he “permanently vacated” the property within the meaning of the Deed, his right under the Deed to exclusive occupation as against the respondents would then have terminated; however, he remained a tenant-in-common and as such entitled to occupy the property, although not to the exclusion of the other tenants-in-common. It is at least arguable that the licence which permitted his wife to reside in their matrimonial home while they cohabited continued after he moved into the nursing home until his death. In any event, according to Ms Maclean, on 19 February 2022 he left the nursing home for a respite stay at home, and thereafter remained at home in her care until his death.

48. The possession proceedings were set down to be heard on 20 April 2022. Before the hearing Ms Maclean sought unsuccessfully to file a cross-claim impugning the Deed, leave being refused on the basis that she had no standing independent of Mr Radecki, who had filed a submitting appearance, to do so. Mr Radecki died on 17 April 2022. His last will, dated 18 March 2020, the validity of which is disputed by the respondents, gives all his property (subject to a contingent gift of some cash to a third party) to Ms Maclean.

49. No judge was available to hear the case on 20 April 2022, so the trial did not proceed. On 6 June 2022 Ms Maclean filed a motion claiming, in effect, appointment as an administrator ad litem (this has subsequently been refined to seek in substance appointment under UCPR, r 7.10 to represent Mr Radecki’s estate), and transfer of the proceedings to the Succession list. She has also commenced proceedings in the Probate list for administration with the will of 18 March 2020 annexed, and for a family provision order. Those proceedings, which are defended by the respondents, are continuing on pleadings, pursuant to directions made by Hallen J.

50. In anticipation of the directions hearing before the primary judge on 26 August, Ms Maclean’s solicitor provided to the judge short minutes which sought that the 6 June motion be set down for hearing. Ms Maclean also sought leave to file an amended defence and cross-claim impugning the Deed for undue influence and unconscionability. His Honour declined to set the motion down before the trial. Although – quite appropriately in a directions list – his Honour did not then give reasons, upon becoming aware that there was an application for leave to appeal his Honour provided reasons, which included the following:

“[28] At the adjourned directions hearing on 29 July 2022 Mr Adamson on behalf of the first defendant proposed that orders be made in the possession proceedings changing the name of the third defendant to “Emil Radecki deceased”. He also sought an order:

In the event that the first defendant is given leave to represent the estate of Emil Radecki deceased:

(ii)   An order that Jacqueline Maclean be added and as the fourth defendant as follows:

“Jacqueline Maclean as administrator ad litem of the estate of Emil Radecki, deceased”.

[29] Mr Adamson sought orders that the notice of motion of 6 June 2022 be fixed for hearing, and that the first defendant be appointed to represent the estate pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW).

[30] I declined to make those orders on the basis that they could not be made until the first defendant had obtained, at least, a limited grant in the probate proceedings. Where I had been informed that there was to be a contested application for letters of administration, I did not consider that it was appropriate to appoint the first defendant to represent the estate where she intended to make a substantive claim on the estate’s behalf. If that claim was unsuccessful, the estate was likely to be 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. Accordingly, I stood the directions hearing over to 26 August.

[31] I was subsequently provided with a transcript of the directions hearing before Hallen J in the Probate List on 19 August 2022. Justice Hallen directed that the application for letters of administration should proceed on pleadings because no one had sought that the caveat cease to be in force. Mr Adamson did not make any application in relation to the making of a limited grant in favour of the first defendant.

[32] At the directions hearing before me on 26 August 2022 the plaintiff sought that the possession proceedings together with the first defendant’s notice of motion of 6 June 2022 be set down for hearing. The first defendant sought the following orders:

1.   An order changing the name of the third defendant to “Emil Radecki, deceased”.

2. An order that the first defendant represent the estate of Emil Radecki deceased pursuant to r 7.8 and r 7.9 Uniform Civil Procedure Rules 2005 (NSW); and

3.   That Jacqueline Maclean be added and as the fourth defendant as follows:

Jacqueline Maclean as administrator ad litem of the estate of Emil Radecki, deceased”.

4.   That the notice of motion filed herein on 6 June 2022 be set down for hearing on ________________.

[33] As I indicated earlier, I fixed the possession proceedings for hearing and stood over the notice of motion for hearing if the trial judge considered it appropriate to hear that notice of motion. I made those orders for these reasons.

