Hall v Carney (No 3)

[2021] SASCA 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

HALL v CARNEY (No 3)

[2021] SASCA 37

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Livesey and the Honourable Justice Bleby)

21 May 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS - TRUSTS AND DECEASED ESTATES - STATUTORY PROVISIONS IN TRUSTEE ACTS

LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS - TRUSTS AND DECEASED ESTATES - ACTIONS AGAINST DECEASED ESTATES

SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - OTHER MATTERS

On 17 November 2006, Kathleen Florence Elliott (the deceased) made her last will and testament, under which she appointed the first and third respondents as her executors and trustees. She subsequently died on 27 January 2007. The appellant and the first respondent are the deceased’s children.

Since 2015 the appellant has foreshadowed various claims against the executors but has not prosecuted those claims. A Master ordered that notices be issued, allowing the applicant six months in which to either withdraw or commence those claims. The appellant did not withdraw or commence the “Notified Claims” by 5 January 2020.

On 24 September 2020 orders were made under s 29(2) of the Trustee Act 1936 (SA), barring the appellant from instituting any proceedings against the executors in respect of the Notified Claims.

The executors also applied under s 69 of the Administration and Probate Act 1919 (SA) for advice or direction as to how to proceed with the administration of the estate. The orders included advice or direction as to the distribution of the assets of the estate and as to costs.

The appellant appealed against this decision.

Held (by the Court), dismissing the appeal:

1. Section 29(2) of the Trustee Act 1936 (SA) confers a discretionary power to extend time and mould barring orders in any manner the Court “deems just”. Observations made about the history and operation of the Trustee Act and The Administration and Probate Act 1919 (SA).

2. While the burden rests upon the representative or trustee applying under s 29(2) of the Trustee Act 1936 (SA) to show that a barring order should be made, where a claimant fails to withdraw or prosecute claims within six months, the claimant bears an evidentiary onus to demonstrate why no order should be made.

3.    The appellant has engaged in egregious delay without any satisfactory explanation over many      years. Even allowing for the demands of other proceedings and chronic ill-health, the      appellant has had a reasonable opportunity to pursue his claims. The appellant has not        properly explained his failure to institute proceedings, including during the six months to 5     January 2020.

4.    The appellant’s various claims are not reasonably arguable, or at least have not been shown         by him to be reasonably arguable. Even if the appellant’s claims had merit, his long delay is     a significant matter to be weighed in the exercise of discretion. Administrations are not to        remain in stasis. It is not in the public interest that the due administration of estates be   delayed.

5. In the exercise of this Court’s discretion, it is just that a barring order be made in respect of the Notified Claims pursuant to s 29(2) of the Trustee Act 1936 (SA) to bring the administration of this estate to a conclusion.

6.    It was appropriate to direct that the appellant meet half the costs incurred by the executors in        dealing with his unreasonable questions, requests and correspondence.

Trustee Act 1936 (SA) s 29(2); Administration and Probate Act 1919 (SA) s 69; Inheritance (Family Provision) Act 1972 (SA); Lord St. Leonards' Act (UK); Law of Property Amendment Act 1859 (UK), referred to.

Hall v Carney (No 3) [2020] SASC 177, discussed.

Adair v Shaw (1803) 1 Sch & Lef 243; Allhusen v Whittell (1867) LR 4 Eq 295; Annan v Wayne [1988] SASC 1053; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Bailey v Marinoff (1971) 125 CLR 529; Ballas v Theophilos (No 2) (1957) 98 CLR 193; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Carney v Hall (2011) 111 SASR 424; Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1; Clegg v Rowland (1866) 3 LR 3 Eq 368; Collingridge v Niewsmann (1920) 37 WN (NSW) 224; Coulton v Holcombe (1986) 162 CLR 1; Dickman v Holley; Re; Estate of Simpson [2013] NSWSC 18; Ennis v Allied Irish Banks plc [2021] IESC 12; Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112; Gray v Guardian Trust Australia Ltd [2003] NSWSC 704; Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115; Hall v Carney [2021] SASCA 41; Hall v Carney (No 2) [2021] SASCA 42; Hall v Carney [2012] SASCFC 76; Harvey v Phillips (1956) 95 CLR 235; In re Barber (Dec’d) [1924] VLR 123; In re Tong; Hilton v Bradbury [1931] 1 Ch 202; Joyce v Cam [2004] NSWSC 621; Ludwig v Public Trustee (2006) 68 NSWLR 69; Lum v Su & Lee [1985] SASC 8023; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; Marley v Mutual Security Merchant Bank & Trust Co Ltd [1991] 3 All ER 198; McGrath v Troy [2010] NSWSC 1470; McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623; Mills v Haywood (1877) 6 Ch D 196; Mohtar v Mohtar and Seputis (1988) 146 LSJS 377; Morice v Bishop of Durham (1805) 10 Ves Jr 522; Newton v Sherry [1876] 1 CPD 246; Nicholson v Smith (1882) 22 Ch D 640; O’Brien v Komesaroff (1982) 150 CLR 310; O’Brien v McCormick [2005] NSWSC 619; Pomery v Hand [1993] SASC 4134; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Re Barber (Deceased) [1924] VLR 123; Re Cohen deceased [1960] 1 Ch 179; Re Hanayama (Unreported, Supreme Court of Queensland, White J, 11 November 1998); Re K (2002) 171 FLR 286; Re Long (Deceased) [1951] NZLR 661 (CA); Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125; Re Timm (Deceased) [1912] VLR 460; Ridgeway v The Queen (1995) 184 CLR 19; Roos v Karpenkow (1998) 71 SASR 497; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; The Public Trustee v Cenin [1999] WASC 1020; The Will of Walker (1943) 43 SR (NSW) 305; Tschirn v Australian Executor Trustees Limited [2016] SASC 149; UBS AG v Tyne (2018) 265 CLR 77; Ulowski v Miller [1968] SASR 277; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Whisprun v Dixon (2003) 77 ALJR 1598; Wichmann v Dormway Pty Ltd [2019] QCA 31; Williams v Stephens (unreported, Supreme Court of NSW, Young J, 24 March 1986); Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484, considered.

HALL v CARNEY (No 3)
[2021] SASCA 37

Court of Appeal - Civil:   Doyle, Livesey and Bleby JJA

THE COURT:         

Introduction

1. This appeal concerns the statutory procedure by which the Court may bar disputed claims which are notified but not prosecuted. Rather than delay the administration of an estate waiting for notified claims to be prosecuted, s 29 of the Trustee Act 1936 (SA) (the Trustee Act) permits an order to be made setting a six-month time-frame within which those claims must be made and, if they are not made, executors may apply to the Court for a “barring order”. If a barring order is made, executors may administer the estate without regard to those claims and without risk of personal liability in respect of them.

2. The estate in this case is that of Kathleen Florence Elliott who died on 27 January 2007 (the deceased). She made her last will and testament on 17 November 2006 (the will). The deceased appointed the first and third respondents, Vivienne Kathleen Carney[1] and James Cavalier Douglas (the executors), as her executors and trustees.

