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) Solicitors: Marsdens Law Group (Plaintiffs) Lo Cost Law (First Defendant) L Williams, NSW Trustee and Guardian (Third Defendant) File Number(s): 2021/221464 JUDGMENT 1. The plaintiffs, Maria Brylewski and Tadeusz Brylewski, seek an order for possession of a residential unit in Rome Street, Canterbury (the property), of which they are registered proprietors as tenants in common of a 50% share. The other 50% interest was held by Ms Brylewski's uncle, Emil Radecki, who died on 17 April 2022. That interest forms part of his presently unadministered estate. Key events 1. There was limited evidence read or tendered by the parties on the hearing of the notice of motion and the summons, but much of the relevant history may be gleaned from the pleadings and is not in dispute. 2. On 21 January 2010, the deceased executed a will (2010 Will) appointing the plaintiffs as his executors and trustees and bequeathing the whole of his estate to them in equal shares as tenants in common. At the same time, he appointed them jointly as his enduring guardians. The continuing operation of the 2010 Will turned upon three further events. 3. First, on 23 January 2013, the deceased entered into a deed with the plaintiffs ("2013 Deed") pursuant to which he agreed to transfer a 50% interest in the property to the plaintiffs and to devise the remaining half interest in the property to them (which was the continuing effect of the 2010 Will). The plaintiffs in turn agreed to grant him a right of exclusive occupation for his life, or until such earlier date as he might permanently vacate the land. They also agreed to pay him $100,000 by instalments. The 2013 Deed was given effect in part by a transfer of the one-half share of the property to the plaintiffs, dated 11 February 2013. There was evidence that payments totalling some $109,000 were made by the plaintiffs. 4. Some four years later, on 15 February 2017, a friend of Mr Radecki filed in the NSW Civil and Administrative Tribunal (NCAT) a guardianship application and a financial management application. 5. Secondly, on 9 March 2017, the first defendant, Ms Jacqueline Maclean, married Mr Radecki, who was then 89 years old. (There is an issue as to whether he was then of sufficient mental capacity to marry.) If the marriage were valid, it would have had the effect of revoking the 2010 Will, pursuant to s 12 of the Succession Act 2006 (NSW). (It would not have affected the 2013 Deed.) 6. On 11 April 2017, NCAT made a guardianship order appointing the Public Guardian to make decisions about Mr Radecki's accommodation, welfare and care, and a financial management order giving control of Mr Radecki's estate to the NSW Trustee and Guardian ("NSW Trustee"). 7. In November 2018, on the direction of the Public Guardian, Mr Radecki was transferred to the Canterbury Opal Aged Care Facility ("Opal facility"). On 10 January 2019, the NSW Trustee made an Accommodation decision that Mr Radecki become a permanent resident at the Opal facility. 8. Thirdly, on 18 March 2020, Mr Radecki made a further will ("2020 Will") which, subject to a contingent bequest in favour of a friend, left his whole estate to the first defendant. (There is an issue as to the validity of the 2020 Will.) However, the will did not appoint an executor and, by operation of s 61 of the Probate and Administration Act 1898 (NSW), his estate vested in the NSW Trustee. The NSW Trustee is the second defendant in the possession proceedings and has filed a submitting appearance. Procedural background 1. On 3 August 2021, the plaintiffs commenced these proceedings seeking possession of the property. They pleaded that, pursuant to the 2013 Deed, they were entitled to possession, Mr Radecki having permanently vacated the property. The first and second defendants were Ms Maclean and her partner David Raynor respectively. The third defendant was Mr Radecki, although orders were sought only against the first and second defendants. 2. On 28 September 2021 Ms Maclean filed a defence relying on her status as Mr Radecki's spouse as conferring a licence for her to continue to occupy the premises in which her husband had a half interest. The defence also stated that the marriage rendered unenforceable any obligation of Mr Radecki under the 2013 Deed to leave a will devising his remaining share of the property to the plaintiffs. The defence did not otherwise challenge the validity of the 2013 Deed or the registered title of the plaintiffs. 3. On 9 December 2021, the matter was listed for hearing on 20 April 2022. Subsequent events were summarised by Davies J in an interlocutory judgment delivered on 8 September 2022 as follows: [1] "15 On 7 March 2022 Mr Christopher Adamson, solicitor, commenced to act for the first defendant, and filed a Notice of Change of Solicitor. 