Chalik v Chalik (No 3)

1. [1]

   The appellant in these proceedings, Gregory Chalik, is appealing from a decision of Henry J, handed down on 16 February 2024, concerning the estate of the late Margaret Chalik: Chalik v Chalik [2024] NSWSC 117. Margaret Chalik was survived by her two sons, Gregory Chalik and Isaac (formerly, Igor) Chalik. Isaac Chalik was the defendant in the proceedings before Henry J and he is the respondent in the present appeal. So as to avoid confusion and without disrespect to either party, I will refer to them below as Gregory and Isaac, respectively.

2. [2]

   On 16 December 2024, I heard argument on two notices of motion filed by Gregory. It is necessary to place those notices of motion in the context of the convoluted procedural history surrounding this appeal.

3. [3]

   Henry J outlined the main claims in the proceedings at the beginning of her Honour’s reasons:

4. [4]

   Isaac’s challenge to the validity of the 2013 Will, to which her Honour referred in [7], was brought as part of proceedings 2021/296823, which Gregory commenced seeking probate in solemn form of that will (Probate Proceedings). Gregory also commenced proceedings 2021/326779, seeking an order for interim provision pursuant to s 59 of the Succession Act 2006 (NSW) and liberty to apply for a final order under that section (Succession Proceedings). Ultimately, in relation to the Succession Proceedings, Gregory sought a final order under s 59 for further provision as described by her Honour in [7]. Gregory represented himself in the proceedings before Henry J, while Isaac was legally represented.

5. [5]

   Henry J gave lengthy reasons for judgment, concluding that the 2013 Will was invalid, on grounds which included lack of testamentary capacity, and dismissing Gregory’s claim that adequate provision had not been made for him under the 1998 Will. Her Honour made the following orders at [536]:

6. [6]

   Gregory filed a notice of intention to appeal and, on 23 May 2024, a notice of appeal. On 9 August 2024, Slattery J made a series of orders which relevantly included the following:

7. [7]

   On 12 August 2024, on the application of Isaac, Price AJA struck out parts of Gregory’s further amended notice of appeal, made a referral under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) for Gregory to receive legal assistance to redraft the further amended notice of appeal, and extended the stay until 19 August 2024 when the matter was next listed before the Registrar: Gregory Roman Chalik v Igor Chalik [2023] NSWCA 203.

8. [8]

   Between 19 August 2024 and 14 October 2024, further orders of the Registrar of the Court of Appeal continued the limited stay that had been granted by Slattery J. At no stage did Gregory make an application to the Court of Appeal by way of a notice of motion for a stay. It appears that no order was made on 14 October 2024 formally to continue the stay, although this was not raised as an issue by either party. The directions of that date did include that Isaac file and serve any Notice of Motion regarding the current stay by 18 October 2024, which he did.

9. [9]

   On 18 November 2024, Price AJA dealt with the notice of motion that Isaac had filed on 18 October 2024 which sought to strike out a further amended notice of appeal filed by Gregory and to lift the stay. His Honour made orders striking out Gregory’s further amended notice of appeal with liberty to file and serve a further amended notice of appeal within 14 days: Gregory Roman Chalik v Isaac Chalik [2024] NSWCA 273. His Honour also made the following order:

10. [10]

    Three days later, on 21 November 2024, Gregory filed a notice of motion which sought to amend and supplement the orders of Price AJA as follows:

11. [11]

    This notice of motion, supported by an affidavit affirmed by Gregory on 21 November 2024, was the first of the notices of motion listed for hearing before me on 16 December 2024. I will refer to it below as the “November notice of motion”.

12. [12]

    On 5 December 2024, Gregory filed an amended notice of appeal. Given the filing of that document, orders 1, 2 and 3 that Gregory sought in the November notice of motion have no utility (noting in relation to order 3 that no distribution has yet been made), leaving only order 4.

13. [13]

    Also on 5 December 2024, Gregory filed a second notice of motion seeking the following order:

14. [14]

    Following a communication from the Registrar of the Court of Appeal, on 10 December 2024 Gregory filed an amended notice of motion which sought the same order and which added Ms Monica Ross-Maranik as the second respondent. Ms Ross-Maranik was appointed by Hallen J as the administrator of the estate of the late Margaret Chalik, an appointment extended by Henry J until further order of the Court. This was the second notice of motion listed before me on 16 December 2024, supported by an affidavit affirmed by Gregory on 13 December 2024. I will refer to it below as the “December notice of motion”.