   [1]     Vivienne Kathleen Carney (Ms Carney) is also named as a second respondent in her capacity as beneficiary. The executors complained that the second and fourth respondents were unnecessarily joined as parties to this appeal. They took no part in it.

3. The will was admitted to probate on 13 November 2012.  The appellant, Grantley Thomas Aubrey Hall, and one of the executors, Ms Carney, are children of the deceased and beneficiaries of her estate. The fourth respondent, Geoffrey Gordon Elliott was the deceased’s second husband, widower and beneficiary.  He died after the judgment the subject of this appeal.[2]

   [2]    Hall v Carney (No 3) [2020] SASC 177.

4. In addition to seeking a barring order, the executors sought advice or direction from the Court pursuant to s 69 of the Administration and Probate Act 1919 (SA).

   Disposition of this appeal

5. The appellant has not shown that the barring order made under s 29(2) of the Trustee Act should not have been made, or that the advice or direction given under s 69 of the Administration and Probate Act 1919 (SA) should not have been given.

6. This appeal should be dismissed.  Our reasons follow.

   Introduction

   Disposition of this appeal

   Litigation over the estate

   The orders made in this case

   The hearing of this appeal

   The grounds of appeal

   Lord St Leonards’ Act, the Administration and Probate Act 1919 (SA) and the Trustee Act

   The judge may make such order as (s)he deems just

   Appeal ground 1 – the breadth of the s 29(2) discretion

   Appeal grounds 2 and 3 – inordinate or unreasonable delay

   Appeal ground 4 – the direction or order that the appellant pay costs

   Appeal grounds 5 and 7 – the Anzac Highway property

   Appeal ground 6 – the Dawson Avenue property income

   The re-exercise of discretion under s 29(2) of the Trustee Act

   Conclusion

   Litigation over the estate

7. The appellant disputed the will.  A probate action was commenced to have the will admitted to probate.  Following a trial, an order was made admitting the will to probate on 1 December 2011.[3]  Before the issue of the grant of probate, the appellant appealed to the Full Court against the order admitting the will to probate.  That appeal was dismissed.[4] 

   [3]     Carney v Hall (2011) 111 SASR 424 (White J).

   [4]     Hall v Carney [2012] SASCFC 76 (Gray J, Vanstone and Stanley JJ agreeing).

8. Under the will, Ms Carney was left various personal items as well as a dance studio business and real property at Dawson Avenue, South Plympton (the Dawson Avenue property).  Geoffrey Elliott was given a right of residence for a limited period in the deceased’s principal residence at Anzac Highway (the Anzac Highway property) after which the property fell into the residue.  The will gave Ms Carney an option to purchase the Anzac Highway property.  The residue of the estate was left to the three beneficiaries in equal shares. 

9. In 2013, the appellant commenced this action seeking further provision out of the estate pursuant to the Inheritance (Family Provision) Act 1972 (SA). That claim was resolved at mediation in July 2014. An order was made on 15 July 2014 for provision out of the estate to the appellant, which annexed terms of compromise which were made a rule of Court in the action.

10. Under the settlement, the appellant received a further legacy of $250,000.00 and certain agreed costs of the probate action.  The settlement also provided for the manner by which Ms Carney was to exercise her option to purchase the Anzac Highway property.  She later exercised her option to purchase the Anzac Highway property. 

11. In 2015, the appellant applied to enjoin the sale of the Anzac Highway property to Ms Carney.  The injunction was refused.  The appellant was ordered to pay the costs of the executors and Ms Carney (in her capacity as beneficiary). 

12. The sale of the Anzac Highway property settled on 7 October 2015. 

13. The appellant has asserted various causes of action against the executors concerning the sale of the Anzac Highway property.  He alleges that the sale was at an undervalue and that there was a failure by Ms Carney to properly exercise the option to purchase. 

14. No substantive claim has ever been prosecuted relating to the sale.  Though claims were set out in an interlocutory application which accompanied the appellant’s injunction application, they were not prosecuted after the injunction application failed in September 2015.

15. The executors nonetheless maintained that the appellant had foreshadowed claims against them and, from at least 7 December 2015, they told him that was their view.  The executors believe that the foreshadowed claims against them may be founded in negligence or devastavit.[5] They deny that they sold the Anzac Highway property to Ms Carney at undervalue, and they deny that they have acted in breach of their duties, or negligently, as the executors of the deceased’s estate.  On the contrary, they assert that they have acted in accord with the terms of the compromise which was made a rule of Court in this action.

    [5]     Justice Nye Perram, ‘The operations and present operation of the action in devastavit’ (FCA) [2021] Federal Judicial Scholarship 23: “What is a devastavit? Strictly from the Latin it means ‘he has laid waste’. The 4th edition of Stroud’s Judicial Dictionary defines a devastavit to be – and I quote – ‘a mismanagement of the estate of a deceased person by his legal representatives “in squandering and misapplying the assets, contrary to the duty imposed on them”; for which they shall answer out of their own pockets as far as they had, or might have had, assets of the deceased’ …”.

16. The appellant has said that he is investigating the liability of the executors and, until that is fully investigated, including by obtaining further detailed legal advice, the situation is uncertain.

    The orders made in this case

17. Following a hearing in May, on 24 September 2020 orders were made by Stanley J under s 29(2) of the Trustee Act so that various “Notified Claims” against the executors were “absolutely barred”.  In addition, the appellant was, on or after 5 January 2020, barred from instituting any proceedings against the executors in relation to those claims.

18. Stanley J also ordered that the executors were at liberty to administer the estate of the deceased without regard to the Notified Claims and that they were justified in distributing and should distribute the residuary estate of the deceased to the appellant and the first and fourth respondents, subject only to orders for costs.

19. In so far as is relevant, those costs orders included that the appellant’s share in the residuary estate be subjected to a deduction of $23,567.13 for the costs incurred by the executors in responding to the questions and requests raised by the appellant concerning the accounts and administration of the estate of the deceased and, instead, that that sum be distributed to the first and fourth respondents in equal shares.

20. In addition, the appellant was ordered to pay the costs of the executors of and incidental to their applications pursuant to s 29 of the Trustee Act to be taxed or agreed on a standard basis.

    The hearing of this appeal

21. The only proper parties to this appeal are the appellant and the executors.

22. Neither the second or fourth respondents, as beneficiaries, are proper parties to the appeal.

23. Although the appellant commenced this appeal by Notice of Appeal with attached grounds of appeal on 19 November 2020, which were then amended, he failed to adhere to the times specified by the rules of court, as well as times set by this Court.[6] An application to adjourn the hearing of the appeal was refused,[7] and at the hearing on 8 April 2021 another adjournment application was foreshadowed, but not pressed.[8]

    [6]     Hall v Carney [2021] SASCA 41 (15 January 2021).

    [7]     Hall v Carney (No 2) [2021] SASCA 42 (31 March 2021).