16 At the directions hearing on 9 March 2022, Mr Adamson sought leave to file an amended defence and a cross-claim seeking to set aside the deed of 23 January 2013. His client had apparently been trying to persuade the NSW Trustee and Guardian to set aside the deed but the NSW Trustee and Guardian had declined to do so. The NSW Trustee and Guardian had filed a submitting appearance in the proceedings, but a solicitor acting for the NSW Trustee and Guardian had appeared at the various directions hearings. The solicitor acting for the NSW Trustee and Guardian said that the orders sought for possession of the property were not opposed. That was because the Trustee and Guardian wanted to sell the property to pay for the third defendant's nursing home fees." 1. The matter came back before Davies J on 8 April 2022; he stated in his judgment of 8 September: "19 ... I declined to permit the third [? first] defendant to file the proposed amended defence and cross-claim because the orders that were sought and the defence that was put forward assumed that the first defendant had the right to act on behalf of the third defendant who was subject to guardianship and financial management orders in favour of the Public Guardian and the NSW Trustee and Guardian." 1. Mr Radecki died on 17 April and the hearing fixed for 20 April did not proceed. On 6 June 2022, Ms Maclean's solicitor filed a notice of motion seeking the following orders: "1. That pending the determination of these proceedings or further order, Jacqueline Maclean presently the first defendant, and the wife of the late Emil Radecki, be appointed the administrator of the personal estate and receiver of the real estate of Emil Radecki deceased late of unit X number Y Rome Street Canterbury NSW 2193 (pensioner) limited to unit X number Y Rome Street Canterbury NSW 2193 and all the deceased's contents and possessions therein. 2. That pending the determination of these proceedings or further order, Jacqueline Maclean, be appointed the administrator of the estate of Emil Radecki deceased late of unit X number Y Rome Street Canterbury NSW 2193 (pensioner) limited to the following purposes only: (a) to represent the said estate of the late Emil Radecki in defending the claim(s) herein made by the plaintiffs in these proceedings against the third defendant, (b) to represent the third defendant in making a cross-claim in these proceedings against the plaintiffs and to do all things necessary and reasonable to prosecute such cross-claim, and for the above purposes, to obey and carry into execution all judgments or orders or directions of the Court in relation to such defence and cross claim until final judgment herein and until such judgments, orders, or directions are carried into execution and fully satisfied, and with the following powers and functions: (i) to satisfy any judgment or order or direction made herein or to make and perform any compromise or settlement made in respect of these proceedings; (ii) to exercise and enforce against any person all rights of indemnity or contribution which the said deceased or his estate may have in respect or arising out of [or] in connection with these proceedings; (iii) to receive from and to give receipts to persons for any moneys payable in respect of damages and costs or otherwise adjudged to be recoverable in these proceedings or which are agreed to be paid in settlement of these proceedings and to pay the moneys to the persons entitled thereto; and (iv) to do all things necessary or reasonable for the carrying into effect any judgment, order or direction required to be obeyed or performed by the third defendant and any relevant legislation required to be obeyed or performed by the third defendant in respect of these proceedings. Provided that such aforesaid administration shall proceed no further or otherwise than as aforesaid or in any other matter whatsoever. 3. That the name of the third defendant be changed to 'The Estate of Email [sic] Radecki, deceased'. 4. That the notice of appearance of the NSW Trustee and Guardian on behalf of the third defendant be removed from the Court file. 5. That Jacqueline Maclean, as the representative of the estate of the late Emil Radecki, the third defendant, have leave to forthwith file and serve a notice of appearance on behalf of the third defendant. 6. That Jacqueline Maclean, as the representative of the estate of the late Emil Radecki, the third defendant, have leave file and serve an amended defence and cross-claim within 14 days of the date of these orders. 7. That these proceedings be transferred to the Succession List. 8. Such further or other orders as the Court sees just. 9. Costs in the cause." 