Brylewski v Maclean [2022] NSWSC 1193

Supreme Court New South Wales

Medium Neutral Citation: Brylewski v Maclean [2022] NSWSC 1193 Hearing dates: 26 August 2022 Date of orders: 26 August 2022 Decision date: 08 September 2022 Jurisdiction: Common Law Before: Davies J Decision: 1. Set down for hearing before a judge of the Court on 28 November 2022 with an estimate of one day. 2. 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. Catchwords: CIVIL PROCEDURE – Possession List – deed entered into by plaintiffs and third defendant transferring half interest to plaintiffs – no challenge to validity of deed until proceedings commenced 8 years later – first defendant wife of third defendant and occupier of property – where no orders sought against third defendant - third defendant died after proceedings commenced – first defendant sought to be appointed to represent deceased's estate – rr 7.8., 7.9, 7.10 Uniform Civil Procedure Rules – where third defendant was subject to guardianship and financial management orders in favour of Public Guardian and NSW Trustee and Guardian – where Court had been informed there was to be contested application for letters of administration – inappropriate to appoint first defendant as representative of the estate until probate proceedings resolved - where challenge to deed unrelated to possession proceedings – further delay of possession proceedings not consistent with s 56 Civil Procedure Act Legislation Cited: Civil Procedure Act 2005 (NSW) s 56 Succession Act 2006 (NSW) s 12 Uniform Civil Procedure Rules 2005 (NSW) rr 7.8, 7.9, 7.10 Cases Cited: Government Insurance Office v Johnson [1981] 2 NSWLR 617 Hanshaw v National Australia Bank Ltd [2012] NSWCA 100; (2012) 264 FLR 294 Stedman v O'Hearn [2006] NSWSC 1122; Texts Cited: Nil Category: Procedural rulings Parties: Maria Brylewski (First Plaintiff) Tadeusz Brylewski (Second Plaintiff) Jacqueline Maclean (First Defendant) David Raynor (Second Defendant) Emil Radecki (Third Defendant) Representation: Counsel: M Bennett (Plaintiffs) C Adamson (First Defendant) No appearance (Second Defendant) No appearance (Third Defendant)