    [8]     At the start of the appeal the appellant applied to Livesey JA, asking that he disqualify himself from sitting on the appeal on the grounds of ostensible bias because of the orders he had made on 15 January and 31 March 2021 regarding the timetable for the filing of documents and the hearing of the appeal.  The Court of Appeal left the bench and, after a short adjournment, reconvened.  Livesey JA gave brief ex tempore reasons explaining why he declined to disqualify himself from sitting on the appeal.

24. The appellant filed his outline of argument on the morning of the hearing, just before the appeal commenced.  At the conclusion to the hearing, the appellant was given an opportunity to supplement his outline.  The appellant supplemented his outline on 22 April 2021. 

25. In his supplementary outline provided on 22 April, the appellant pointed to the probate action, decided nearly a decade ago, as part of the “historical context”.  In that action, the appellant had raised a number of “suspicious circumstances” surrounding the execution of the will, though he did not allege fraud or undue influence.  His argument was that those propounding the will were required to disprove fraud or undue influence.  White J disagreed, holding that they needed only to prove that the deceased knew and approved of the contents of the document as her will.[9]   In his supplementary outline the appellant also emphasised the adverse credit findings made by White J against Ms Carney.  It is difficult to see the relevance of those findings on this appeal.  White J accepted that there was antipathy between the appellant and Ms Carney. White J concluded:[10]

    … I considered that Mrs Carney’s evidence should be treated with some circumspection. However, after treating her evidence with caution, I do consider that, on the matters which are critically at issue in this trial, it may generally be regarded as reliable.

    In general, Mr Hall’s evidence seemed to reflect a considerable amount of introspection and self-absorption. I note that in a letter of 30 January 2001 to Mr Hall’s wife, [the deceased] described Mr Hall as having been a “distant” son and a person who [was] himself absorbed. On the evidence I heard in this trial, I consider both descriptions to be fair.

    [9]     Carney v Hall (2011) 111 SASR 424, [31]-[32], citing, amongst others, the decision of Doyle CJ in Roos v Karpenkow (1998) 71 SASR 497.

    [10]   Carney v Hall (2011) 111 SASR 424, [68]-[69].

26. It may be that the appellant was hoping to emphasise what he claimed was both a failure by the executors to properly administer the estate and a “conflict of interest” in that they “repeatedly and substantially favoured” Ms Carney.  Whatever his grievances about these matters, the difficulty for the appellant is that any potential conflict was not raised below and is not in issue on this appeal and, to the extent that it may have potentially informed findings made by Stanley J, those findings favoured the executors.

27. The respondent replied to the supplementary outline provided on 22 April, rejecting the appellant’s attempt to raise new points for the first time on appeal,[11] particularly concerning the suggestion that the terms of compromise were susceptible to being set aside for misrepresentation or did not apply.[12]  The executors emphasised that the appellant had taken the benefit of the compromise (including the payment of $250,000) and claims such as the complaint about the exercise of the option assumed that the terms of compromise were valid and enforceable.

    [11]   Citing well-known authority such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; O’Brien v Komesaroff (1982) 150 CLR 310, 319; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483; Coulton v Holcombe (1986) 162 CLR 1, 7-8; Whisprun v Dixon (2003) 77 ALJR 1598.

    [12]   The appellant had argued that the terms of compromise, particularly the mutual releases, should be read down, relying on Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 and Wichmann v Dormway Pty Ltd [2019] QCA 31.

1. In his 22 April submissions, the appellant foreshadowed further submissions. 

2. On 28 April 2021, the appellant sought more time in which to file further written submissions which were to “exceed the standard 20 pages, to a limit of 30 pages”.  Amongst other matters, the appellant deposed to his chronic health issues and time spent addressing these and the demands of other litigation which progressed at around the same time as this appeal.  He said that he had not slept on the night before the hearing of the appeal, and “was at a significant physical disadvantage during the hearing”.

3. On 6 May 2021, the appellant again applied to put further submissions, contending that further “authorities have recently been uncovered and have not yet been fully analysed, and analysis of further relevant authorities still would be possible with more time”.  The submissions and accompanying affidavit therefore, he said, “lack detail and should not be regarded as complete because they are not”.  The appellant responded to the executors’ reliance on authority precluding new points being taken for the first time on appeal by criticising the conduct of his former solicitors and counsel and contending, in any event, that the “most exceptional circumstances do exist in this case”.[13]  The appellant made, amongst others, a lengthy submission about the recent decision of the Irish Supreme Court in Ennis v Allied Irish Banks plc where the effect of that decision was explained in the following way:[14]

   Having outlined relevant principles concerning new arguments, and new evidence, applications on appeals generally, this judgment will deal briefly with the particular considerations which arise in appeals from interlocutory orders, and then in certain other types of proceedings heard on affidavit, including those by way of summary summons. The judgment seeks to explain why the application of the criteria in these types of case differs somewhat from, or can be seen as a development of, those criteria applicable in plenary proceedings. Having dealt with the principles generally, then in interlocutory matters, and then specifically in the case of summary proceedings, the judgment turns finally to the approach adopted by the Court of Appeal in this matter.

   [13]   No doubt referring to University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483.

   [14]   Ennis v Allied Irish Banks plc [2021] IESC 12, [12] (MacMenamin J, with whom O’Donnell, Dunne, Charleton and O’Malley JJ agreed).

4. Ennis is a case addressing when new arguments and new evidence may, in certain circumstances, be adduced on an appeal against a summary judgment or interlocutory order, rather than an appeal against an order made “in plenary proceedings”. With all respect to that Court, it is doubtful whether it is of any direct assistance to the appellant on an appeal against a barring order made under s 29(2) of the Trustee Act. 

5. The appellant is now unrepresented on his appeal.  He acknowledges and appreciates “that the Court has taken steps to assist in the preparation of my case on appeal, including regarding various formalities, verbal assistance and the opportunity to make further written submissions”.

6. The appellant is an intelligent and articulate man, well-acquainted with the issues in this case and the evidence contained in the four volumes which comprise the appeal book.  Whilst he must undoubtedly have been experiencing some stress and fatigue at the hearing of the appeal, he remained clear, logical and resolute in his presentation.

7. It must be recalled that the appellant declined the offer of an adjournment in January 2021 so as to enable him to brief new solicitors and counsel for the appeal. It should also be recalled that the appellant commenced this appeal in November 2020 knowing that he was a plaintiff in other proceedings and that his work on the appeal may be impeded by those proceedings.  He must certainly have known that his work on the appeal would be impeded by his chronic ill-health.  The directions made before the hearing threw the burden of preparing the appeal books and other material onto the executors.  Indeed, the executors were required to file their outline before seeing the appellant’s outline.

8. Down to the time of his supplementary submissions dated 22 April 2021, the appellant was given five months in which to prepare written submissions.

9. The concerns expressed about conflict of interest and whether the terms of compromise are binding represent good examples of new points being raised for the first time on appeal which might have been addressed by argument and evidence below.  The appellant must be held to the case put below. 