1. On 26 August 2022, the matter came before Davies J in the possession list, where the plaintiffs sought that the matter be set down for hearing, together with the first defendant's notice of motion of 6 June 2022. As the judge noted, the first defendant had sought the following orders: [2] "1. An order changing the name of the third defendant to 'Emil Radecki, deceased'. 2. An order that the first defendant represent the estate of Emil Radecki deceased pursuant to r 7.8 and r 7.9 Uniform Civil Procedure Rules 2005 (NSW); and 3. That Jacqueline Maclean be added and as the fourth defendant as follows: Jacqueline Maclean as administrator ad litem of the estate of Emil Radecki, deceased. 4. That the notice of motion filed herein on 6 June 2022 be set down for hearing on __." 1. Order (1) was unnecessary as the plaintiffs did not pursue possession proceedings against the deceased. 2. Orders (2) and (3) ran together. They were based upon the premise that Ms Maclean had no right to occupy the property except as the administrator ad litem for the estate or otherwise as a representative of the estate of the deceased. It will be necessary to return to that issue. The reference to rules 7.8 and 7.9 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) was inapt and, at the hearing before me, reliance was placed only on r 7.10. 3. The intention of order (4) was that the hearing of the motion of 6 June be listed separately from and prior to the hearing of the claim in the possession list. 4. Davies J was not inclined to appoint Ms Maclean as the representative of the estate. The judge was aware that there were contested applications for letters of administration in proceedings commenced in the probate list. He declined to make the order for representation on several grounds, including that: (i) Ms Maclean had had an opportunity to seek an order of the kind now sought in the possession proceedings at an earlier hearing in the probate proceedings, but had not done so, (ii) if her claim on behalf of the estate were to fail, the estate would likely be liable for substantial costs, and (iii) he had doubts as to whether the power to appoint a person to represent the estate contained in r 7.10 of the UCPR was appropriately exercised in circumstances where there were contested applications on foot in the probate proceedings. [3] 5. Although unpersuaded that Ms Maclean should be appointed to represent the estate, Davies J was satisfied that the matter, which had been pending in the court since its commencement in August 2021, should be listed for hearing. Rather than dismiss Ms Maclean's notice of motion of 6 June, he directed that it be listed with the claim for hearing on 28 November 2022. He concluded with the following observations: "39 There was the further matter of delay. It is not known when letters of administration will be granted. The plaintiffs commenced these proceedings some 13 months ago. To delay them for an indefinite period until the conclusion of any contested probate proceedings would not be consistent with s 56 of the Civil Procedure Act 2005 (NSW). 40 On the other hand, I was concerned not to circumscribe what the judge hearing the possession proceedings may wish to do as far as the first defendant's notice of motion was concerned. For those reasons I fixed the possession proceedings for hearing and stood the notice of motion over to the same date." 1. Somewhat surprisingly, given the inconclusive interlocutory nature of the outcome of the hearing on 26 August 2022, Ms Maclean immediately filed a summons seeking leave to appeal to the Court of Appeal. Unsurprisingly, the matter was set down for consideration of the leave application alone. However, the application was eventually determined by a bench of three with leave being refused. [4] The majority (Ward P and White JA) refused leave on the entirely conventional ground, long ago identified by Jordan CJ in In re The Will of FB Gilbert, [5] that leave should generally be declined if the challenge was limited to the case management of matters in a Division. [6] 2. The President accepted that "an order for the appointment of a representative for the estate to act in the possession proceedings could have been made without the need for a limited grant made in the probate proceedings". [7] That was seen as an error, but not one warranting the grant of leave to appeal. 