Maclean v Brylewski [2023] NSWCA 173

Maclean v Brylewski [2023] NSWCA 173

Leave to appeal was refused because Ms Maclean did not demonstrate that it was reasonably arguable that the primary judge made House v The King error in refusing to stay execution of the writ of possession. The possession order had already been made, the appeal from it had been dismissed, the pending Equity Division motions did not show an entitlement to exclusive possession or a basis for staying enforcement, the slip-rule correction was obvious and appropriately made, and the primary judge had considered the asserted hardship even if he gave it less weight than Ms Maclean sought.

Jurisdiction
Australia
Judgment Date
28 July 2023
Procedural Posture
Application for Leave to Appeal / Application for Leave to Appeal From Refusal of Urgent Interim Stay of Enforcement of Writ of Possession
Outcome
Application for leave to appeal refused with costs.
Legal Topics
['leave to Appeal' 'stay of Execution' 'writ of Possession' 'slip Rule' 'exercise of Discretion' 'house V the King Error' 'hardship' 'vacant Possession']
['appeals' 'civil Procedure' 'property Law' 'succession and Probate'] ['leave to Appeal' 'stay of Execution' 'writ of Possession' 'slip Rule' 'exercise of Discretion' 'house V the King Error' 'hardship' 'vacant Possession']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal / Application for Leave to Appeal From Refusal of Urgent Interim Stay of Enforcement of Writ of Possession

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the primary judge's refusal to stay execution of a writ of possession." 'Whether the pending Probate proceedings and Succession Act proceedings warranted a stay of enforcement of the writ of possession.' 'Whether correction of the orders under the slip rule, and delay in making that correction, disclosed error affecting the writ of possession.' 'Whether the primary judge failed to take sufficient account of hardship to Ms Maclean.' 'Whether the primary judge made error of the kind identified in House v The King in exercising the discretion not to grant a stay.']

Ratio Decidendi

Leave to appeal was refused because Ms Maclean did not demonstrate that it was reasonably arguable that the primary judge made House v The King error in refusing to stay execution of the writ of possession. The possession order had already been made, the appeal from it had been dismissed, the pending Equity Division motions did not show an entitlement to exclusive possession or a basis for staying enforcement, the slip-rule correction was obvious and appropriately made, and the primary judge had considered the asserted hardship even if he gave it less weight than Ms Maclean sought.

Court Disposition

Application for leave to appeal refused with costs.

Orders

  • ['Summons for leave to appeal dismissed with costs.' "Dismissal was conditioned on the filing of a further undertaking by the respondents concerning application of net rent to maintenance and outgoings, holding half the balance on trust by the respondents' solicitors, and payment or accounting for a market-rate...