10. Whether represented or not, a party cannot expect that further opportunities to make written submissions will be given without obtaining the consent of the opposing party and the leave of this Court.  As a general proposition, the Court will not entertain further submissions lodged without consent and leave. In our view, the appellant has had a fair and just opportunity to prepare his appeal and to provide written submissions:[15]

    The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute.[16] These wider interests are reflected in s 37M(2) of the Federal Court of Australia Act 1976 (Cth). As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the “just resolution” of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the FCA.  Integral to a “just resolution” is the minimisation of delay and expense.[17]  These considerations inform the rejection in Aon of the claimed “right” of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim.  The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed.  Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate.[18]

    [15]   UBS AG v Tyne (2018) 265 CLR 77, [38] (Kiefel CJ, Bell and Keane JJ).

    [16]   Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, [14] (Gleeson CJ, Gummow, Hayne and Crennan JJ), citing Ridgeway v The Queen (1995) 184 CLR 19, 74-75 (Gaudron J); Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 212 [95] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

    [17]   Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [98] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

    [18]   Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [112].

11. We dismiss the applications dated 28 April and 6 May 2021.

    The grounds of appeal

12. The grounds of appeal may be summarised as follows:

    1.The Judge erred in holding under s 29(2) of the Act that the Court did not have any discretion to extend the time in which the Notified Claims could be filed, and he should have found that further time could be allowed for the Notified Claims to be filed.

    2.The Judge erred in finding that there had been inordinate or unreasonable delay in prosecuting the Notified Claims during the previous five years.

    3.The Judge erred in finding that there had been inordinate or unreasonable delay by the appellant in prosecuting the Notified Claims in the six-month period after the Notice was served pursuant to s 29 of the Act.

    4.The Judge erred in finding that the executors were justified in making an adjustment of $23,567.13 to reflect the appellant’s liability for costs unreasonably incurred.

    5.The Judge erred in finding that the interests of justice did not require that the appellant be given a further opportunity to bring claims in relation to the exercise of an option to purchase property on Anzac Highway.

    6.The Judge erred in finding that the devisee of real property was entitled to the income derived from the property accruing after the death of the testator.

    7.The Judge erred in dealing with the claims having regard to the way in which they were advanced in the hearing before him by counsel rather than by reference to the formulation in affidavits filed on behalf of the appellant.

13. Before addressing these, it is first appropriate to consider the legislation under which Stanley J made orders and gave advice or direction to the executors in this case.

    Lord St Leonards’ Act, the Administration and Probate Act 1919 (SA) and the Trustee Act

14. Trustees must adhere to the terms of the trust and, in the case of executors and trustees appointed under a will, carry out the wishes of the testatrix or testator as expressed in the will.[19]  However, executors must exercise caution where, having assumed control of trust property, they are aware of claims concerning that property. To distribute the property of the estate in those circumstances may expose the executors to personal liability should these claims subsequently prove to be well-founded.[20]  In earlier times, potential difficulties such as these were managed in the course of an “administration action”.

    [19]   The duty to adhere rigidly to the terms of the trust has been described as “perhaps the most important duty” of a trustee: Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484, [32].

    [20]   Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115, 127 (Lord Romer delivering the judgment of the Court); Dickman v Holley; Re; Estate of Simpson [2013] NSWSC 18, [189] (White J).

15. The jurisdiction of this Court, as a Court of Equity, to exercise supervisory jurisdiction in the administration of trusts is of long-standing.[21] Executors or administrators may apply “for aid and relief in the administration of estates” whenever they “cannot safely administer the estate, except under the direction of a Court of Equity”.[22] It has been said that it is the “duty of the Court to enforce the execution of trusts”,[23] and that “the execution of a trust should be under the control of the Court”.[24]  In lieu of the old “administration action” by which a “Court would order that the trust … be specifically performed under its supervision”,[25] Lord St Leonards LC introduced legislation in England during the 1850s enabling trustees to obtain the “opinion, advice or direction” of the Court on questions concerning the administration of trusts and,[26] importantly, where executors and trustees then act on that advice they are indemnified.[27]

    [21]   See generally, Chief Justice Kiefel, “Judicial Advice to Trustees: its Origins, Purposes and Nature” (2019) 42(3) Melbourne University Law Review, 993.

    [22]   Joseph Story, Commentaries on Equity Jurisprudence, As Administered in England and America (Andesite Press, 1836) vol 1, 514 (543).

    [23]   Adair v Shaw (1803) 1 Sch & Lef 243, 262 (Lord Redesdale LC).

    [24]   Morice v Bishop of Durham (1805) 10 Ves Jr 522; 32 ER 947, 954 (Lord Eldon LC).

    [25]   McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623, 633 (Young J).

    [26]   Law of Property Amendment Act 1859, 22 & 23 Vict, C 35, s 30 (Lord St Leonards’ Act).

    [27]   Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, [69] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

16. Aspects of Lord St Leonards’ Act were adopted in South Australia during the 1880s and 1890s:[28] trustees and executors may apply for advice or direction under s 69 of the Administration and Probate Act1919 (SA). It is well-settled that the jurisdiction or power which is exercised is concerned with the protection of the trust and its interests, as well as the protection of the trustee: advice ensures that “the interests of the trust will not be subordinated to the trustee’s fear of personal liability for costs”.[29]

    [28]   In 1880, s 28 of the Public Trustee Act 1880 (SA) was enacted, empowering the Public Trustee to obtain the advice of the Court on questions concerning the administration of trusts. In 1891, this provision was expanded to apply to “any trustee, executor or administrator” as well as the Public Trustee: see Administration and Probate Act 1891 (SA), s 91. Section 29 of the Trustee Act 1936 (SA) was first enacted in 1893 as s 22 of the Trustee Act 1893 (SA).

    [29]   Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, [71] (Gummow ACJ, Kirby, Hayne and Heydon JJ), [196] (Kiefel J, as she then was).

17. The Court determines what is “in the best interests of the trust estate”,[30] as “an exception to the Court’s ordinary function of deciding disputes between competing litigants”[31] and does not conduct an inter partes trial on the issues.[32]

    [30]   Marley v Mutual Security Merchant Bank & Trust Co Ltd [1991] 3 All ER 198, 201 (Lord Oliver).

    [31]   Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, [64] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

    [32]   Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, [74] (Gummow ACJ, Kirby, Hayne and Heydon JJ).

18. In addition, by what is now s 29(1) of the Trustee Act, executors and trustees may by notice in the form that “would have been given by the court in an administration action” call for any claims, after which they may distribute “the estate of the deceased person” or “the trust property” having regard only to the claims about which they have notice.  In that event, they “shall not be liable for the estate or property or any part thereof so distributed to any person of whose claim [they] had no notice at the time of the distribution”.[33]

    [33]   See Newton v Sherry [1876] 1 CPD 246, 258 (Lindley J, as he then was).

