Brylewski v Maclean [2023] NSWSC 876

Brylewski v Maclean [2023] NSWSC 876

The application for interim stay is dismissed because the defendants' rights to the property were already determined in previous exhaustive litigation, the Registrar properly applied the slip rule to correct an order, and the evidence of hardship was insufficient to warrant a stay.

Parties
First Plaintiff/first Respondent: Maria Brylewski; Second Plaintiff/second Respondent: Tadeusz Brylewski; First Defendant/first Applicant: Jacqueline Maclean; Second Defendant/second Applicant: David Raynor; Third Defendant/third Applicant: Emil Radecki
Jurisdiction
Australia
Judgment Date
25 July 2023
Procedural Posture
Civil Procedure – Application for Interim Stay / Interlocutory Application, Ex Tempore Decision
Outcome
Application (amended notice of motion) dismissed. Costs ordered against the applicant.
Legal Topics
Interim Stay, Writ of Possession, Slip Rule, Probate Proceedings
Civil Procedure Interim Stay Writ of Possession Slip Rule Probate Proceedings

Case Brief

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Parties

Maria Brylewski

First Plaintiff/first Respondent

Tadeusz Brylewski

Second Plaintiff/second Respondent

Jacqueline Maclean

First Defendant/first Applicant

David Raynor

Second Defendant/second Applicant

Emil Radecki

Third Defendant/third Applicant

Procedural Posture

Civil Procedure – Application for Interim Stay / Interlocutory Application, Ex Tempore Decision

Legal Issues

  1. 1 Whether interim stay of writ of possession should be granted
  2. 2 Whether Registrar's correction of order under the slip rule was valid
  3. 3 Whether execution of writ would occasion hardship warranting a stay

Ratio Decidendi

The application for interim stay is dismissed because the defendants' rights to the property were already determined in previous exhaustive litigation, the Registrar properly applied the slip rule to correct an order, and the evidence of hardship was insufficient to warrant a stay.

Court Disposition

Application (amended notice of motion) dismissed. Costs ordered against the applicant.

Orders

  • The amended notice of motion is dismissed.
  • The applicant to pay the respondent's costs of today's proceedings.