[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.]
EX TEMPORE JUDGMENT
When we started the hearing this afternoon, I indicated to Mr Gregory Chalik that I had received from him a further notice of motion. I indicated that the notice of motion had not been filed, and procedural fairness had not been accorded to Mr Isaac Chalik as he had only been served with that notice of motion whilst he was on the train coming to court this afternoon.
That notice of motion causes me considerable concern as if it is proceeded with by Mr Gregory Chalik it opens up a new course of action. What that notice of motion proposes is that the judgment of Henry J be set aside on the basis of fraud. The assertion is that the orders were made irregularly, illegally, against good faith, and there are assertions of fraud, references being made to ss 192B and 192E of the Crimes Act 1900 (NSW). The reason I mention it, despite the fact that I have informed Mr Gregory Chalik that he must file the notice of motion properly in the registry and serve it properly, is that it indicates that the present dispute will continue "ad nauseum".
The proceedings have had a troubled history. I dealt with it in August of this year when I made certain orders in respect of the proposed notice of appeal by Mr Gregory Chalik. Mr Gregory Chalik unfortunately was unable to receive assistance in the further drafting of the notice of appeal, despite efforts having been made to attain pro bono assistance. In my last judgment I noted the complexity of these proceedings and the difficulties that there are in drafting a notice of appeal.
The notice of motion before me this afternoon has been commenced by Mr Isaac Chalik who appears self-represented, as does Mr Gregory Chalik. The notice of motion seeks orders striking out the further amended notice of appeal, and also a lifting of the stay of the orders made by Henry J.
I turn firstly to the further amended notice of appeal. It is currently entitled "Second Further Amended Notice of Appeal" and was filed on 23 September 2024. Without disrespect to either of the parties, and purely for the sake of convenience, I will refer to Mr Isaac Chalik as Isaac and I will refer to Mr Gregory Chalik as Gregory.
On 16 February 2024 Henry J in Chalik v Chalik [2024] NSWSC 177 made orders, inter alia, at [536(1)-(10)]. Gregory wishes to appeal against the orders made, but as I have indicated, has had difficulties drafting the notice of appeal. It is evident that Gregory wishes to appeal against the order Henry J made that the 1998 will, which left the deceased's estate equally to Isaac and Gregory be admitted to probate. That judgment involved her Honour determining in favour of Isaac's challenge that the 2013 will in which the deceased left everything to Gregory was invalid, upon grounds which, inter alia, included lack of testamentary capacity. Another principal issue was Gregory's claim that adequate provision had not been made for him in the 1998 will, which was dismissed.
Before proceeding further, I should bring to the attention of the parties r 51.18 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). Rules 51.18(1)(e) and 51.18(1)(f) of the UCPR provide that a notice of appeal must state:
(e) briefly, but specifically, the grounds relied on in support of the appeal, and
(f) what judgment, order, verdict or determination the appellant seeks…
The requirement of formulating the grounds of appeal with brevity and precision has been emphasised by the Court of Appeal on a number of occasions. The notice of appeal should succinctly state the basic nature of the challenge to the impugned decision; identify the findings the primary court should have made in the view of the appellant; identify the respects in which an error of law or fact occurred; and state the nature of any contentious evidence that was the subject of any wrongful admission or rejection.
The current notice of grounds of appeal falls short of those requirements. It suffers from similar prolixity to the notice of appeal which I dealt with in August. It also fails with any precision to identify the respects in which an error of law or fact is alleged to have occurred. However, there is some hope for this document in the sense that it identifies some arguable grounds of appeal in the form of questions. For example, paragraph 8 is expressed as: "Did her Honour err in law by applying the wrong authority as precedent (error of principle law) and therefore acted on a wrong principle, i.e., a wrong and inadmissible test?" It then goes on to cite cases of Banks, Carr and Rofe. If the ground of appeal had been drafted as her Honour erred in law by applying the wrong authority as precedent, and therefore acted on wrong principle and then referred to Banks, Carr and Rofe, there may not be a problem. The same may be said about paragraph 9, if it had not been put in the form of a question, which has been done throughout the notice of appeal. There then may have been identification of the respects in which an error of law or fact is said to have occurred.
In my view (and there is some problem with the numbering with the grounds of appeal, numbers seem to have been missed out) grounds 8, 9, 10, 16, 17 and 18 may disclose a relevant cause of action if properly drafted. I have difficulty seeing any arguable grounds of appeal in paragraphs 30 through to 39.