19. One purpose of the s 29(1) statutory notice procedure is, as with the old administration action, to provide a measure of protection for the executor or trustee:[34]

    … by these proceedings under the Act, an executor is entitled to have, and in point of fact has, all the protection which he would have had under the old rule of Court, if the assets had been administered by such executor under the decree of the Court.

    [34]   Clegg v Rowland (1866) 3 LR 3 Eq 368, 375 (Sir Richard Malins VC).

20. Trustee protection is not the only relevant purpose.  The procedure is also intended to facilitate the administration of estates “without the expense and delay of a Chancery suit”.[35]

    [35]   Newton v Sherry [1876] 1 CPD 246, 257-258 (Lindley J).

21. Section 29 of the Trustee Act provides:

    (1)Where a representative or trustee has given notices such as would have been given by the court in an administration action for creditors, beneficiaries, and others to send in to the representative or trustee their claims against the estate of the deceased person or against the trust property, the representative or trustee may, at the expiration of the time named in the notices, distribute the estate of the deceased person or the trust property or any part thereof amongst the persons entitled thereto, having regard only to the claims of which he then has notice, and shall not be liable for the estate or property or any part thereof so distributed to any person of whose claim he had no notice at the time of the distribution.

    (2)Where a representative or trustee has received a claim or notice of claim against the estate of a deceased person or against a trust property, and he disputes the claim, that representative or trustee may give to the person making the claim, or giving the notice, a notice in writing that the claim is disputed, and requiring the claimant either to withdraw the claim or to institute proceedings to enforce it within six months of the service of the last-mentioned notice; and if the claim is not so withdrawn or prosecuted, the representative or trustee may apply by summons in chambers to any judge of the Supreme Court, on affidavit setting out the facts for an order that, as against such representative or trustee, the claim shall be absolutely barred, and any such judge may make such order as he deems just, and the order shall bind all persons whom it purports to affect.

    (3)Nothing in this section shall prejudice the right of any person to follow the estate or property or any part thereof into the hands of any person who has received it.

    (4)A representative or trustee desirous of giving notices under this section may, on application, obtain the direction of the Supreme Court, or of the Master thereof, as to what notices are proper to be given, and as to the mode of service.

    (5)The Supreme Court may require that notice be given of an application under subsection (4) to any person who has, in the opinion of the Court, a proper interest in the matter (but an order may be made, if the Court thinks fit, although no notice has been given of the application).

22. In the Australian Capital Territory, New South Wales and Victoria, these provisions are in the counterparts to the Administration and Probate Act1919 (SA).[36]  In Queensland, Tasmania, Western Australia and South Australia they are in the counterpart Trustee Acts.[37]  In the Northern Territory, they are in both.[38]

    [36]   Administration and Probate Act 1929 (ACT), s 65; Probate and Administration Act 1898 (NSW), s 93; Administration and Probate Act 1958 (Vic), s 30.

    [37]   Trusts Act 1973 (Qld), s 68; Trustee Act 1989 (Tas,) ss 25A(5) and (6); Trustees Act 1962 (WA), s 64; Trustee Act 1936 (SA), s 29(2).

    [38]   See generally, Ludwig v Public Trustee (2006) 68 NSWLR 69, 76-79 (Campbell J, as he was) and Hall v Carney (No 3) [2020] SASC 177 (Stanley J). Stanley J points out that the history of these provisions in Australia is traced in the Queensland Law Reform Commission Report “Administration of Estates of Deceased Persons” No. 65, April 2009, volume 2, chapter 22 at pages 326-340.

23. Whilst Lord St Leonards’ Act contained no provision analogous to s 29(2) of the Trustee Act, it may be seen as complementary to the giving of notice under s 29(1). The purpose of these provisions is to facilitate the just administration of estates[39] by “conferring a protective mechanism on executors”[40] after allowing claimants a reasonable opportunity to press their claims. That is, after having by notice given time for claims to be notified under s 29(1), it is then necessary to deal with those claims which are notified where they have not been prosecuted.

    [39]   Ludwig v Public Trustee (2006) 68 NSWLR 69, [289] (Campbell J).

    [40]   Hall v Carney (No 3) [2020] SASC 177, [47] (Stanley J).

24. The mischief to which s 29(2) was directed was explained by Sir John Mackey when introducing the Victorian counterpart legislation in 1911. Having observed that the Victorian counterpart to s 29(1) had “worked very well” he warned that:[41]

    … but now some creditors are resorting to a new method of avoiding a very reasonable section.  They give notice of their claims, but will not prove them, in the hope that by that means the executor or the administrator will be induced to make some compromise with them.  It almost amounts to a blackmailing proceeding. … He will not take any steps to prove it, and the executors will have to wait for six years to pass for the claim to be barred.  In the meantime the beneficiaries have to do without the property.  What I propose is that the executor or administrator, upon receiving notice of a claim, shall give notice to the claimant to take proceedings to prove his claim within three months. 

    [41]   Victoria, Parliamentary Debates, Legislative Assembly, 19 October 1911, 2023.

1. The operation of the legislation has been explained as follows:[42]

   If there are disputable claims, then … the executor has the right under [s 29(2)] to call upon a claimant to prosecute his claim and, if he fails to do so, the executor is entitled to apply to the Court for an order barring the claim.

   [42]   The Will of Walker (1943) 43 SR (NSW) 305, 307 (Nicholas CJ in Eq).

2. The statutory mechanism under s 29(2) has been described as a “special procedure”:[43]

   … for the benefit of administrators, a procedure which is not available to ordinary persons.  Presumably, administrators were given this advantage because of the special difficulties of their position; uncertain claims might make it impossible for them to ascertain the amount of the estate assets so as to have duty assessed and paid, and might also prevent beneficiaries from obtaining payment of moneys or transfer of properties to which they would otherwise be entitled.We think, therefore, that it is proper to give the section its full, natural meaning as applying in every case where there is a claim of any sort against the administrator as such, requiring to be met by him in the due course of his administration, whether it affects the assets of the estate directly or affects them indirectly through the administrator. In either case, the administrator cannot safely distribute without the protection of the Court, and that protection is as valuable in the one case as in the other.   When the section is applicable, and is applied, to a claim in respect of which the administrator is personally liable, the effect will necessarily be to bar the personal liability as well as to exonerate the assets from the claim for indemnity.  The section avails for the protection of the administrator throughout the whole course of the performance of his duties as administrator.  

   [43]   Re Long (Deceased) [1951] NZLR 661 (CA), 672.

3. The policy underlying this legislation was later explained as:[44]

   … the very sound one of permitting deceased estates to be administered expeditiously and that administrators should not be unduly delayed from completing the task of administration and distribution when creditors decline to act diligently.

   [44]   Re Hanayama (unreported, Supreme Court of Queensland, White J, 11 November 1998), [25].