[34] The present proceedings are possession proceedings only. The plaintiffs are registered proprietors of the land. No orders were or are sought against the third defendant because at the time the proceedings were commenced the third defendant was not an occupier of the property. The only occupier was the first defendant.

[35] The third defendant is now dead, and there must be some doubt about whether his estate will have any right to challenge the entry into the deed of 23 January 2013. In any event, the circumstances of how the plaintiffs came to be registered proprietors of the land is irrelevant to the question 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, the right of a third person who is interested in the land is irrelevant.

[36] The deed was entered into on 23 January 2013 and, until the present possession proceedings commenced, there had not been any challenge to the validity of that deed. Where the plaintiffs are registered proprietors of the land, ordinarily it would be necessary for the estate to show that they had become registered by fraud. However, Mr Adamson has said that the estate would rely on some personal equity to have the deed and the transfer set aside.

[37] In my opinion, if the first defendant wished to challenge the validity of that deed and was able to do so on behalf of the estate, such a challenge should be made in separate proceedings. The issues that would be raised in such a challenge would be quite unrelated to any issue in the possession proceedings.

[38] Although Mr Adamson relied on this occasion on rr 7.8 and 7.9 of the UCPR, that change did not alter the position as I saw it at the previous directions hearing. There were to be contested proceedings to obtain a grant of letters of administration. It was inappropriate to appoint the first defendant to represent the estate in those circumstances, and where she intended to commit the estate to a substantive claim.

[39] There was the further matter of delay. It is not known when letters of administration will be granted. The plaintiffs commenced these proceedings some 13 months ago. To delay them for an indefinite period until the conclusion of any contested probate proceedings would not be consistent with s 56 of the Civil Procedure Act 2005 (NSW).

[40] On the other hand, I was concerned not to circumscribe what the judge hearing the possession proceedings may wish to do as far as the first defendant’s notice of motion was concerned. For those reasons I fixed the possession proceedings for hearing and stood the notice of motion over to the same date.”

53. Paragraph [30] of his Honour’s reasons appears to proceed on a misapprehension that an order under UCPR, r 7.10 could not be made absent at least a limited grant in the Probate proceedings. That, with respect, is incorrect: the whole purpose of r 7.10 is to enable an appointment notwithstanding that the applicant does not have a grant, limited or otherwise. Insofar as his Honour was concerned that by bringing a cross-claim on behalf of the estate Ms Maclean might visit on the estate a substantial costs liability, that risk can be averted by an appropriate order requiring her to bear the costs personally, unless the Court otherwise orders.

53. While it is correct that it is no defence to a claim for possession that a third party has a superior right, it does not follow that how a registered proprietor obtained title is necessarily irrelevant. For example, it is common place in proceedings for possession brought by mortgagees for the defendant to bring a cross-claim impugning the mortgage for undue influence, unconscionability or under the Contracts Review Act 1980 (NSW), and for those cross-claims to be heard concurrently with the claim for possession; in the past, the possession proceedings were often transferred to the Equity Division for that purpose, though nowadays it is not uncommon for the cross-claim to be heard with the claim for possession in the Common Law Division. Moreover, the statement of claim pleads and relies upon the Deed as part of the foundation for the claim for possession. ^[2] For that reason, I do not understand the primary judge’s statement that “if the first defendant wished to challenge the validity of that deed and was able to do so on behalf of the estate, such a challenge should be made in separate proceedings. The issues that would be raised in such a challenge would be quite unrelated to any issue in the possession proceedings”. ^[3]

    2. Statement of Claim of 3 August 2021 at [6]-[10].

    3. Primary judgment at [37].

54. As it presently seems to me, the real issue is whether there is some basis on which Ms Maclean is entitled to remain in occupation of the property which for at least five years has been her matrimonial home with Mr Radecki. Such an entitlement might be derived from:

1. a licence from Mr Radecki (such a licence might well be implied in her favour during Mr Radecki’s lifetime. Mr Radecki was entitled to possession not only pursuant to the Deed, but also as a registered proprietor. It was in issue whether he had “permanently vacated” – particularly given that he returned to live there. Upon his vacating the property his entitlement under the Deed to exclusive possession against the other proprietors, the respondents, would have come to an end. But as a registered proprietor he remained entitled to possession, in common with them. While any such licence would have expired upon his death, unless renewed by his legal personal representative, the statement of claim has not been amended to plead Mr Radecki’s death and any consequence of it);