3. For my part, I do not read Davies J as having denied that possibility, but having declined, at that stage and on the evidence before him, to make that order in the exercise of the court's discretion. In any event, I accept that there is power to make such an order. However, as the President further noted, it is relevant that no order allowing Ms Maclean to act as administrator ad litem in the possession proceedings had been sought in the probate proceedings. That was undoubtedly a factor which properly influenced Davies J. Since his judgment, three months have elapsed in which such an order could have been sought in the probate proceedings. It was not. 4. The Court of Appeal appears also to have been concerned that the motion of 6 June would be rendered inutile, and its purpose subverted if it were not dealt with before the determination of the claim for possession. That is self-evidently correct and it was dealt with on that basis in this Court. What may not have been fully appreciated was that, unless Ms Maclean was able to challenge the effect of the 2013 Deed on a basis which would render defeasible the registration of the plaintiffs as owners of a 50% interest in the property, and establish an entitlement to possession as a representative of the estate, she had no basis for resisting an order for possession. So much was acknowledged in the course of the proceeding in this Court. 5. The other member of the majority in the Court of Appeal, White JA, noted a number of factors which Ms Maclean would need to establish in order to succeed on the notice of motion. First, and importantly, White JA suggested that she may be required to show that the proposed claim to be made on behalf of the deceased's estate to set aside the 2013 Deed and obtain a retransfer of the registered title is "seriously arguable". [8] 6. Secondly, she must demonstrate why the submitting appearance filed on behalf of Mr Radecki by the NSW Trustee should be set aside. [9] Although that submitting appearance was filed during Mr Radecki's lifetime, the NSW Trustee has maintained that submitting appearance in a different capacity, as the person presently entitled to the estate prior to its administration or a grant of probate. 7. Thirdly, Ms Maclean may need to show why she should be permitted to represent the estate in circumstances where she did not apply for a grant of letters of administration ad litem or pendente lite in the probate proceedings. [10] 8. Fourthly, White JA noted that she would need to establish a basis upon which she could, on behalf of the estate, resist a claim for possession against her. The judge noted that, "[a]t least prima facie, a licence granted to her by Mr Radecki to occupy the property would be terminated by his death". 9. The first three of these matters should be addressed. As to the fourth, in this proceeding, Ms Maclean did not address by evidence or submissions any basis upon which she could claim a right of occupation of the property in answer to the plaintiff's claim for possession. Were the proposed pleadings seriously arguable? 1. It is convenient to identify the nature of the proposed defence and cross-claim. First, an amended defence was provided to the plaintiffs under cover of an email from Ms Maclean's lawyer on Thursday 24 November 2022. The various amendments to the defence relied on two propositions. First, that the plaintiffs had no right to possession "because the deed, and transfer, are invalid being procured in breach of the plaintiffs' fiduciary duty". Her own entitlement to reside in the property was said to be "due to her claim as an 'eligible person' under s 57 of the Succession Act 2006 to have a family provision order in her favour". 2. A proposed cross-claim was also served by email on the plaintiffs' solicitors on Thursday, 24 November 2022. It is not necessary to refer to the orders sought, which are still in draft form and partly incoherent as a result. The cross-claim pleaded facts as to the basis of the alleged invalidity of the deed and the transfer, which have been summarised above. It also pleaded Ms Maclean's marriage to the deceased and referring to the NSW Trustee's interest in the property and a caveat imposed on the title on 31 May 2017, which the cross-claim sought to have removed. There is also a caveat on the title lodged by Opal on 14 January 2022, which the cross-claim seeks to have removed. 3. Finally, the cross-claim alleged Ms Maclean's entitlement as an eligible person to make a claim for interim family provision under the Succession Act that she remain in occupation of the property which is part of the deceased's notional estate. The cross-claim stated that the interim claim to remain in occupation "is being made" in the probate proceedings. 