Maclean v Brylewski [2023] NSWCA 128 | Case summary

Background

The background to the present proceeding can be gleaned from various decisions in this Court and at first instance, to which reference is made below.
In 2021, the respondents, in proceedings commenced in the Possession List in the Common Law Division, sought possession of the Property. The deceased was at that stage still alive, though the subject of guardianship and financial management orders made by the NSW Civil and Administrative Tribunal in April 2017, and by then a permanent resident of a nursing home. Ms Maclean, who had married the deceased in March 2017, was in occupation of the Property. The NSW Trustee and Guardian filed a submitting appearance on behalf of the deceased in the possession proceedings. Ms Maclean resisted the order for possession and claimed to be in possession of the Property as licensee of the deceased. The respondents, who were and remain co-owners of the Property, relied in those proceedings on entitlements under a deed signed by the deceased in January 2013 under which, among other things, the deceased agreed to devise his remaining half interest in the Property to them.
The possession proceedings were listed for hearing on 20 April 2022 but the deceased died on 17 April 2022 and the hearing did not proceed at that time.
Separate proceedings were then commenced by Ms Maclean in the Succession List in the Equity Division, in which Ms Maclean sought letters of administration attaching to the Will apparently made by the deceased dated 18 March 2020 (under which Ms Maclean is the sole beneficiary subject to a contingent legacy to a third party) and Ms Maclean also sought a family provision order. In those proceedings (the succession proceedings), the respondents have filed a cross-claim seeking, among other things, a declaration that the marriage of the deceased and Ms Maclean on 19 March 2017 is a nullity because the deceased then lacked capacity to enter into a marriage and challenging the validity of the 18 March 2020 Will (on the basis of lack of testamentary capacity). Further, the respondents allege that there are suspicious circumstances attending the execution of this Will such that the onus lies on Ms Maclean to prove that the deceased knew and approved of the Will. In the succession proceedings the respondents also seek a grant of letters of administration with the Will annexed of an earlier Will made by the deceased in 2010 in their favour and they lodged a caveat in respect of the grant of letters of administration to Ms Maclean. The respondents were then seeking an independent administrator to be appointed to administer the estate.
On 6 June 2022, Ms Maclean filed a notice of motion in the possession proceedings, seeking, 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.
On 26 August 2022, the 6 June 2022 notice of motion was fixed by Davies J for hearing on 28 November 2022 (concurrent with the hearing of the substantive possession proceedings) (Brylewksi v Maclean [2022] NSWSC 1193). An application for leave to appeal from that interlocutory order was heard, on a leave only basis, on 14 October 2022 by White and Brereton JJA. By agreement between the parties the application was then determined by a bench of three (for the part of Ward P, on the papers) as a concurrent hearing of both the application for leave to appeal and, if leave be granted, the appeal itself. On 27 October 2022, this Court (by majority, Brereton JA dissenting) refused leave to appeal and dismissed the applicant's summons filed 30 August 2022 seeking leave to appeal with costs (Maclean v Brylewksi [2022] NSWCA 217).
The 6 June 2022 motion (amended on 20 November 2022) was heard by Basten AJ on 28 November 2022. His Honour dismissed the notice of motion (Brylewksi v Maclean [2022] NSWSC 1654) and, among other orders, made an order (subject to an undertaking to the Court to be filed and served by the respondents - see order 3) for the delivery of vacant possession of the Property to the respondents (see order 2) and granted leave for the issue of a writ of possession (see order 4).
Ms Maclean then filed a notice of appeal (since amended), maintaining that she has an appeal as of right, from the whole of Basten AJ's decision. In her amended notice of appeal, Ms Maclean raises no fewer than 66 grounds of appeal, with numerous complaints as to his Honour's decision, including allegations as to denial of procedural fairness, apprehended bias, errors in the making of various findings and numerous other perceived errors. As to the challenges to factual findings, the initial position adopted by Ms Maclean in her submissions was simply to the effect that some combination of the listed grounds amounted to error (without articulating the basis on which his Honour was said to have erred). Ms Maclean then served a 'Statement of Challenges to Findings", listing some 27 "findings" the subject of challenge (not all of which went to matters of fact as opposed to law).
Ms Maclean also sought leave to adduce new evidence, moving on the sole remaining prayer for relief in a notice of motion that had been filed on 9 May 2023 (as amended by leave granted on the hearing of the proceeding in this Court), that being prayer 5 seeking leave to adduce new evidence (comprised of pleadings in the succession proceedings, orders made by Hallen J on 27 March 2023 and an affidavit affirmed by her solicitor, Mr Adamson, on 16 May 2023 with the exhibit thereto). The respondents did not object to such leave being granted but sought and obtained leave to rely on an affidavit affirmed 18 May 2023 from their solicitor, Mr Balasubramanian, in response.
At the outset of the hearing in this Court, Ms Maclean's solicitor maintained that there was no requirement for leave to appeal (notwithstanding the monetary limit on appeals as of right in this Court) on the basis that the subject matter of the hearing below was a property; the submission of the applicant in essence was that this would be the value of the Property itself. In fact, the issue in relation to the Property that was determined by the primary judge was as to the claimed order for possession of the Property, and when this was put to Ms Maclean it was said by Ms Maclean's solicitor that it was a matter of common knowledge that the rental market was extremely high at the moment for any property in Sydney and thus the right of occupation "could be worth an awful lot". However, faced with the problem that it was for Ms Maclean to establish a right of appeal and that there was no evidence from which the value of the right of possession for an indefinite time could be assessed, Ms Maclean's solicitor made clear that if leave were necessary his instructions would extend to an application for such leave.
In any event, the hearing of the application for leave to appeal, or appeal if leave be granted, was effectively truncated by the concession by Ms Maclean's solicitor that, if there were no issue estoppel resulting from Basten AJ's judgment as to the validity of the deed on which the respondents rely (such that this issue could be determined in the succession proceedings), then the present application would be unnecessary (see the discussion at transcript 7-8 in this Court; and the concession at T 8.25-27). Counsel for the respondents then made clear that the respondents' position was that no such issue estoppel had arisen, nor could it be suggested that it had arisen (T.8.38ff). Once that was clarified (and, in fairness to Ms Maclean, it must be noted that the Court was taken to transcript of proceedings when the matter was before Hallen J, counsel then appearing for the respondents appeared to suggest that there might be some sort of issue estoppel arising - see Ex 1 at p 72, which may well have been the genesis for Ms Maclean's concerns in this regard), Ms Maclean ultimately accepted that there was no utility in the present application (T 12.34) and did not oppose an order dismissing the summons, with the sole remaining issue being as to the costs of the proceedings in this Court.