The notice of appeal identifies the orders sought in (iv) - a declaration of the invalidity of the will of the late Margaret Chalik dated 29 October 1998; and in (v) - an order that probate in solemn form in the said will dated 23 April 2013 be granted to the plaintiff as executor of the will.
What I propose to do today is to strike out the whole of the notice of appeal, but give Gregory the opportunity (as he has heard from me, as to how he may redraft it) to redraft the notice of appeal within 14 days.
I turn to the lifting of the stay. In my discussions with Isaac he has brought to my attention that he is prepared to enter into a written undertaking not to dissipate any of the moneys which are paid to him, and to give that written undertaking to the Court.
The orders which are sought to be lifted are not the orders seeking that the will dated 29 October 1988 be admitted to probate in the solemn form and probate be granted. I would not grant such an order because that would render nugatory the real issues in dispute between the parties. However, the moneys are in the hands of the administrator, and Isaac seeks an order that these moneys be distributed to the parties in accordance with the orders that were made by Henry J. Mr Gregory Chalik opposes the lifting of the stay. As I understand it the stay was originally granted for 14 days and the stay was by consent.
The principles concerning the grant of a stay are set out in various decisions of the Court, including Alexander v Cambridge Credit Corporation Ltd (1985) 10 ALCR 42; (1985) 2 NSWLR 685 at 694, and have been condensed neatly in Penrith Whitewater Stadium & Abor v Lesvos Pty Ltd & Anor [2007] NSWCA 103 at [18]:
"a. where there is a risk that an appeal will prove abortive if the appellant succeeds and the stay is not granted, the Court will normally exercise its discretion in favour of granting a stay;
b. the onus is upon the applicant to demonstrate a proper basis for a stay;
c. it is a matter of discretion whether the Court grants a stay and if so as to the terms which would be fair as part of the granting of a stay;
d. what is important in considering whether or not a stay ought to be granted is the balance of convenience and competing rights of the parties before it;
e. it is not necessary that special or exceptional circumstances should be made out; it is sufficient for the applicant to demonstrate a reason or an appropriate case to warrant the exercise of discretion in its favour."
The party seeking the stay today is Gregory. Gregory says that notwithstanding the preparedness of Isaac to enter into and give a written undertaking that he would not dissipate the moneys, and also notwithstanding the statement to the court by Isaac today that he is a wealthy man in his own right (which I do not understand is being challenged), that he does not trust his brother and if he succeeds in his appeal, it would be difficult for him to get the money back from Isaac.
On the other hand, Isaac has a judgment in his favour. The judgment was handed down in February of this year. Since that time the distribution of the estate has been delayed by Gregory's intention to appeal. There have been problems with the progress of the appeal, which are evidenced by the proceedings today and in August, and further evidenced by the proposed further notice of motion based on fraud, which I referred to at [1]-[2] above. As I indicated, there is 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. Furthermore, I take into account that Gregory has had a number of distributions from the administrator, initially $250,000, and recently $65,000 for a van. He has also received money for eye surgery and dental fees, totalling from my quick arithmetical calculations, about $328,000.
In my view, Gregory has not demonstrated a proper basis for the continuation of the stay. It is appropriate in the interests of justice for the stay to be lifted to the extent of the distribution of the moneys in the hands of the administrator.
[2]
Orders
Accordingly, I make the following orders:
1. The Notice of Appeal as presently drafted is struck out.
2. Grant liberty to Mr Gregory Chalik to file and serve within 14 days of today a further Amended Notice of Appeal.
3. Order that the stay of the orders made by Henry J on 16 February 2024 be lifted only in the following respects:
1. To permit Ms Monica Ross-Maranik the administrator of the estate of the late Margaret Chalik to distribute half the proceeds of the estate to which Mr Isaac Chalik is presently entitled to Mr Isaac Chalik. The distribution is conditional upon and not to be made until Mr Isaac Chalik provides to the Registrar of the NSW Court of Appeal a written undertaking that he will not dissipate the monies distributed to him and will pay those monies into court immediately upon being notified that Mr Gregory Chalik has been successful in his appeal to the Court of Appeal if that event occurs.
2. To permit Ms Monica Ross-Maranik the administrator, to distribute that part of the proceeds of the estate to which Mr Gregory Chalik is entitled to Mr Gregory Chalik subject to the solicitor's lien. Any monies in excess of the solicitor's claim are to be distributed to Mr Gregory Chalik and the balance (if any) is to be distributed upon the settlement of the solicitor's claim.
1. I make no order as to costs.
[3]
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Decision last updated: 20 November 2024