Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Maclean v Brylewski [2023] NSWCA 173 Hearing dates: 26 July 2023 Date of orders: 26 July 2023 Decision date: 28 July 2023 Before: Ward P; Simpson AJA Decision: Application for leave to appeal refused with costs. Catchwords: APPEALS – Leave to appeal – Primary judge refused stay of execution of writ of possession Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 7.10, 36.17 Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Brylewksi v Maclean [2022] NSWSC 1654 Brylewksi v Maclean [2023] NSWSC 876 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Clarke v State of New South Wales [2015] NSWCA 27 House v The King (1936) 55 NSWLR 499; [1936] HCA 40 Jaycar Pty Limited v Lombardo [2011] NSWCA 284 Maclean v Brylewksi [2023] NSWCA 128 Category: Principal judgment Parties: Jacqueline Maclean (Applicant) Maria Brylewski (First Respondent) Tadeusz Brylewski (Second Respondent) Representation: Counsel: C Adamson (Solicitor) (Applicant) J Brown (Respondents) Solicitors: Christopher Adamson (Applicant) Marsdens Law Group (Respondents) File Number(s): 2023/00237673 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2023] NSWSC 1876 Date of Decision: 25 July 2023 Before: Ierace J File Number(s): 2021/221464 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. THE COURT: Before the Court as a matter of urgency on 26 July 2023 was an application by summons filed that day by the applicant (Ms Jacqueline Maclean) seeking leave to appeal from orders made by Ierace J sitting as Duty Judge in the Common Law Division the previous day, dismissing the applicant's motion for an urgent interim stay of the enforcement of a writ of possession (see Brylewski v Maclean [2023] NSWSC 876). 2. The underlying dispute between the parties to this proceeding relates to the estate of the late Emil Radecki (the deceased) and the continued occupation by the deceased's widow (Ms Maclean) of a unit in Canterbury (the Property) of which the respondents (Maria and Tadeusz Brylewksi) were, as at the time of the deceased's death (and remain), the registered proprietors of a half interest as tenants in common with the deceased. 3. The background to that dispute is set out in an earlier decision of this Court (Maclean v Brylewski [2023] NSWCA 128) and will not here be repeated save as is necessary on the present application. 4. The reason for the urgency was that the writ of possession in respect of the Property was to be executed at around 9am on 27 July 2023. The Court was constituted as a bench of two to hear the leave application pursuant to direction made by the Chief Justice. 5. The application was first foreshadowed to the Registrar of the Court of Appeal during the morning of 26 July 2023 and directions were then made for the urgent listing of the summons for leave to appeal. Although a notice of motion had been foreshadowed (for a stay pending the hearing of the application for leave to appeal), none was filed. Rather, the matter proceeded on the hearing of the application for leave to appeal at 2.30pm. The primary judge's ex tempore reasons for dismissing Ms Maclean's application for a stay were sent to the parties at 11.10am and made available to this Court shortly before the hearing at 2.30pm. No transcript of the hearing before the primary judge was available to this Court. 6. Ms Maclean was represented on the hearing of the summons for leave to appeal by her solicitor, Mr Adamson, who had appeared on her behalf on the application before the primary judge (and on earlier applications in this Court). 7. Both parties relied on affidavit evidence on the application; and Ms Maclean also sought to rely on further evidence not before the primary judge (which application was refused). After hearing argument on the application, this Court made orders dismissing the summons for leave to appeal with costs (subject to the filing of a written undertaking by the respondents in terms that had been proffered to the Court during the course of argument). The Court indicated that reasons for the decision would be made as soon as practicable. These are those reasons. Background 1. As noted above, the background to the dispute between the parties is set out in the most recent appellate decision in this matter ([2023] NSWCA 128 ), which was handed down on 8 June 2023, that relating to an application for leave to appeal (if leave be necessary, which this Court considered it was) from orders made by Basten AJ on 6 December 2022 (Brylewski v Maclean [2022] NSWSC 1654). His Honour, sitting in the Common Law Division, dismissed an amended notice motion that Ms Maclean had filed in the possession proceedings brought by the present respondents. In that amended notice of motion, Ms Maclean had sought, among other things, an order that, pending the determination of the proceedings, she be appointed administrator of the deceased's estate for the purpose of representing his estate in defending the respondents' claims made in the possession proceedings and in representing him in making a cross-claim against the respondents (i.e., the plaintiffs) in the possession proceedings. 