[4]

Submissions

As to the issue of costs, Ms Maclean submitted that each party should bear its own costs whereas the respondents sought an order that Ms Maclean pay their costs of the proceedings (although they did not press for those on the indemnity basis as had been foreshadowed in their written submissions).
In that regard, Ms Maclean's position as to costs was said to be for two reasons. First, the lack of indication at an earlier stage by the respondents that they would not be relying on an issue estoppel and, second, the making of an open offer (with a view to reducing costs albeit not expressed by reference to the principles in Calderbank v Calderbank [1975] 3 WLR 586) by letter dated 31 March 2023.
The letter dated 31 March 2023 made the following offer: (i) the parties consent to the stay of the appeal until the determination of of [sic] probate proceedings … and any appeal therefrom (the Deteremination) [sic] on the following terms: (ii) at the Determination, the appeal be dscontued [sic] and costs of the appeal shall follow the event of probate proceedings …; (iii) as and from the date of these terms of settlement, the appellant and respondent undertake not to file any further appeal from the judgment of Basten J. made on 6 December 2022; (iv) the respondent agrees and undertakes not to rause [sic] any issue or cause of action estoppel in probate proceedings …; (v) the respondent agrees not to enforce the orders of made by Basten J on 6 December 2022 until determination of the probare [sic] proceedings … or for such other period as the parties shall agree in writing; and (vi) these terms of settlement shall be reduced to consent orders, pro tanto and a deed settlement prepared and filed in the Court.
The letter concluded with an invitation for the respondents to make any other "reasonable suggestions or negotiation". There was no response to the letter. The Court was informed that there was an agreement in place to the effect that no action for possession would be taken on anything less than 14 days' notice, on the understanding that the present application would be prosecuted expeditiously, until this Court handed down its decision on the appeal (see at T 14.43-15.11).
Ms Maclean's position in effect was that it was apprehended that issue estoppel would be raised in relation to the validity of the deed, this was raised in the letter to the respondents, and if the point that there was no issue estoppel arising was so apparent to the respondents as suggested now, then they could have responded to the letter and the issue would have been resolved at an earlier stage (i.e., that Ms Maclean would have understood that the question would not be raised in the succession list proceedings) without the need for the appeal proceedings to be pursued.
The position of the respondents in relation to costs was to the effect that the present application was that Ms Maclean's letter of offer was not confined to whether the question of issue estoppel would be pursued; rather, it included a stay for an indefinite time and on terms that included that costs follow the event in the succession list proceedings.
After judgment was reserved on the question of costs, the respondents' counsel (with the consent of Ms Maclean's solicitor) referred to the reference in submissions to the matter of issue estoppel (Mr Adamson's submissions at item 27 of the tabulation of challenges to the findings (being a reference to his Honour's statement that the challenge to the Deed could be made in the succession proceedings - see at [46]) and Ms Maclean's contention (in the column dealing with the findings contended for) that the challenge to the deed in the "probate division" would likely be prevented by issue estoppel), responding to the respondents' submission (at [59] of their submissions, to the effect that the primary judge's reasons at [46] make plain that the succession proceedings are where the issue should be ventilated; the respondents maintaining that the suggestion that his Honour erred in holding that the issues should be ventilated in the current succession proceedings had no merit).
The respondents' complaint is that the offer made by Ms Maclean was put in the context of 66 appeal grounds that were convoluted and without merit; and that it shackled the costs of the appeal proceedings to the outcome of separate proceedings that were (relevantly) unrelated and included a stay for what could be a lengthy period of time while the succession proceedings continued their course.

