Maclean v Brylweski

[2023] NSWCA 173

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Maclean v Brylewski [2023] NSWCA 173

Hearing dates:

26 July 2023

Date of orders:

26 July 2023

Decision date:

28 July 2023

Before:

Ward P; Simpson AJA

Decision:

Application for leave to appeal refused with costs.

Catchwords:

APPEALS – Leave to appeal – Primary judge refused stay of execution of writ of possession

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 7.10, 36.17

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Brylewksi v Maclean [2022] NSWSC 1654

Brylewksi v Maclean [2023] NSWSC 876

Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69

Clarke v State of New South Wales [2015] NSWCA 27

House v The King (1936) 55 NSWLR 499; [1936] HCA 40

Jaycar Pty Limited v Lombardo [2011] NSWCA 284

Maclean v Brylewksi [2023] NSWCA 128

Category:

Principal judgment

Parties:

Jacqueline Maclean (Applicant)
Maria Brylewski (First Respondent)
Tadeusz Brylewski (Second Respondent)

Representation:

Counsel:
C Adamson (Solicitor) (Applicant)
J Brown (Respondents)

Solicitors:
Christopher Adamson (Applicant)
Marsdens Law Group (Respondents)

File Number(s):

2023/00237673

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2023] NSWSC 1876

Date of Decision:

25 July 2023

Before:

Ierace J

File Number(s):

2021/221464

JUDGMENT

1. THE COURT: Before the Court as a matter of urgency on 26 July 2023 was an application by summons filed that day by the applicant (Ms Jacqueline Maclean) seeking leave to appeal from orders made by Ierace J sitting as Duty Judge in the Common Law Division the previous day, dismissing the applicant’s motion for an urgent interim stay of the enforcement of a writ of possession (see Brylewski v Maclean [2023] NSWSC 876).

2. The underlying dispute between the parties to this proceeding relates to the estate of the late Emil Radecki (the deceased) and the continued occupation by the deceased’s widow (Ms 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 (and remain), the registered proprietors of a half interest as tenants in common with the deceased.

3. The background to that dispute is set out in an earlier decision of this Court (Maclean v Brylewski [2023] NSWCA 128) and will not here be repeated save as is necessary on the present application.

4. The reason for the urgency was that the writ of possession in respect of the Property was to be executed at around 9am on 27 July 2023. The Court was constituted as a bench of two to hear the leave application pursuant to direction made by the Chief Justice.

5. The application was first foreshadowed to the Registrar of the Court of Appeal during the morning of 26 July 2023 and directions were then made for the urgent listing of the summons for leave to appeal. Although a notice of motion had been…