4. As Davies J noted, the case put forward by the solicitor appearing for Ms Maclean did not assert fraud but rather that there would be personal equities which would permit her to set the 2013 Deed aside. The in personam equity apparently relied on by Ms Maclean (who had no knowledge of the dealings between the deceased and the plaintiffs) was based simply upon the fact that at the time the plaintiffs obtained their 50% interest, they held a power of attorney granted by the deceased. There was no suggestion that the power of attorney was exercised, but the proposed pleading referred to the two solicitors involved as, in effect, colluding to present a false statement that Mr Radecki had received independent advice with respect to the transaction. No evidentiary basis was identified to support the allegations. Tendentious allegations of that kind cannot be given significant weight. Somewhat inconsistently with those allegations, Ms Maclean stated in her own affidavit sworn 17 March 2021 that Mr Radecki had sought financial assistance from her but she had been unable to assist him for lack of means. Further, the 2013 Deed was entered into three years after Mr Radecki had made a will, with the assistance of his solicitor, which left the property to the plaintiffs on his death. 5. Not much of the 800-odd pages of the court book was adduced in evidence on the motion. Nor was any material relied upon in support of the motion which provided a plausible factual basis for a challenge to the validity of the 2013 Deed. Lest that may have arisen by omission of Ms Maclean's solicitor, I have given some attention (albeit unassisted by submissions) to other documents in the court book, without identifying any which might support an in personam exception to the rule against indefeasibility. As appears to have been the case before Davies J, at the hearing before me, the solicitor for Ms Maclean disavowed any intention to rely upon fraud. Fraud was not pleaded. 6. In these circumstances, I am not persuaded that there is any seriously arguable basis for Ms Maclean to challenge the validity of the 2013 Deed, were she to obtain an entitlement to represent the estate. However, as noted below there are other powerful reasons why leave to amend to create duplicative proceedings should not be permitted. Setting aside submitting appearance 1. The second difficulty identified by White JA was that it would be necessary to set aside the submitting appearance filed on behalf of Mr Radecki. This was related to the first point addressed above. 2. Ms Maclean's solicitor took issue with the contents of a letter dated 17 April 2019 from an officer of the NSW Trustee addressed to Ms Brylewski stating that the NSW Trustee had sought independent legal advice on the merits of setting aside the 2013 Deed and the transfer of a half-share of the property to the plaintiffs. Acting on the basis of that advice, no steps were taken to challenge either the 2013 Deed or the transfer. The NSW Trustee stated that records had been obtained from Royal Prince Alfred Hospital, including medical records and cognitive assessments of Mr Radecki, a file had been obtained from Mr Radecki's lawyer, Mr David White, and copies of Mr Radecki's bank statements had been obtained. Because the position taken by the NSW Trustee was clearly a considered one, it was no doubt apparent to Ms Maclean's solicitor that it would be necessary to take issue with the basis of the opinion in order to set aside the submitting appearance. There were difficulties in that exercise. 3. First, Ms Maclean did not have a copy of the legal advice, nor did she seek to address the contents of the records obtained by the NSW Trustee. Rather, she made three complaints. One was that the subject matter of the legal advice was "the merits of setting aside the deed, stating that there was a failure to appreciate that there was a transfer only of a half share of Mr Radecki's estate". This complaint was obscure. The letter, addressed to Maria Brylewski, stated that the advice was sought on "the merits of setting aside the deed and the transfer of a half share of the client's property to you and Tadeusz Brylewski, his former attorneys". That description of the effect of the 2013 Deed was brief, but not inaccurate, and it was the appropriate exercise to be undertaken. 4. Secondly, issue was taken with the proposition that the registration of the transfer was immune from adverse claims, except on the basis of fraud and "there is no evidence that the former attorneys engaged in actual fraud, personal dishonesty or moral turpitude". The basis of challenge relied upon by Ms Maclean was that the 2013 Deed was the result of a breach of the fiduciary relationship arising from the appointment of the plaintiffs as the enduring guardian and attorney of the deceased. The NSW Trustee expressly referred to the plaintiffs' role as such. 5. The third basis of objection was that the legal advice had misunderstood the nature of the relationship between Mr Radecki and his niece, describing it as a relationship not within the class