4. The term “claim against the estate” in s 29(2) and its interstate counterparts has been construed as having a wide meaning and as extending to claims against the representative or trustee for breach of duty.[45] Initially, this appeared to be confined to “monetary or proprietary claims”, but it did not extend to a claim that a grant of probate should be revoked, or that the executor had no rights to administer the estate at all.[46] 

   [45]   Re Timm (Deceased) [1912] VLR 460, 462 (Cussen J); Re Barber (Deceased) [1924] VLR 123, 126 (Cussen ACJ); Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee of New Zealand [1942] AC 115, 125; Re Long (Deceased) [1951] NZLR 661 (CA), 670-671; Ludwig v Public Trustee (2006) 68 NSWLR 69, 80-81 (Campbell J); Re K (2002) 171 FLR 286, 295 (Angel J).

   [46]   Re Timm (Deceased) [1912] VLR 460, 462 (Cussen J).

5. A similarly wide meaning has been given to the term “claim”, and it is accepted that it may encompass assertions.[47]  Subject to the exercise of its discretion, the Court may “absolutely” bar claims against the estate so that executors may complete administration of the estate, thereby providing both certainty and finality for all concerned.

   [47]   McGrath v Troy [2010] NSWSC 1470, [92] (White J).

6. Before addressing the issue whether the Court is confined under s 29(2) to either making or not making a barring order, it is appropriate to explain why it is only the breadth and exercise of the s 29(2) discretion that is primarily in issue in this case.

   The judge may make such order as (s)he deems just

7. In this case there is no dispute that the executors are representatives or trustees who are entitled to invoke the statutory procedure created by s 29 of the Trustee Act. 

8. On the application of the executors, a Master authorised the giving of notices on 5 July 2019 under ss 29(1) and 29(2) which specified certain “Notified Claims” which the executors disputed. Those notices gave the appellant the six-month period specified by s 29(2), that is until 5 January 2020, to withdraw or institute proceedings to enforce those claims or face the risk of a barring order being made in respect of them. There was no appeal against the Master’s orders.

9. There is no dispute that the appellant did not withdraw those claims or institute proceedings to enforce them within the six-month time-frame.  Rather, on 5 January 2020, he wrote to the executors reiterating his intention to commence proceedings against them.

10. In consequence, there was no dispute that the conditions precedent to the making of a barring order under s 29(2) of the Trustee Act were satisfied. 

11. What was in issue was the exercise of discretion in favour of making a barring order. This largely turned on whether there had been an error in the interpretation of s 29(2), as well as whether various suggested other, specific errors had been made.

    Appeal ground 1 – the breadth of the s 29(2) discretion

12. Appeal ground 1 challenges the finding that the Court had no discretion to extend the time within which the Notified Claims could be filed. 

13. There is no explicit conferral of a power to extend the six-month time-frame stipulated by s 29(2). The Judge distinguished the language used in other jurisdictions which explicitly confers power to extend the time within which proceedings may be commenced.[48] For example, his Honour referred to s 64 of the Trustees Act 1962 (WA) which expressly confers a power to extend time. In The Public Trustee v Cenin,[49] the Court declined to extend time, finding that there was no realistic possibility that the defendant could institute and prosecute proceedings with the necessary diligence.

    [48]   Trusts Act 1973 (Qld), s 68(3); Administration and Probate Act 1958 (Vic), s 30(3); Trustees Act 1962 (WA), s 64(3).

    [49]   The Public Trustee v Cenin [1999] WASC 1020 (McKechnie J).

14. Similarly, by s 30(3)(a) of the Administration and Probate Act 1958 (Vic), a power to extend time is expressly conferred on the Court:

    (2)After the expiration of the said period of three months such personal representative may apply to the Court for an order to some such effect as hereinafter in this section mentioned.

    (3)Upon the hearing of such application the Court, if not satisfied that such proceedings as aforesaid have been taken and are being duly prosecuted, may—

    (a)     order that the said period be extended; or

    (b)     order that the claim of any person so served with notice of the application be for all purposes barred; or

    (c)     make any further or other order enabling the estate to be distributed or dealt with without regard to the claim; and

15. In the case of In re Barber (Dec’d), decided under the Victorian precursor, s 31 of the Trusts Act 1915 (Vic), Cussen ACJ extended time for the following reasons: [50]

    On the whole, I have come to the conclusion that it is best for all parties that the respondent, who knows the facts better than anyone else, should bring the matter to finality by taking proceedings. The administrator is under a duty to bring matters to a conclusion for the purpose of distributing the estate; and, as I have said, I think that the matter can best be dealt with in proceedings initiated by the respondent, in which he can claim a declaration that he is the beneficial owner of the property, or that he has a charge or other right in respect of some portion of the moneys to be realized by a sale of the land, or can make such other claim as he may be advised. The matter is, however, not free from difficulty, and I think I should make an order that the time for taking proceedings be extended.

    [50]   In re Barber (Dec’d) [1924] VLR 123, 126-127.

16. By contrast, in the matter of Re K, decided under s 97(2) of the Administration and Probate Act 1969 (NT), Angel J declined to exercise the power to extend time. He made a barring order for the following reasons:[51]

    Looking then at the relevant facts and circumstances of this case, including the issue that a proceeding would be some 14 months out of time, it is necessary to examine whether justice would be served by an action against the estate. Any action against the estate would require a determination of the issue of paternity, a determination which in my opinion above is doomed to fail. To this must be added the circumstance that the putative father has been deceased for some 27 years and his closest relative, his sister, is also deceased. Any proof as to paternity would require witnesses, such as may be still alive, to give evidence in respect of a period of almost 30 years ago, and further any DNA testing, if possible, may require exhumation of the deceased’s remains. Coupled with these difficulties are the circumstances that the estate is sitting dormant, waiting for the resolution of this matter, that beneficiaries who presently are entitled to the estate are being prevented from receiving their entitlements and are suffering hardship, and that the administrator is prevented from completing his duty in distributing the estate. Taking all of these relevant facts and circumstances into consideration, I am of the view that the interests of justice are not served by an exercise of my discretion allowing an extension of time in favour of K.

    [51]   Re K (2002) 171 FLR 286, 295.

17. We were referred to no authority which is directly on point. Neither side pointed to any decision which considers legislation in terms similar to s 29(2) and which addressed its proper meaning and effect. We accept that the difference in language between the South Australian provision and other Australian provisions requires careful consideration. We must start with the context.[52] 

    [52]   Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

18. This provision is beneficial, intended to supplement the long-standing, broad power of the Court to supervise and facilitate the proper administration of estates and trusts. Rather than require that an administration action be commenced, s 29(2) furnishes the representative or trustee with a “special procedure” designed to complement the scope for notice to be given under s 29(1), calling on claimants to notify of any claims they may have against the estate, to then withdraw or bring those claims and, ultimately, to ask the Court to make an order by which those claims are “absolutely barred”.

19. As the authorities show, the purpose of these provisions and the “special procedure” is multi-faceted.  Whilst they protect a representative or trustee, they are also designed to provide claimants with a reasonable opportunity to make claims.  The procedure also serves an important public interest.  It is manifestly in the public interest that estates and trusts be duly administered with any associated time and expense minimised. It is not in the interests of beneficiaries, trustees or the broader community that administrations be delayed whilst claimants consider their options, or worse, hold off making claims in the hope of extracting a ‘commercial settlement’ driven by the desire or need to finalise an estate.