2. her beneficial entitlement under Mr Radecki’s will (which would be to the whole property if the Deed were set aside. It is also conceivable that the Court might, while declining to set aside the Deed, decline to specifically enforce it as to the second half interest, which would leave Ms Maclean with a beneficial half interest as tenant-in-common with the respondents);

3. a family provision order (which, as the Deed, at least insofar as it affects Mr Radecki’s remaining share in the property, takes effect upon the death of Mr Radecki, is a prescribed transaction, could extend to designating and devising to Ms Maclean that interest).

56. It follows that the ultimate resolution of whether Ms Maclean should be entitled to remain in occupation depends upon whether the Deed is set aside, whether the will is valid, and whether she obtains a family provision order. It may be that ultimately Ms Maclean’s claims fail, and at least the claim to set aside the Deed faces some obstacles (including striking out the submitting appearance, and the legal advice obtained by NSWT&G), but they have not been shown to be devoid of prospects of success. While the beneficiary – even a sole beneficiary – of an unadministered estate may not be able to sustain a right to occupation at law, her claim as such, until resolved, would be a powerful discretionary defence to a claim for appointment of trustees for sale under Conveyancing Act 1919 (NSW), s 66G. It seems to me practically inconceivable that a widow should be ejected from her matrimonial home of five years until those issues have been resolved. For the possession claim to be tried and determined before the real issues are resolved would risk that very outcome. In my opinion, for the trial of the possession proceedings to occur without prior resolution of the motion would risk great injustice.

57. Before us Mr Brown, who argued the case for the respondents with his customary competence, courtesy and candour, submitted that this could all be resolved by the trial judge when the matter comes on for trial, as the motion would be heard first and, if successful, would practically inevitably result in the trial being adjourned. There are however several objections to this course. First, it is not at all clear that this is what the primary judge had in mind: his Honour fixed the motion for hearing on 28 November 2022 “if the trial judge considers it appropriate to hear it”, which leaves to the trial judge a discretion whether or not to hear it, a discretion which might well, if informed by the primary judge’s reasoning that the validity of the Deed was an irrelevance in the possession proceedings, be exercised against hearing it at all. Secondly, a party who seeks at the trial amendments etc which would disrupt and vacate the trial faces a much higher practical burden because of considerations of cost, convenience and court efficiency. In circumstances where she filed the 6 June motion very promptly after Mr Radecki’s death and despite her efforts to bring it to a head it has still not been heard, Ms Maclean ought not have to bear that additional burden. Thirdly, while Mr Brown, who is not briefed to appear at the trial, suggested that it was unlikely that the cost and inconvenience of such disruption to a trial would be relied upon in opposition to the motion, he could not entirely eschew that prospect. Fourthly, all parties will have to incur the costs of preparing for a trial which, if the motion succeeds and results in a transfer of the whole proceedings to the Succession list (which, as it presently seems to me, is at least a very likely outcome) may not yet occur for quite some time. Leaving the question open until the hearing risks prejudice to all parties at the hearing. Sound principles of case management required in this case that the motion be determined before the substantive hearing. There is no apparent reason why it could not have been: resolution of the motion would not require a lengthy hearing.

58. I would grant leave to appeal.

59. The court was originally constituted as a two-judge bench, to hear a “leave only” application. At the hearing, both parties agree that if it were necessary to do so, or for the purposes of dealing with any consequent appeal if leave were granted, then so long as the Court did not (as sought by the applicant) proceed itself to hear and determine the 6 June motion (in respect of which the respondents might wish to adduce further evidence), there would be no objection to an expanded bench disposing of the leave application, and any consequent appeal, on the papers (including the transcript of the hearing in this Court), without a further oral hearing or written submissions.

60. For the reasons set out above, the orders I favour are:

1. Grant leave to appeal;

2. Allow the appeal;

3. Set aside the order appointing 28 November 2022 for the trial of the substantive proceedings, so that only the 6 June motion is listed for that date;

4. Order that the respondents pay the applicant’s costs of the appeal, including the application for leave;

5. Grant the respondents an indemnity certificate under s 6 of the Suitors’ Fund Act1951 (NSW).

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Endnotes

Decision last updated: 27 October 2022