involving a presumption of undue influence. Beyond the reference to there being no presumption of undue influence, it may be noted that there was no discussion of a presumption of advancement either. Rather, the letter continued, with respect to evidence of undue influence: "We are advised that the conduct of the solicitor, David White, who advised Mr Radecki was independent, competent and sufficient. It could not be concluded that the former attorneys' conduct was such as would make the Transfer an unconscionable dealing, and no evidence was found of special disadvantage of Mr Radecki at the time of the transfer. We are advised that there is no evidence that the Transfer or Deed was unjust, unfair, unconscionable, harsh or oppressive and there does not appear to have been dishonesty, trickery or predation. Accordingly, Emil Radecki is unlikely to have remedies by reason of the transfer of a half interest in the land by him to the former attorneys." 1. These criticisms were unfounded. Ms Maclean referred to other matters in her own affidavit, including the proposition that the transfer was at a marked undervalue, and that there was evidence that the money had not in fact been paid to the deceased, although payments had been made to the NSW Trustee, no doubt on account of expenses incurred in providing care for Mr Radecki. These assertions, in the absence of any clear pleading or evidential basis, are unpersuasive in establishing breach of fiduciary duty in relation to the 2013 Deed. In short, no reasonable prospect has been identified of any basis upon which the submitting appearance of the NSW Trustee should be set aside. The submitting appearance was based upon a rejection of the proposition that the estate should incur costs in precisely the exercise which Ms Maclean now seeks to undertake on its behalf. The letter from the NSW Trustee, which was in fact tendered by Ms Maclean, provided indirect support for the view that the action sought to be taken on behalf of the estate by Ms Maclean has no reasonable prospects of success. Failure to seek an order in probate proceedings 1. The third point raised by White JA should be addressed: no explanation or evidence has been provided as to why no application was made before Hallen J for a limited grant of letters of administration. Ms Maclean was on notice: Davies J had referred to the failure of Ms Maclean to seek an order permitting her to represent the estate from the judge handling the probate proceedings; White JA had also noted that that was a matter requiring explanation. As has been noted, Ms Maclean had not done so before applying to Davies J, she did not do so before the hearing in the Court of Appeal, and she has not done so prior to the listing in this Court of the possession proceedings. 2. That factor alone is by no means decisive, but it demonstrates the potential for dual proceedings to lead to inconsistent orders and the potential for a party to manipulate the separate proceedings. Such a concern gives concrete grounds for avoiding the abuse of process resulting from permitting the commencement of duplicative proceedings and thus militates against permitting the filing of the amended defence and cross-claim in the possession proceedings. Proposed transfer to the probate list 1. Order (7) in the Amended Notice of Motion handed up in court sought that "these proceedings be transferred to the succession list". The purpose of that order was, presumably, to allow the proceedings to be heard together with the probate proceedings, presently pending in the Equity Division, which include a claim for provision out of the deceased's notional estate under Ch 3, Pt 3.2 of the Succession Act. It would be inappropriate to allow both substantive claims to proceed separately in two Divisions of the court. 2. A grant of leave to allow the amended defence and amended cross-claim to be filed in these proceedings would effectively result in there being two sets of proceedings in the Court raising the same issues. That would constitute an abuse of process. To grant that leave would be a mistaken use of the powers of amendment conferred on the court and would not advance the just, quick and cheap resolution of the real issues. Accordingly, those orders in the notice of motion seeking that leave, or consequential upon it, should be refused for that reason alone. 