2. Among the orders made by Basten AJ was an order (order 2) to the effect that Ms Maclean deliver to the respondents vacant possession of the Property within seven days of compliance by the respondents with order 3. Order 3 required the respondents to file and serve on Ms Maclean a written undertaking to the Court 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 respondents' solicitors (Marsdens Law Group) until further order of a judge of the Court. His Honour granted leave to the respondents for the issue of a "writ of possession 28 days after providing the written undertaking referred to in order (2) [sic, order (3)], or 28 days after the entry of the orders, whichever was the later" (see order 4). His Honour granted leave to the parties, on three days' notice to the other, to seek a variation of the orders, if not by consent, by order of the Court within 14 days of the entry of the orders (order 5) and directed that the orders be entered on 16 December 2022 (order 6). 3. A written undertaking was duly filed in the Court by the respondents on 12 December 2022, that undertaking departing from the terms of the orders made by Basten AJ, only insofar as it included provision for what was to happen to the net rent if the Property was let, namely that half the net rent would be held on trust by the respondents' solicitors until further order of a judge of the Court. There was no complaint that this addition to the undertaking (which appears to be for the benefit of Ms Maclean) rendered the undertaking non-compliant with the order that had been made by his Honour. 4. Ms Maclean then filed a notice of appeal in this Court, maintaining that she had an appeal as of right, from the whole of Basten AJ's decision. In an amended notice of appeal, Ms Maclean raised multiple grounds of appeal (including allegations as to denial of procedural fairness, apprehended bias, errors in the making of various findings and numerous other perceived errors). As noted in the decision published on 8 June 2023 ([2023] NSWCA 128), Ms Maclean ultimately did not oppose the dismissal of her notice of appeal, that order being made in May 2023 during the course of the hearing; the sole issue remaining to be determined in that proceeding then being one of costs. Ms Maclean was ordered to pay the respondents' costs. 5. Following an application by the respondents, a writ of possession was issued on 15 June 2023. Notice was served on Ms Maclean by the Sheriff's Office by letter dated 19 June 2023 that execution of the writ would occur on 27 July 2023 at 9am and that the eviction would take place at that time (unless the Sheriff's Office was notified of a stay by the Supreme Court) or thereafter without further notice. 6. By notice of motion filed in the Common Law Division of the Supreme Court on 25 July 2023, Ms Maclean sought a variety of orders, including, relevantly, an order for stay of the writ of possession pending further orders of the Supreme Court in related proceedings in the Equity Division thereof. 7. The notice of motion was supported by affidavit of Ms Maclean's solicitor, Mr Christopher Adamson sworn on 21 July 2023. 8. Mr Adamson deposed to the receipt by Ms Maclean of the eviction notice on 20 June 2023 and as to the circumstances in which he did not appreciate until 19 July 2023 that such a notice had been issued (although it was sent to him by Ms Maclean on 21 June 2023 as an attachment to a letter that had been scanned to him). 9. Mr Adamson also deposed to a correction having been made to Basten AJ's orders by the Registrar of the Common Law Division under the "slip rule" (see r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to replace the reference (in order 4) to the "written undertaking referred to in order (2)" with a reference in that order to "the written undertaking referred to in order (3)". Although Ms Maclean here complains that she was not given notice of any application to seek the order made under the slip rule in June 2023, it is obvious on the face of the orders as originally made that there was a typographical error (and Mr Adamson conceded as much in oral submissions on the present application (see AT 13.37-14.08)). This is a paradigm example of circumstances in which the slip rule is appropriately exercised. However, as explained below, Ms Maclean relies on this as one of the matters that she argues was not properly taken into account by Ierace J in refusing the stay of execution of the writ (this amounting, it is said, to House v The King (1936) 55 NSWLR 499; [1936] HCA 40 (House v The King) error), as explained below. 10. Mr Adamson also deposed that Ms Maclean had recently undergone a serious operation, had a serious mental health problem and was therefore unable to work, and is dependent on Centrelink payments. He said that although Ms Maclean is the joint owner of a house in Katoomba, she was unable to reside there because her co-owner, who has been diagnosed with schizophrenia, occupies the house and is potentially violent towards her. Mr Adamson said that Ms Maclean has no alternative accommodation available. Primary judgment 1. In his Honour's ex tempore reasons dismissing that application, Ierace J addressed what he considered in essence to be the three reasons for Ms Maclean's application. 