Brylewski v Maclean [2022] NSWSC 1654

Brylewski v Maclean [2022] NSWSC 1654

The first defendant demonstrated no seriously arguable or evidentially supported basis to challenge the 2013 Deed or the plaintiffs' registered 50% title, no reasonable prospect of setting aside the NSW Trustee and Guardian's submitting appearance, and no adequate reason for failing to seek a limited grant in the probate proceedings. Allowing her proposed amended defence and cross-claim would duplicate issues already raised in succession proceedings and constitute an abuse of process. The plaintiffs' registered title gave them a prima facie entitlement to possession, and the first defendant had no present legal entitlement to occupy as against them, although possession was conditioned by...

Jurisdiction
Australia
Judgment Date
06 December 2022
Procedural Posture
Proceedings in the Possession List Seeking Possession of Residential Property, With a Notice of Motion by the First Defendant Seeking Appointment to Represent the Estate and Related Procedural Orders. / Hearing of the First Defendant's Notice of Motion Filed 6 June 2022, Amended 20 November 2022, and the Plaintiffs' Claim for Possession.
Outcome
The first defendant's notice of motion was dismissed and the plaintiffs were granted conditional orders for vacant possession.
Legal Topics
['possession by Registered Proprietors' 'indefeasibility and in Personam Claims' 'representation of Deceased Estate in Proceedings' 'submitting Appearance' 'abuse of Process by Duplicative Proceedings' 'family Provision Claim' 'transfer to Succession List']
['land Law' 'civil Procedure' 'succession and Probate'] ['possession by Registered Proprietors' 'indefeasibility and in Personam Claims' 'representation of Deceased Estate in Proceedings' 'submitting Appearance' 'abuse of Process by Duplicative Proceedings' 'family Provision Claim' 'transfer to Succession List']

Case Brief

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Procedural Posture

Proceedings in the Possession List Seeking Possession of Residential Property, With a Notice of Motion by the First Defendant Seeking Appointment to Represent the Estate and Related Procedural Orders. / Hearing of the First Defendant's Notice of Motion Filed 6 June 2022, Amended 20 November 2022, and the Plaintiffs' Claim for Possession.

Legal Issues

  1. 1 ['Whether the first defendant should be appointed or permitted to represent the estate of Emil Radecki in the possession proceedings.' 'Whether the first defendant should have leave to file an amended defence and cross-claim challenging the 2013 Deed and transfer of a 50% interest in the property to the plaintiffs.' 'Whether the submitting appearance filed by the NSW Trustee and Guardian should be set aside.' 'Whether the possession proceedings should be transferred to the succession list or stayed pending probate and Succession Act proceedings.' 'Whether the plaintiffs, as registered proprietors of a 50% interest, were entitled to vacant possession against the first defendant and second defendant.']

Ratio Decidendi

The first defendant demonstrated no seriously arguable or evidentially supported basis to challenge the 2013 Deed or the plaintiffs' registered 50% title, no reasonable prospect of setting aside the NSW Trustee and Guardian's submitting appearance, and no adequate reason for failing to seek a limited grant in the probate proceedings. Allowing her proposed amended defence and cross-claim would duplicate issues already raised in succession proceedings and constitute an abuse of process. The plaintiffs' registered title gave them a prima facie entitlement to possession, and the first defendant had no present legal entitlement to occupy as against them, although possession was conditioned by...

Court Disposition

The first defendant's notice of motion was dismissed and the plaintiffs were granted conditional orders for vacant possession.

Orders

  • ['Dismiss the notice of motion filed 6 June 2022, amended 20 November 2022, on behalf of the first defendant.' 'Subject to order (3), order that the first defendant and, to the extent that he is in occupation, the second defendant, deliver to the plaintiffs vacant possession of the property described in title folio...