3. Davies J noted a view that if Ms Maclean wished to challenge the validity of the 2013 Deed on behalf of the estate, that challenge should be made in separate proceedings, the issues raised by such a challenge being unrelated to any issue arising in the possession proceedings. [11] There were observations in the Court of Appeal that that course was by no means necessary. However, I do not read the proposition that the challenge "should" be made in separate proceedings as indicating that it could only be made in separate proceedings: in fact, it already was raised in separate proceedings and that is where it should properly be resolved. Further, Davies J's observation followed the statement that "[w]here the plaintiffs are registered proprietors of the land, ordinarily it would be necessary for the estate to show that they had become registered by fraud". [12] Fraud would need to be pleaded, and it was not. 4. White JA noted that Ms Maclean had a claim for a family provision order under Ch 3 of the Succession Act. For present purposes, the issue is whether a family provision order would include an order that she remain in the property to the exclusion of the registered proprietors thereby obtaining a life interest in the whole of the deceased's estate. No doubt the Succession Act claim cannot be dismissed as wholly without substance. However, to the extent that it is based on the validity of the marriage, there are circumstances which raise real doubts as to the capacity of Mr Radecki to participate in such a transaction. As Davies J noted, there were contested proceedings in NCAT resulting in orders which cast doubt upon her role as a carer, and appointed the Public Guardian to make decisions as to his care and the NSW Trustee to manage his financial affairs. In so far as Ms Maclean's claims relied upon the 2020 Will, there were again plausible doubts as to the capacity of Mr Radecki to make a valid will. 5. It was not disputed that Ms Maclean and her friend, David Raynor (the second defendant in the possession proceedings), own a property in Katoomba. There was no evidence that Ms Maclean's needs extend to accommodation. It follows that, such prospects as she may have in the probate proceedings would be satisfied by an order for payment of money out of the estate. Further, there is evidence that there were substantial debts outstanding at the date of the deceased's death, apparently arising out of his medical expenses and stay in supported accommodation at the Opal facility. Ms Maclean's solicitor suggested the amount in issue might be between $50,000 and $60,000, although the Court was not taken to evidence as to the amount. Ms Maclean submitted that any outstanding debts could be met by mortgaging the property, but there was no evidence as to the likelihood of her doing that. 6. I conclude that the prospects of her obtaining a family provision order are uncertain; the prospects of such an order providing for possession of the property to the exclusion of the plaintiffs as the registered proprietors are remote. 7. Nevertheless, there remains a question as to whether the possession proceedings, in their present form, should be transferred to the Equity Division to be heard with the proceedings in the probate list. Such an order would, in effect, amount to a stay of the possession proceedings until the probate and Succession Act issues had been resolved. If such a stay would be inappropriate, these proceedings should not be transferred to the Equity Division. In my view, a stay would be inappropriate. The plaintiffs are the registered proprietors of a 50% interest in the property. Possession by the plaintiffs is not resisted by the party in which, by statute, the other 50% interest in the property is vested. The order is resisted only by Ms Maclean who presently has no legal entitlement to occupation good against the registered proprietors. Accordingly, the plaintiffs are entitled to an order for vacant possession as against Ms Maclean. 8. The final issue is whether, given the nature of the proceedings presently pending in the Equity Division, steps should be taken to ensure that access to the property, or the net funds available from sale if the property be sold, should be retained pending further orders in those proceedings. The plaintiffs and the NSW Trustee wish to sell the property. For reasons explained above, the prospects of Ms Maclean obtaining an order permitting her to occupy the property are remote. The possibility of her obtaining a share of the estate is less remote. The order for vacant possession should be conditioned to ensure that, if sold, the net proceeds of sale should be retained pending the resolution of the proceedings in the Equity Division, or further order of a judge in those proceedings. I note, however, that neither party proffered terms for such conditions. If some variation of the orders set out below is to be made, those orders may be varied by consent or otherwise by an order of the Court. Given the time of year, I propose to extend the period within which those orders may be varied by directing that they not be entered until 16 December 2022. That will allow an opportunity for the parties to consider whether any variation is required and cannot be agreed, which, if not made before the Christmas break, can be made to a vacation duty judge. Conclusions in relation to the possession proceedings 1. For the reasons explained above, there are no reasonable prospects demonstrated on the evidence before this Court of having the registered title of the plaintiffs set aside. The plaintiffs' entitlement to possession based on that title is therefore a prima facie entitlement in these proceedings in favour of the relief sought. 