2. First, that a notice of motion had been filed by Ms Maclean on 16 June 2023 seeking orders that it was said would affect the respondents' entitlement to the Property and, in the alternative, a stay of the orders of Basten AJ that allowed the writ of possession. The primary judge noted that although the notice of motion was filed, there was no evidence that it had been served on the respondents and that they denied that it had been served. The primary judge considered that this first basis advanced for a stay was not made out, noting that there had been exhaustive proceedings in which Ms Maclean was a party, testing what rights she may have to possession of the Property and saying that recent steps to enliven that issue had not been diligently prosecuted on her behalf. 3. Second, that the Registrar was not entitled to "perfect" (query whether this was meant to be "correct") the orders made by Basten AJ. As to this, his Honour was satisfied that the correction made by the Registrar was appropriately made and said that there could be no doubt as to what was intended by Basten AJ and that the correction was an obvious one. The primary judge noted that Ms Maclean did not advance the error on the appeal to this Court from Basten AJ's decision. 4. Third, that the execution of the writ would occasion hardship to Ms Maclean since she had no alternative place of residence, no savings and the medical issues referred to above. His Honour noted that the only evidence of hardship was the passage (which his Honour there set out) from Mr Adamson's affidavit in which Mr Adamson deposed to his instructions that, if the warrant was enforced at this time, Ms Maclean would be homeless. The primary judge noted that there was no evidence adduced by Ms Maclean as to the claims made in this part of Mr Adamson's affidavit nor was there elaboration of the nature of the operation or post-operation condition to which Mr Adamson had deposed. The primary judge also noted that it was conceded that Ms Maclean had an interest as a joint tenant in an alternative property adding reference to "the co-owner being her partner" and also the second defendant in the proceedings before Basten AJ. 5. The primary judge was not satisfied that Ms Maclean would be disadvantaged by the execution of the writ of possession, noting that Ms Maclean had been on notice that the writ would be sought and executed since December 2022, subject to an appeal that was dismissed in May 2023 (the date of the order dismissing the appeal in this Court); and that Ms Maclean was informed of the issue of the writ and had an interest in an alternative place of residence. Accordingly, his Honour dismissed the amended notice of motion with costs. Application for leave to appeal 1. The summons seeking leave to appeal, seeks orders, inter alia, that the judgment of Ierace J be set aside; that there be a stay of enforcement of the writ of possession pending the determination of two sets of proceedings in the Equity Division (Probate proceedings, 2022/0020990; and Succession Act proceedings, 2022/00250530); and that a stay be granted "on compassionate grounds". The sole ground of appeal appearing in the summons is: Supreme Court of NSW Probate proceedings case number 2022/0020990 and Succession Act 2008 [sic] [presumably 2006 proceedings] case number [2022]/00250530 have issues which are so closely related as to have warranted a stay of enforcement of the said writ. 1. It is not disputed that leave to appeal is necessary. In determining whether leave to appeal should be granted, something more must be demonstrated than that the primary judge's decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see Clarke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[34]). Moreover, where, as here, the decision the subject of the application for leave to appeal involves an exercise of discretion, what is required to be demonstrated is error in the House v The King sense. 2. The sole appeal ground identified in the summons does no more than express a conclusion; it does not identify any error of law or principle nor any misapprehension of the facts such as to indicate an error of the requisite House v The King kind. In oral submissions, Mr Adamson identified the errors as being the following. 3. First, that the primary judge did not give adequate consideration to the evidence before him of a notice of motion filed and served on 24 March 2023 in the Probate proceedings. Regrettably, all that was included in the exhibit to Mr Adamson's affidavit was the coversheet for that notice of motion. However, Mr Adamson informed the Court that the relief there sought included that Ms Maclean be appointed under r 7.10(1)(b) of the UCPR to represent the estate of the deceased; and various procedural orders in relation to the case management of the matter in the Probate proceedings. 4. Mr Adamson explained that the relevance of those proceedings was that they were "joined at the hip" with the possession proceedings. Mr Adamson complains that the deceased's estate is currently not represented in the proceedings (and was not represented in the proceeding before Basten AJ); and says that, in the event that Ms Maclean becomes the representative of the estate, she would be entitled to control at least half of the estate (by which it appears Mr Adamson means at least half of the Property, since the estate is apparently comprised largely, if not wholly, by the Property and Ms Maclean is the sole beneficiary under the deceased's last Will, the validity of which is apparently in dispute). 