Brylewski v Maclean

At a directions hearing on 26 August 2022 I refused the first defendant’s application to fix a notice of motion dated 6 June 2022 for hearing prior to the hearing of the substantive proceedings. I set the proceedings down for hearing before a judge of the Court on 28 November 2022 and I stood the notice of motion of 6 June 2022 over to that day for hearing if the trial judge considered it appropriate to hear it.

On 31 August 2022 my Associate received a copy of a summons seeking leave to appeal to the Court of Appeal from those orders, accompanied by a request for me to provide reasons for the making of those orders. Ordinarily, I would not provide reasons for refusing to fix for hearing a notice of motion in advance of the hearing when I was setting the proceedings down for a hearing. However, to assist the Court of Appeal in considering the summons for leave to appeal, these are my reasons for that decision.

It is first necessary to set out something of the background which is lengthy.

The proceedings were commenced on 3 August 2021 by a statement of claim seeking an order for possession of land in Rome Street, Canterbury.

The plaintiffs were the registered proprietors of the land as tenants in common with the third defendant at the time of the commencement of the proceedings. The first defendant is the only active defendant in the proceedings and occupies the property. She was married to the third defendant. At the time of commencement of the proceedings the plaintiffs believed that the second defendant was also in occupation of the premises. However, the first defendant said in her defence that the second defendant had never permanently occupied the property, and he was no longer in occupation. The second defendant has not appeared and has taken no part in the proceedings.

The plaintiffs became the registered proprietors of the property as a result of a deed entered into between them and the third defendant on 23 January 2013. The Deed provided for the third defendant to transfer a half interest in the land to the plaintiffs and to make a will devising his remaining half interest in the land to the plaintiffs. The plaintiffs were to grant the third defendant the right of exclusive occupation of the land “for the life of the testator or such earlier date as the testator may permanently vacate the land”. The consideration for the transfer was the payment of $100,000 by instalments from the plaintiffs to the third defendant.

On 9 March 2017 the first defendant and the third defendant married.

Whilst there had earlier been a guardianship order and financial management order in respect of the third defendant giving responsibility for him to the first defendant, on 11 April 2017 the New South Walers Civil and Administrative Tribunal (NCAT) made a Financial Management Order committing the third defendant’s estate to the NSW Trustee and Guardian, and on 9 April 2018 NCAT appointed the Public Guardian as the third defendant’s guardian for a period of 12 months with power to decide the third defendant’s accommodation and where he may reside.

On or about 18 November 2018 the Public Guardian directed that the third defendant reside at the Canterbury Opal Aged Care Facility on a temporary basis. The third defendant vacated the property on that day.

On 8 January 2019 the Public Guardian directed that the third defendant was to remain at Opal Aged Care on a permanent basis. The first defendant claimed that those directions were against her wishes and the wishes of the third defendant. She claimed in an affidavit that since the third defendant had been at Opal Aged Care she unsuccessfully tried to convince the NSW Trustee and Guardian (she may have meant the Public Guardian) to allow him to move back to the property in Rome Street, Canterbury.

As a result of the Public Guardian’s direction, the plaintiffs took the view that the third defendant had permanently vacated the property, and they only sought an order for possession against the first defendant.

On 4 April 2019 NCAT made a Continuing Guardianship Order appointing the Public Guardian as the guardian for the third defendant on a three-year basis from 4 April 2019.

The first defendant’s defence to the claim was that she was entitled to occupy the property as the third defendant’s wife, that she occupied the property by the licence of the third defendant, and that the third defendant held his interest in the property for himself and the first defendant in equal shares. She also asserted that the covenant in the deed, whereby the third defendant was to leave his share of the property to the plaintiffs in his will, was rendered void by the third defendant’s marriage to her (this appears to have been a misunderstanding of s 12 of the Succession Act 2006 (NSW)).

At a judicial directions hearing on 9 December 2021 I listed the matter for a two- day hearing commencing 20 April 2022. I also made directions for the service of evidence by the plaintiffs and the first defendant.

On 7 March 2022 Mr Christopher Adamson, solicitor, commenced to act for the first defendant, and filed a Notice of Change of Solicitor.

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.

On 9 March 2022 I directed that any amended defence and proposed cross-claim was to be served on the plaintiffs and the third defendant’s solicitors. I indicated that I would consider the proposed pleadings at the adjourned directions hearing on 18 March 2022 to see if issues raised could be properly dealt with at the hearing fixed for 20 April 2022.

It became apparent at the directions hearing on 18 March 2022 that Mr Adamson had wrongly named the NSW Trustee and Guardian as a cross-defendant rather than the Public Guardian. He had also, contrary to my directions, filed the amended defence and cross-claim. Accordingly, I directed that the amended defence and cross-claim filed without leave be removed from the court file. I stood the proceedings over to 8 April 2022 so that Mr Adamson could re-draft his pleadings.