2. It is also apparent that Ms Maclean has no immediate right to occupation as against the plaintiffs. In my view, the appropriate course is to grant an order for possession in favour of the plaintiffs. The real issue is whether that order should be made conditional. The plaintiffs expressed an intention to prepare the property for sale, sell the property and pay the proceeds into their solicitor's trust account, pending determination of the probate proceedings. There is much to recommend that process, but it should be the subject of formal undertakings to the Court. 3. The alternative course is to grant possession to the plaintiffs, but condition that possession on a requirement to maintain the property in their control pending determination of the probate proceedings. That course gives rise to a number of practical difficulties. First, there may need to be financing obtained against the security of the property to pay outstanding debts of the estate and to pay for repairs, maintenance and ongoing expenses (including rates) relating to the property. To accommodate those requirements, the plaintiffs might reasonably seek to let the property and obtain a rental income from it. 4. As neither party proposed such a condition, given the practical difficulties, I do not propose to make such an order. Rather, I propose to make an order conditioning the plaintiffs' possession upon holding the property for a brief period (which will no doubt be necessary in any event to prepare it for sale) and subject to the undertakings already noted. I would also give leave to the parties to approach the Court for further orders or a variation of those orders if required. Orders 1. Orders (1) and (2) sought in the notice of motion filed on behalf of Ms Maclean each related to her appointment as "the administrator of the estate of Emil Radecki deceased" limited to the residential unit. Order (3) sought that the name of the third defendant be changed to "the estate of Email(sic) Radecki deceased". (The typographical error was pointed out by Davies J but not corrected.) Order (6) sought leave to file and serve the amended defence and cross-claim as representative of the estate. 2. No order is currently sought against Emil Radecki as the third defendant. Accordingly, the only purpose in changing the name of the third defendant is to allow the estate to make a cross-claim in these proceedings. (The defence no longer has any purpose.) As explained above, the matters raised in the cross-claim are presently the subject of proceedings in the succession list. Orders (1), (2), (3) and (6) should be refused. 3. Further, orders (4) and (5), requiring removal of the notice of appearance filed for the NSW Trustee and granting leave to file a notice of appearance by Ms Maclean on behalf of the third defendant should not be made. For reasons given above, order (7), seeking transfer to the succession list, should not be made. 4. The amendment proposed to the notice of motion at the commencement of the hearing sought to add order (1A) which was procedural, seeking to permit Ms Maclean to represent the third defendant pursuant to r 7.10(2)(b) of the UCPR. The reference to the relevant rule was appropriate, but as the substantive orders will not be made, order (1A) is otiose. It follows that the notice of motion should be dismissed. 5. Accordingly, the Court makes the following orders: (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: 1. if the property is let, the period of the lease will be no longer than six months; and 2. 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. ********** Endnotes 1. Brylewski v Maclean [2022] NSWSC 1193 ("Brylewski"). 2. Brylewski at [32]. 3. Brylewski at [30]. 4. Maclean v Brylewski [2022] NSWCA 217 ("Maclean"). 5. (1946) 46 SR (NSW) 318. 6. Maclean at [4], [10], [31]. 7. Maclean at [5]. 8. Maclean at [31]. 9. Maclean at [33]. 10. Maclean at [34]. 11. Brylewski at [37]. 12. Brylewski at [36]. Amendments 06 December 2022 - Changes to representation on cover page; par 8 change the words in 1st line from "NSW Trustee" to "Public Guardian"; typographical errors. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2022