15. [15]

    In an email to Gregory and Isaac dated 10 December 2024, a copy of which Isaac handed up on 16 December 2024 and which I marked as Exhibit 1 on the December notice of motion, Ms Ross-Maranik indicated her position on that motion. During the hearing, Gregory confirmed that he had seen Ms Ross-Maranik’s email on 12 December 2024 and did not object to my receiving it. Relevantly, in that email Ms Ross-Maranik stated:

16. [16]

    I pause to note that the steps that Ms Ross-Maranik outlined in her email were consistent with Price AJA’s lifting of the stay to permit distribution of the estate pursuant to the 1998 Will, and were also consistent with her role as the administrator of the late Margaret Chalik’s estate. Price AJA was concerned not to render nugatory the real issues in dispute between the parties on the appeal: at [14]. However, there were moneys in the hands of the administrator and his Honour considered that it was appropriate in the interests of justice to lift the stay of Henry J’s orders to facilitate distribution of those moneys, in circumstances where:

    1. (1)

       on the one hand, Gregory, who was seeking to continue the stay, submitted that he did not trust Isaac, who described himself before Price AJA as “a wealthy man in his own right” (which his Honour did not understand was being challenged). Gregory said it would be difficult to get the money back from Isaac if he succeeded in his appeal (at [16]);

    2. (2)

       on the other hand, Isaac had a judgment in his favour, which was handed down in February 2024. The distribution of the estate had been delayed by Gregory’s intention to appeal, the progress of which had been problematic, and there was “the real possibility of the time being extended for this matter to be resolved, which means that Isaac would not have the benefit of any of the moneys” (at [17]);

    3. (3)

       further Gregory had received a number of distributions from the administrator, including an initial distribution of $250,000, along with $65,000 for a van, and other distributions for eye surgery and dental fees (at [17]); and

    4. (4)

       Isaac was prepared to give an undertaking to the Court not to dissipate the moneys distributed to him, and to pay those moneys into court immediately upon notification of a successful appeal if that occurred (at [16]).

17. [17]

    Having regard to the applicable principles for a stay (relying on the summary in Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 (“Penrith Whitewater”) at [19]), Price AJA concluded that Gregory had not demonstrated a proper basis for the continuation of the stay in relation to distribution: at [18].

18. [18]

    Although Price AJA did not seek to disturb the order by which Henry J granted probate in relation to the 1998 Will, the grant of probate to which Ms Ross-Maranik referred in her email of 10 December 2024 was necessary in order for her to make the distributions from the estate that his Honour ordered should be made. Gregory’s position in relation to the outcome of the appeal remained protected, as his Honour intended, given the terms of the written undertaking that Isaac provided to the Court pursuant to order 3(a) of 18 November 2024, the terms of which mirrored the terms of Price AJA’s order.

The November notice of motion and the December notice of motion

1. [19]

   In Gregory’s affidavit in support of the November notice of motion he clarified what he was seeking to do by this application, namely (at [12]):

2. [20]

   Contrary to the notation that Slattery J made to his orders of 9 August 2024, Gregory stated in his affidavit that he expected that he would be directed to make an application for a stay; and when this did not happen he was under a mistaken belief that the Court would advance a discretionary stay of the proceedings until an appeal date was set. He then made submissions reagitating the question of a stay by reference to the criteria in Penrith Whitewater at [19], namely:

3. [21]

   Gregory advanced a range of bases on which he asserted that the judgment of Henry J was plainly in error, with the consequence that lifting the stay was unfair to him and caused him prejudice, whereas Isaac, whom he described as owning several unencumbered properties, suffered no injury if there was a stay.

4. [22]

   As for the December notice of motion, it was not immediately clear from the terms of the order sought whether Gregory was seeking a mandatory injunction directed to Ms Ross-Maranik to distribute the estate, or an injunction to restrain any such distribution from occurring. That ambiguity was resolved upon receipt of Gregory’s affidavit affirmed on 13 December 2024, in which he stated that he was seeking an injunction “from the decision by Price AJA 18 November 2024 Gregory Roman Chalik v Isaac Chalik [2024] NSWCA 273”.

5. [23]

   In that affidavit, Gregory asserted that he had a very strong prima facie case “for granting the injunction to stay the orders by Price AJA to lift [the] stay”. He relied in this regard on the amended notice of appeal that he filed on 5 December 2024, in which he alleged that the respondent had engaged in fraud which related to financial dealings and had provided false and misleading information to the Court. He submitted orally that his grounds of appeal were of a very serious nature, from which it followed that he had a very strong prima facie case. He also asserted in his affidavit that his strong prima facie case was supported by Isaac’s unwillingness to provide a financial disclosure in the court below, or to provide a statement of assets in the undertaking that Price AJA required as a condition of lifting the stay with respect to distribution of moneys. Apart from the fact that provision by Isaac of a statement of assets was not required as a condition of the undertaking or otherwise, Gregory’s December affidavit was at odds with his November affidavit, in which he relied on Isaac owning several unencumbered properties.