On 8 April 2022 Mr Adamson sought to vacate the hearing fixed for 20 April 2022. I declined to permit the third 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. I said that the first defendant would need to make claim against the Public Guardian and/or the NSW Trustee and Guardian in separate proceedings. I declined to vacate the proceedings.

On 17 April 2022 the third defendant died. The hearing did not proceed on 20 April 2022.

On 6 June 2022 Mr Adamson filed a notice of motion on behalf of the first defendant seeking the following orders:

The last document signed as a will by the third defendant was a handwritten document dated 18 March 2020. On its face it was properly witnessed as a will. It did not appoint an executor. It contained only two paragraphs saying:

On 6 June 2022 the first defendant published a Notice of Intended Application “for probate”.

At a directions hearing on 8 June 2022, I was informed by counsel for the plaintiffs that the plaintiffs had lodged a caveat in respect of the grant of letters of administration to the first defendant. This was said to be because of ongoing investigations by the police into the circumstances surrounding the death of the third defendant. For that reason the plaintiff was seeking that an independent administrator be appointed to administer the estate.

Mr Adamson, on behalf of the first defendant, wished to obtain a limited grant of letters of administration in order to challenge the validity of the deed of 23 January 2013 on behalf of the estate.

In those circumstances, I adjourned the directions hearing to enable the first defendant to apply for letters of administration in the Probate List of the Court.

On 25 July 2022 Mr Adamson on behalf of the first defendant filed a summons in the Probate List seeking the following orders:

At the adjourned directions hearing on 29 July 2022 Mr Adamson on behalf of the first defendant proposed that orders be made in the possession proceedings changing the name of the third defendant to “Emil Radecki deceased”. He also sought an order:

Mr Adamson sought orders that the notice of motion of 6 June 2022 be fixed for hearing, and that the first defendant be appointed to represent the estate pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW).

I declined to make those orders on the basis that they could not be made until the first defendant had obtained, at least, a limited grant in the probate proceedings. Where I had been informed that there was to be a contested application for letters of administration, I did not consider that it was appropriate to appoint the first defendant to represent the estate where she intended to make a substantive claim on the estate’s behalf. If that claim was unsuccessful, the estate was likely to be liable for substantial costs. In any event, r 7.10 is more appropriately invoked where an estate is otherwise being sued: eg, Stedman v O’Hearn [2006] NSWSC 1122; Government Insurance Office v Johnson [1981] 2 NSWLR 617 at 623. I was informed that the probate proceedings would be before Hallen J on 19 August 2022. Accordingly, I stood the directions hearing over to 26 August.

I was subsequently provided with a transcript of the directions hearing before Hallen J in the Probate List on 19 August 2022. Justice Hallen directed that the application for letters of administration should proceed on pleadings because no one had sought that the caveat cease to be in force. Mr Adamson did not make any application in relation to the making of a limited grant in favour of the first defendant.

At the directions hearing before me on 26 August 2022 the plaintiff sought that the possession proceedings together with the first defendant’s notice of motion of 6 June 2022 be set down for hearing. The first defendant sought the following orders:

As I indicated earlier, I fixed the possession proceedings for hearing and stood over the notice of motion for hearing if the trial judge considered it appropriate to hear that notice of motion. I made those orders for these reasons.

The present proceedings are possession proceedings only. The plaintiffs are registered proprietors of the land. No orders were or are sought against the third defendant because at the time the proceedings were commenced the third defendant was not an occupier of the property. The only occupier was the first defendant.

The third defendant is now dead, and there must be some doubt about whether his estate will have any right to challenge the entry into the deed of 23 January 2013. In any event, the circumstances of how the plaintiffs came to be registered proprietors of the land is irrelevant to the question of any right that the first defendant might have to remain in occupation of the land. As Young JA said in Hanshaw v National Australia Bank Ltd [2012] NSWCA 100; (2012) 264 FLR 294 at [34]:

The deed was entered into on 23 January 2013 and, until the present possession proceedings commenced, there had not been any challenge to the validity of that deed. Where 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. However, Mr Adamson has said that the estate would rely on some personal equity to have the deed and the transfer set aside.

In my opinion, if the first defendant wished to challenge the validity of that deed and was able to do so on behalf of the estate, such a challenge should be made in separate proceedings. The issues that would be raised in such a challenge would be quite unrelated to any issue in the possession proceedings.

Although Mr Adamson relied on this occasion on rr 7.8 and 7.9 of the UCPR, that change did not alter the position as I saw it at the previous directions hearing. There were to be contested proceedings to obtain a grant of letters of administration. It was inappropriate to appoint the first defendant to represent the estate in those circumstances, and where she intended to commit the estate to a substantive claim.

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).

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.