5. Although the primary judge does not refer to the 24 March 2023 notice of motion, his Honour did identify as the first reason being put by Ms Maclean in support of the stay, the fact that a notice of motion had been filed on 16 June 2023 (in the Probate proceeding); and considered that this was seeking to enliven (or re-agitate) matters already dealt with in the "exhaustive proceedings" to which his Honour referred. The notice of motion filed on 16 June 2023 itself referred in the orders sought to the 24 March 2023 notice of motion (seeking an order that it be heard concurrently with the June notice of motion) and sought, among other things, an order that Ms Maclean be granted administration in respect of the estate "for the purpose of permitting [Ms Maclean's] application for an interim family provision order, a final family provision order, to be heard, and a notional estate order to be made in these proceedings". Pausing here, insofar as Ms Maclean is seeking relief of this kind this might conflict with her application to be appointed as a representative of the estate (as apparently contemplated by the 24 March 2023 notice of motion) since there might be potential for conflict between her duties in the administration of the estate and the personal interests she was seeking to promote. That will ultimately be for consideration when Ms Maclean's applications fall to be determined but we simply note that there is some seeming inconsistency in the position Ms Maclean is seeking to advance. 6. In any event, there is no error in the primary judge's observation that the respondents' claim for vacant possession of the Property has been determined (and the appeal from the orders in relation thereto was in effect abandoned on the basis that it had only been brought to forestall an issue estoppel arising and the respondents disavowed any reliance on issue estoppel). Of course, what remains to be determined are the claims made in the respective Equity Division proceedings. However, unless Ms Maclean is successful in setting aside a 2013 Deed (see as defined in Basten AJ's judgment) pursuant to which the respondents acquired their interest in the Property, it is difficult to see how Ms Maclean could insist on exclusive possession of the Property (as she apparently seeks to do). Be that as it may, the simple point is that it is not clear how it is said that a failure to give adequate consideration to the fact that a notice of motion in the Probate proceedings had not yet been determined (even assuming the text of the relief sought had been before the primary judge, unlike its absence before this Court) would warrant a grant of leave to appeal from the exercise of discretion not to grant a stay of execution of the writ of possession. 7. The second error identified by Mr Adamson (as we understand it, though it was not wholly clear from the oral submissions) relates to the correction of the obvious error in the orders made by Basten AJ. The argument appears to be that, because there was no application for that error to be corrected in the period from 6 December 2022 to 15 June 2023, Ms Maclean (and/or Mr Adamson) formed the view that the respondents would not seek to have a writ of possession issued and enforced; and that this delay (said to be significant) prejudiced Ms Maclean. Mr Adamson contended that the primary judge did not give adequate consideration to that issue; and complaint was made that his Honour had asserted that it was Ms Maclean's "problem" with no consideration of the respondents' "role in all of this" (see AT 12.45-47). More than once, Mr Adamson made reference to the number of lawyers representing the respondents as against him as a sole practitioner representing Ms Maclean (see, for example, AT 13.02). 8. The logic of this submission is not easy to follow. The primary judge certainly had regard to the argument raised for Ms Maclean as to the correction of the orders (albeit apparently understanding this to be a complaint that the Registrar was not entitled to perfect those orders). His Honour did not expressly (or even implicitly) attribute any fault (or "problem") with this to Ms Maclean – simply noting that the issue had not been raised in the multiple grounds of appeal (none of which ultimately being pressed) from Basten AJ's decision. 9. The error in relation to the orders (as already noted) was obvious on the face of the orders. There was no error in the primary judge's conclusion that the correction was appropriately made. Although reference was made to there being no complaint in the (abandoned) notice of appeal about the correction of the orders in the appeal grounds, nothing turned on this in his Honour's ultimate determination. Indeed, there could have been no complaint raised in that earlier notice of appeal as to this issue since the correction of the orders by the Registrar seems to have post-dated the dismissal of the appeal itself. 