[5]

Determination

Ms Maclean's solicitor made clear that the impetus of the present proceedings was the concern that there would be an issue estoppel arising from the decision of Basten AJ in relation to the issue of the validity of the deed on which the respondents rely in the succession proceedings. Whatever was said in the course of argument before Hallen J in a separate application is irrelevant. On no view of the matter did Basten AJ make any concluded findings as to the validity of the deed in question and Ms Maclean's concern was unwarranted. What his Honour said (at [35]) was that he was not persuaded that there was 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. The suggestion that this was a finding (giving rise to an issue estoppel) that the deed was valid need only to be stated to be rejected as untenable.
Had the appeal been sought to be conducted solely in relation to an incorrectly perceived error that there was a finding as to the validity of the deed, that might be one thing (in circumstances where it appears the respondents did not disabuse Ms Maclean of such an apprehension). However, Ms Maclean, in seeking to preserve the ability to challenge the validity of the deed, chose to raise multiple grounds of appeal including (without any apparent foundation) serious complaints of denial of procedural fairness and apprehended bias on the part of his Honour and a litany of other alleged errors (a number of which do not appear to be part of the dispositive reasoning of his Honour). It is not necessary here to delve into the numerous grounds of appeal. They were quite charitably described by the respondents as convoluted. Most on their face would have had tenuous prospects of success, even assuming that it would have been appropriate to have granted leave to appeal (which itself is not obvious given the lack of any evidentiary foundation for the assertion by the applicant that the subject matter of the appeal - a complaint as to the making of an order for vacant possession - exceeded the statutory limit) (see Sidoti v Hardy (2021) 105 NSWLR 1; [2021] NSWCA 105 at [172] per Brereton JA).
It is well recognised that the costs discretion is a wide one, albeit one to be exercised judicially. Further, the general rule (recognised in the Uniform Civil Procedure Rules 2005 (NSW)) is that costs follow the event. There is no reason not to follow that course here. The appeal proceedings were wholly misconceived and Ms Maclean's summons was dismissed when the inutility of the proceedings was ultimately conceded by Ms Maclean. The respondents have been put to the cost of preparing for the appeal (and no doubt the conduct of the succession proceedings has been delayed pending the appeal). While it would have been courteous (at the very least) for the respondents to have responded to the offer made to them by Ms Maclean in late March this year, there is nothing to suggest that Ms Maclean would have recognised at that stage the inutility of the appeal (and the history of the proceedings as gleaned from the litigious saga to date suggests otherwise). The non-acceptance of Ms Maclean's offer does not assist Ms Maclean's position since it was subject to terms that went beyond an acknowledgement as to the vexed question of the issue estoppel.
In all the circumstances, the appropriate order is for Ms Maclean to pay the respondents' costs of the proceedings in this Court. Accordingly, the Court so orders.

Maclean v Brylewski [2023] NSWCA 128 | Case summary | Zoe

Maclean v Brylewski

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (5)

Cited By (3)