20. When these purposes are considered, particularly against the history of the administration action and the broad supervisory power of the Court, it would represent a marked change in approach if the discretionary capacity of the Court to facilitate the proper administration of estates and trusts which are potentially subject to claims was constrained to simply either making, or not making, a barring order after six months.

21. The six-month time-frame specified in s 29(2) is nevertheless important. It is not arbitrary. It represents the Parliament’s judgment as to the period of time within which many, probably most, claims can and should be commenced. As has been explained:[53]

    A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.

    [53]   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 552-553 (McHugh J), in the slightly different context of limitation statutes.

22. Against this brief, general review of the statutory context one must then consider the words Parliament used. To recapitulate, after the six-month notice has been served and the notified claims have not been “withdrawn or prosecuted” in that time-frame, by s 29(2) of the Trustee Act:

    … the representative or trustee may apply by summons in chambers to any judge of the Supreme Court, on affidavit setting out the facts for an order that, as against such representative or trustee, the claim shall be absolutely barred, and any such judge may make such order as he deems just, and the order shall bind all persons whom it purports to affect.

23. The executors were in this case permitted to apply for a barring order, but it remained for the Court to “make such order as [the Court] deems just”.  The use of the word “may” in this context clearly indicates the conferral of a discretionary power.  Then, any order which may be made “shall bind all persons whom it purports to affect”.

24. There is an interesting problem posed by the use of the word “such” in the phrase “such order”. On one view, the word “such” is directed only to the order that the judge “deems just”. On that view, the breadth of the discretion is particularly clear. Having said that, the context for the exercise of discretion can only be the matters outlined by s 29(2) and, principally, the application made for a barring order.

25. Alternatively, the word “such” is intended as a reference back to the initial mention of an order, being “an order that, as against such representative or trustee, the claim shall be absolutely barred”.  That is, it is intended as a reference to the kind of order sought by the representative or trustee.  Some support for this reading is given by the way in which reference is made in the same sub-section to “such judge”, after the initial reference to “any judge of the Supreme Court”.  A similar definitional technique, now also largely abandoned, is the archaic use of the word “said”, as in “said order” or “said judge”.  The use of the word “such” in this way is a well-known example of what might now be deprecatingly described as “legalese”.

26. Whilst the use of the word “such” in the phrase “such order” is probably intended to refer to the kind of order sought, and therefore a barring order, we doubt whether the difference in emphasis between the two readings makes any real difference to the breadth of the discretion conferred.  The phrase simply means that the Court “may make [a barring order] as [it] deems just”.

27. Indeed, it is accepted that the conferral of the discretionary power to “make such order as [the Court] deems just” includes the power to decline to make any order. That was the basis upon which Stanley J proceeded and, with respect, he was right to do so. The Court is authorised to make an order as it deems just. It is difficult to conceive of a broader grant of discretionary power. Whilst the order must be concerned with barring claims which have not been “withdrawn or prosecuted”, the language of s 29(2) does not constrain the Court to simply make, or not make, an order in any binary fashion.

28. It is a well-recognised principle of statutory interpretation that “a power conferred by Parliament carries with it the power necessary for its performance or execution”.[54] So, in Re Sterling it was held that the power to extend the time for compliance with a bankruptcy notice carried with it the power to set aside the notice.[55]  The absence of an explicit power to extend time is, in our view, relevant but not decisive.  The conferral of a power to make an order, or to not make an order, must also include the discretionary power to mould an order so as to ensure that the “special procedure” operates in a manner that is both just in the circumstances proved before the Court and consistent with the objectives evident in the legislation more broadly.

    [54]   Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125, 130 (Lockhart J): “Ubi aliquid conceditur, conceditur etiam et id sine quo res ipsa non esse potest” and the cases there cited.

    [55]   ReSterling; ExparteEsandaLtd (1980) 44 FLR 125.

29. It is helpful to contrast the approach taken by Angel J in Re K.[56] As mentioned, that case concerned s 97(2) of the Administration and Probate Act 1969 (NT) which was in the following terms:

    If, after that period of 6 months has expired, that person does not satisfy the Court that he or she is duly prosecuting his or her claim, the Court may, on application by the executor or administrator, make an order barring the claim against the executor or administrator, subject to such conditions as appear just, or make such other order as the Court thinks fit.

    [56]   Re K (2002) 171 FLR 286.

30. Angel J was prepared to assume that he had the power to grant an extension, which involved “more than simply weighing respective prejudices between parties”.[57]  Whilst the use of the words “subject to such conditions as appear just” and “make such other order as the Court thinks fit” tend to suggest some flexibility in the exercise of discretion, it may be doubted whether they add much to a discretionary power conferred by the words to “may make [a barring order] as [the Court] deems just”.

    [57]   Re K (2002) 171 FLR 286, [40] (Angel J).

31. It is not hard to imagine cases where, for whatever good reason, a claim has not been commenced within the stipulated six-month time-frame but institution is imminent. Alternatively, part, but not all, of the claim may have been commenced before the s 29(2) application is heard. If it is determined that the proper exercise of discretion does not warrant making a barring order, is the Court really to be constrained to simply not make any order at all? In our view, that does not accord with the proper meaning and effect of the discretionary power conferred by s 29(2) to make such orders as the Court deems just.

32. There must be many situations where it is desirable that an order be made under s 29(2) which will ensure that an imminent claim, or the whole of a claim, is commenced and prosecuted within a specified, further time-frame.

33. It is not necessary to confine the broad exercise of discretion conferred by s 29(2) to make or not make an order, or to make orders granting or refusing an extension of the six-month period. The Court has the discretionary power to mould and make any order it deems just in the proper exercise of its judicial discretion. In some cases, that may require adding conditions to an order so that, should the claimant fail to comply with those conditions, a barring order may well be made.[58]  In other cases, it may be appropriate to defer the making of any order, pending an adjourned period within which certain defined steps must be taken by one or other of the parties.  Whilst these kinds of orders may effectively grant further time, they are not orders simply extending time.

    [58]   In this jurisdiction, there has for many years been a marked reluctance to make “self-executing” orders, in part because of uncertainty about whether these orders are final or interlocutory in nature and in part because of uncertainty about whether actions dismissed pursuant to them can be reinstated, see by way of example only, Bailey v Marinoff (1971) 125 CLR 529, 530, 532; Lum v Su & Lee [1985] SASC 8023 (King CJ, with whom Matheson and Bollen JJ agreed); Annan v Wayne [1988] SASC 1053 (O’Loughlin J); Mohtar v Mohtar and Seputis (1988) 146 LSJS 377, 390 (von Doussa J); Pomery v Hand [1993] SASC 4134 (Olsson J).