10. There was no evidence to support the assertion that Ms Maclean was in any way prejudiced by the fact that the slip in the orders was not corrected until June 2023; nor that there was any mistaken understanding on the part of Ms Maclean or Mr Adamson that this delay meant that the respondents did not intend to enforce the orders in their favour for the issue and execution of a writ of possession. Even if there was some such understanding arising from the delay in issue of a writ of possession, there is nothing to suggest that the respondents were aware of, or encouraged, any such misunderstanding. One would have thought that the more logical explanation for delay in incurring the cost of issue and enforcement of the writ of possession was the fact that Ms Maclean had brought proceedings in this Court seeking to appeal from Basten AJ's orders. 11. Further, the suggestion that the existence of an error in the orders made in December 2022 (and its non-correction until June 2023) caused serious delay to the prejudice of Ms Maclean is not logical. Mr Adamson made clear that he does not dispute that the correction came within the slip rule; rather, his complaint is as to the delay in using the slip rule (which he says should have been done before or during the appeal). It appears that Mr Adamson is suggesting that some different course might have been taken by Ms Maclean on the appeal (i.e., the appeal that was ultimately not pursued and which was dismissed without opposition by Ms Maclean) had that been the case. That reeks of hindsight speculation. If (which is by no means clear) Mr Adamson was aware of the error and chose not to draw it to the respondents' attention, that of itself might speak against him being able to rely on the delay as he now seeks to do; but in any event his complaint here seems to be that the primary judge did not even ask the respondents why they had delayed for that long. It was not clear to us whether this submission was directed to delay in correcting the error in the orders or more generally to the delay in seeking to enforce the order for possession; but in either case, the suggestion that the primary judge erred in not seeking an explanation for this (or not interrogating the respondents as to their "role in all of this") is not tenable. 12. The real complaint in this regard seems to be the assertion that Ms Maclean (and Mr Adamson) thought that the respondents were not going to press for possession of the Property. If so, such an assumption can hardly be sheeted home to the respondents when the delay in enforcement would be readily explicable by the fact that in the intervening period Ms Maclean was pursuing an appeal in this Court. 13. Mr Adamson next identified what he said was the "main problem" as being that the orders sought by Ms Maclean in the Probate proceedings had not been dealt with (although he appears to have accepted that the 16 June 2023 notice of motion seeking interim family provision orders was not served on the respondents until 26 July 2023). If this be a reference to the 24 March 2023 notice of motion, we have considered this above. If this be a reference to the 16 June 2023 notice of motion (which had not even been served on the respondents at the time the application for a stay was made to the primary judge), it should be emphasised that the applications sought to be brought in the Probate proceedings were not before the primary judge for determination (as opposed to the fact that a prospective application for orders in the Probate proceedings was raised as part of the material put forward for Ms Maclean as warranting a stay). (In submissions in reply, Mr Adamson also raised as House v The King error the fact that the primary judge had not adverted to issues such as how any sale or lease of the Property could proceed in the absence of a representative being appointed to the estate. Again, without the transcript of the proceeding before the primary judge it is not clear precisely what submission was put that it is now suggested should have caused his Honour to consider such issues. In any event, that problem (if it be a problem) does not overcome the fact that the order for possession has already been made and the appeal therefrom has already been dismissed. 14. The complaint here made against the primary judge has no foundation. If the complaint properly understood is that the primary judge did not take into account that the deceased's estate was not yet represented (and was not represented in the proceedings before Basten AJ) (and without seeing the transcript it is difficult to know if that was how the submission was put to his Honour), then that is a matter that should have been pressed on the appeal that was effectively abandoned by Ms Maclean; and in any event will fall to be determined in the Equity Division proceedings. It does not change the fact that the respondents currently (on the basis of Basten AJ's orders) have a right to vacant possession of the Property. If the complaint is that the primary judge declined to grant a stay in light of the pending motions in the Equity Division proceedings, we have already addressed this. 15. As to the matters about which the primary judge observed that Ms Maclean had not herself adduced evidence, there was an application by Mr Adamson for leave to read an affidavit from Ms Maclean (deposing among other things to the nature of her medical condition and asserting that the second defendant in the possession proceedings, with whom she is a co-owner of the Katoomba property, is not her partner and that the title to that property being in joint names was due to an error by a