6. [24]

   In his oral submissions, Gregory took issue with the form of the undertaking that Isaac provided to the Court, submitting that there were a number of irregularities with it. He also submitted that instead of considering his strong prima facie case and the balance of convenience, Price AJA had considered the criterion of fairness.

7. [25]

   By his November notice of motion, Gregory was seeking to reagitate the question of a stay that Price AJA had considered and determined three days before. By his December notice of motion, he sought to achieve that same result by a different route. As I explained to Gregory during the hearing, the notices of motion did not empower me, sitting as the referrals judge, to hear an appeal or review of Price AJA’s decision. It is not otherwise appropriate for a party who has been unsuccessful on a matter of procedure to file another application in the hope that a different judge will form a different view, absent at least a material change in circumstances.

8. [26]

   The material on which Gregory relied in respect of his two notices of motion does not indicate that there has been any material change in the circumstances since the question of the stay was heard and determined by Price AJA on 18 November 2024. Gregory relied principally for this purpose on his amended notice of appeal and the grounds contained therein.

9. [27]

   Before the hearing on 16 December 2024, Isaac had not seen a copy of the further amended notice of appeal of 5 December 2024. Given the reliance that Gregory placed on it, I considered it appropriate that Isaac have an opportunity to make written submissions limited to the issue of whether the further amended notice of appeal constituted a change in the circumstances from when Price AJA dealt with the matter. In accordance with the direction that those submissions be served on 17 December 2024, Isaac provided brief written submissions on that date. The submissions raised a number of issues with the amended notice of appeal, which were not relevant to the notices of motion before me. More relevantly, Isaac submitted that the notice of appeal was not the main factor in Price AJA’s consideration of whether a stay of Henry J’s orders should be continued, and that the recently further amended notice of appeal did not change the circumstances as they were at 18 November 2024. On 18 December 2024, Gregory filed a lengthy reply that addressed in some detail Isaac’s issues with the further amended notice of appeal and otherwise sought to take issue with aspects of Price AJA’s reasoning, in a manner which confirmed that he was seeking impermissibly to use the notices of motion as a means of appealing against Price AJA’s decision.

10. [28]

    The further amended notice of appeal does not alter what Price AJA concluded in relation to the balance of convenience which, contrary to Gregory’s submission, his Honour necessarily considered. It is clear from the orders his Honour made that they were directed to achieving a balance between the competing rights of the parties:

    1. (1)

       for Gregory, his right to appeal and to receive a different distribution of the estate in the event that he succeeded on the appeal; and

    2. (2)

       for Isaac, his right to the fruits of the judgment out of which he had been kept for many months, in circumstances where he was prepared to give a written undertaking to protect Gregory’s position.

11. [29]

    The matters that Gregory advanced in his material in support of the two notices of motion did not raise any material change in circumstances relevant to the balance of convenience. Rather, he sought to revisit what Price AJA found in relation to Isaac’s financial position. As Isaac submitted, Gregory had an opportunity to make those points before Price AJA.

12. [30]

    Nothing that Gregory advanced before me supported any relevant change in the matters on which Price AJA relied in concluding that the interests of justice favoured lifting the stay on the distribution of the estate conditional upon Isaac providing a written undertaking in the form which he has. It follows that the two notices of motion filed by Gregory should be dismissed. Isaac also sought that costs of the motion be reserved and I will so order.

13. [31]

    I note that at the conclusion of his written submissions of 17 December 2024, Isaac sought a number of additional procedural orders. Those matters should be raised with the Registrar of the Court of Appeal in the first instance, and I will list the appeal before the Registrar on 3 February 2025 for directions. However, in so far as Isaac sought an order with respect to the distribution of the estate, I note that Price AJA has already made that order.

14. [32]

    I make the following orders:

    1. (1)

       The appellant’s notice of motion dated and filed on 21 November 2024 is dismissed.

    2. (2)

       The appellant’s notice of motion dated and filed on 10 December 2024 is dismissed.

    3. (3)

       Costs of the notices of motion dismissed in orders (1) and (2) above are reserved.

    4. (4)

       List the appeal for directions before the Registrar of the Court of Appeal on 3 February 2025.