Brylewski v Maclean [2022] NSWSC 1654

Supreme Court New South Wales

Medium Neutral Citation: Brylewski v Maclean [2022] NSWSC 1654 Hearing dates: 28 November 2022 Date of orders: 6 December 2022 Decision date: 06 December 2022 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Dismiss the notice of motion filed 6 June 2022, amended 20 November 2022, on behalf of the first defendant. (2) Subject to order (3) below, 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 1/SP812, situated at 1/1 Rome Street, Canterbury NSW, 2193, within seven days of the date of compliance by the plaintiffs with order (3). (3) The plaintiffs shall file and serve on the first defendant an undertaking to the Court in writing that on obtaining possession: (i) if the property is let, the period of the lease will be no longer than six months; and (ii) if the property is sold, the net proceeds of sale will be held on trust by the plaintiffs' solicitors, Marsdens Law Group, until further order of a judge of the Court,

(4) The plaintiffs have leave to issue a writ for possession 28 days after providing the written undertaking referred to in order (2), or 28 days after the entry of these orders, whichever is later. (5) Grant leave to the plaintiffs and the first defendant, on three days' notice to the other, to seek a variation of these orders, if not by consent, by order of the Court within 14 days of the entry of the orders. (6) Direct that these orders be entered on Friday, 16 December 2022. Catchwords: LAND LAW – application by registered proprietors for order for possession of residential unit – unit owned by uncle of first plaintiff – plaintiffs became registered proprietors of 50% share pursuant to a transfer under a deed, subject to uncle's right of occupation – other 50% share left to plaintiffs in will – uncle later married first defendant – uncle died in April 2022 –– first defendant continued to occupy property – plaintiffs' entitlement to possession as registered proprietors – defendant challenged transfer of registered title under deed – defendant made claims to estate in other proceedings CIVIL PROCEDURE – proceedings in possession list – first defendant sought leave to represent estate of deceased part owner – defendant proposed cross-claim in defence of possession proceedings – NSW Trustee and Guardian acting for unadministered estate had filed submitting appearance – whether appearance should be set aside – first defendant failed to seek limited grant of letters of administration in probate proceedings – proposed cross-claim duplicative of proceedings in probate list – whether that would constitute abuse of process – no seriously arguable basis to challenge validity of deed – whether possession proceedings should be transferred to probate list Legislation Cited: Probate and Administration Act 1898 (NSW), s 61 Succession Act 2006 (NSW), s 12; Ch 3, Pt 3.2 Uniform Civil Procedure Rules 2005 (NSW), rr 7.8, 7.9, 7.10 Cases Cited: Brylewski v Maclean [2022] NSWSC 1193 In re The Will of FB Gilbert (1946) 46 SR (NSW) 318 Maclean v Brylewski [2022] NSWCA 217 Category: Principal judgment Parties: Maria Brylewski (First Plaintiff) Tadeusz Brylewski (Second Plaintiff) Jacqueline Maclean (First Defendant) David Raynor (Second Defendant) Emil Radecki (Third Defendant) Representation: Counsel: Mr M Bennett (Plaintiffs)