solicitor). As noted above, this affidavit was rejected, the respondents objecting that it was not fresh evidence as such and that, had the evidence been adduced before the primary judge, they would have sought to cross-examine Ms Maclean. Those objections were well-founded. The reason suggested for an inability to adduce such evidence before the primary judge was that it was difficult to obtain instructions (and there was a suggestion that this was because Ms Maclean was at that stage preparing to vacate the Property). In any event, nothing turns on this. 16. Even if the primary judge was mistaken as to whether Ms Maclean's co-owner of the Katoomba property is (or was at one time) Ms Maclean's partner (as opposed to a long time friend), the evidence before his Honour (in Mr Adamson's own affidavit read on the application) was that Ms Maclean had an interest in an alternative property (at Katoomba) albeit that on Mr Adamson's instructions she was concerned about moving in to live in that property. 17. Insofar as Mr Adamson complains at the reference to a lack of evidence of Ms Maclean's medical condition (sought to be remedied by her belated affidavit), it is clear that the primary judge took into account the matters to which Mr Adamson had deposed even if he did not accord them as much weight as Mr Adamson contends they bear. It may also be noted that, in reply submissions, Mr Adamson informed the Court that Ms Maclean now has casual employment two days a week (and suggested that she would be able to make payments towards outgoings or the like in respect of the Property) which is inconsistent with his earlier affidavit evidence as to Ms Maclean's financial circumstances and suggests that some caution should be placed on the various assertions here made as to Ms Maclean's circumstances. 18. His Honour was clearly aware of Ms Maclean's contentions as to hardship and took those into account in the exercise of his discretion. It cannot in our view be said that the outcome of that exercise was so manifestly unreasonable as to bespeak House v The King error even if no particular error can be identified (the fourth of the categories of such error). In this context, it may be noted that there is complaint by the respondents in their oral submissions as to the lack of payment by Ms Maclean towards outgoings for the Property or any occupation fee referable to their interest in the Property. Those are matters of which there is no evidence before us. The fact that another judge might have reached a different conclusion when balancing the issue of hardship against the respondents' right to vacant possession in considering whether or not to grant a stay is not the test. 19. For completeness, we note that the affidavit affirmed by the respondents' solicitor (Mr Blackstone), while read on the application, does not go to the issues raised by the application for leave to appeal and we have not relied on it. 20. Having considered the matters raised on the application for leave, we were not persuaded that it was reasonably arguable that the primary judge erred in the House v The King sense in exercising his discretion not to stay the execution of the writ of possession; and we therefore dismissed the application for leave to appeal. We did, however, condition the orders made for dismissal of the summons on the filing of a further undertaking by the respondents in relation to the position if the Property is let (such that the net rent be first applied to maintenance and outgoings in relation to the Property with half of the balance of such rent to be held on trust by the respondents' solicitors) and that, if the respondents themselves were to occupy the Property, then they pay or account for a market rate for an occupation fee (that rate to be in accordance with a written estimate or opinion from an independent local real estate agent – a qualification requested by Mr Adamson). This should preserve any net income received from the Property until the dispute as to the entitlement of the parties to the Property is finally determined in the Equity Division proceedings. With respect, it is clearly a matter that needs to be progressed by the parties (and the Court) with expedition. 21. We note that, in the course of the hearing, the Court raised the prospect of mediation of the dispute. Mr Adamson professed Ms Maclean's willingness (and desire) that the matter be mediated. We would encourage such a course, not least because it cannot be in the interests of any of the parties for the costs of what is already a litigious saga to continue to proliferate. However, given the lateness of the application for a stay of execution of the writ of possession, it did not appear feasible for a court annexed mediation to occur in advance of the time fixed for the eviction and judicial note can be taken of the delay likely to be occasioned if a subsequent eviction date needed to be arranged. Suffice it to note that it remains open to the parties to seek to reach a consensual resolution of their disputes; and we encouraged the parties to do so. 22. Finally, we note that costs were ordered against Ms Maclean of the application for leave to appeal on the basis of the general rule that costs follow the event. ********** 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: 28 July 2023