1. However, where further time is potentially in contemplation, the six-month period represents an important touchstone.  The discretion must be exercised having regard to the underlying assumption by Parliament that most claims can and should be commenced within six months.  Administrations are not to remain in stasis.  There is a need for finality.  Any further time will therefore be comparatively short. The exercise of discretion may be assisted, but not confined by, the five matters considered by Bray CJ in Ulowski v Miller:[59]

   It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.

   [59]   Ulowski v Miller [1968] SASR 277, 280 (Bray CJ) a case of dismissal for want of prosecution. However, the case was cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 569 (Kirby J) on the question of prejudice.

2. In these circumstances, and with respect, we cannot agree that s 29(2) conferred no power to extend time or, indeed, to exercise the statutory discretion so as to mould barring orders in any manner the Court “deems just”.

3. Whilst that means that the appellant succeeds on appeal ground 1, whether he succeeds generally depends upon a fresh exercise of discretion by this Court. That will be assisted by a consideration of the other appeal grounds. They raise the considerations which the appellant contends are relevant to the exercise of discretion under s 29(2), including as to whether he should be given any more time.

4. In particular: important considerations bearing on the exercise of discretion in this case include whether there has been inordinate delay, the explanation for any delay and whether any of the notified claims are reasonably arguable. 

5. Lest it be overlooked, it is worth emphasising that the imposition of a six‑month time-frame, and the facility for the making of a barring order if claims are not “withdrawn or prosecuted” in that time-frame, envisage that reasonably arguable claims may well be barred, particularly if there has been inordinate, unexplained delay.  Similarly, if notified claims have not been shown to be reasonably arguable and they have not been “withdrawn or prosecuted” in the requisite time-frame, it will usually be hard to see why they should not be barred. 

6. Whilst, as a general proposition, it will be for a representative or trustee on an application made under s 29(2) to convince the Court that a barring order should be made, where the claimant has failed to withdraw or prosecute claims within six months, the claimant will come under an evidentiary onus to demonstrate why no order should be made. That is, to address matters that will often be better known to the claimant rather than the executors, such as the basis and strength of the proposed claims and the reasons for the delay in prosecuting them.

7. Nonetheless, s 29(2) confers a broad judicial discretion and each case must depend upon its own, particular circumstances.

   Appeal grounds 2 and 3 – inordinate or unreasonable delay

8. The deceased died in 2007, the will was admitted to probate in 2012, the appellant’s first claim against the estate was settled in 2014 and by 2015 he was agitating complaints about the sale of the Anzac Highway property.

9. Stanley J found that there had been a “lengthy period of time”, of at least seven to eight years,[60] when the appellant was represented by a solicitor (and, when necessary, counsel) and able to work with that solicitor “without any significant problems”.[61]

   [60]   Eleventh affidavit of Grantley Thomas Aubrey Hall affirmed 7 April 2020 (FDN 73), [5].

   [61]   Tenth affidavit of Grantley Thomas Aubrey Hall affirmed 4 June 2019 (FDN 63) at paragraph E(d).

10. In particular, Stanley J was simply not satisfied that, whatever the appellant’s problems, including with chronic ill-health, he could not prosecute whatever claims he wished to make in the period of at least five years commencing at around the time of the failed injunction application.  It will be recalled that claims made in August 2015 by interlocutory application were effectively “abandoned”.[62]  In the opinion of Stanley J, the appellant has “prevaricated for years” and there has been “inordinate delay” by him.[63]

    [62]   Hall v Carney (No 3) [2020] SASC 177, [78].

    [63]   Hall v Carney (No 3) [2020] SASC 177, [74]-[83].

11. So far as the six-month period under s 29(2) is concerned, the Master’s reasons made it clear that the appellant had to act within the six-month period. Stanley J referred to the “various excuses” given by the appellant during this period, principally relating to his chronic ill-health. However, whilst “not unsympathetic”, the Court had to “limit” the “indulgences it can grant on this ground” where these health problems “date back to at least December 2013”.[64]  Importantly, new solicitors filed a notice of acting in February 2020 after being instructed in December 2019.  The retainer with his former solicitors had ended in October 2018.  Stanley J was critical of the appellant’s attempts to secure new representation as well as of the failure to commence proceedings in the “more than six months since the new solicitors have been engaged”.[65]

    [64]   Hall v Carney (No 3) [2020] SASC 177, [81].

    [65]   Hall v Carney (No 3) [2020] SASC 177, [82].

12. Having reviewed the evidence and the submissions made by the parties, we are satisfied that the appellant has, as Stanley J described it:[66]

    … caused very considerable delay in the administration of the estate in circumstances where the grant of probate of the will occurred about seven and a half years ago, and where the deceased died over 12 years ago.

    [66]   Hall v Carney (No 3) [2020] SASC 177, [73].

13. The appellant identified no error in this reasoning and simply urged us to take a different view of the evidence.  We decline the invitation.  In our view, the appellant has engaged in egregious delay without any satisfactory explanation over many years, including during the six months ending in January 2020.  We find that the appellant has not properly explained his failure to institute proceedings within the six months preceding 5 January 2020. 

14. Whatever the position in the years and months preceding January 2020, as Stanley J recognised, afterward the appellant had time to institute his claims, or at least to properly formulate them. Even allowing for the demands of his other proceedings (in which he has had the assistance of his wife, solicitors and counsel) and chronic ill-health, there was no good explanation for the appellant’s ongoing delay.

15. Indeed, we are not satisfied that the appellant will ever be in a position to prosecute his claims with the necessary expedition. 

    Appeal ground 4 – the direction or order that the appellant pay costs

16. The parties conducted a costs mediation on 9 August 2017 at which all costs issues to that date were resolved.  For the later period 10 August 2017 to 4 February 2020, the appellant maintains that he should not have been required, in effect, to meet half the fees incurred by the executors addressing various questions, requests and correspondence from him. 

17. Without challenging that there was power to give advice or direction on the issue, and without directly challenging any particular finding made, the appellant asserts in varying ways that Stanley J “erred in finding that the [e]xecutors were justified in making any adjustment”.

18. We may commence with the right in a beneficiary to see trust documents, and to be kept reasonably informed by trustees.[67]  That does not mean that a trustee must answer every request, or meet every demand for information, because a trustee must duly administer the trust estate for the benefit of the beneficiaries as a whole.[68]  Where a particular beneficiary requires that trustees or executors go to special trouble, they need not do so unless the beneficiary meets the reasonable costs incurred.[69]

    [67]   Gray v Guardian Trust Australia Ltd [2003] NSWSC 704, [34] (Austin J).

    [68]   Gray v Guardian Trust Australia Ltd [2003] NSWSC 704, [39] (Austin J).

    [69]   Williams v Stephens (unreported, Supreme Court of NSW, Young J, 24 March 1986).

19. In addition, and as a corollary of the obligation to keep beneficiaries reasonably informed, trustees and executors must keep proper accounts and records, which are:[70]

    … unambiguous, clear and distinct so as to prove accurate information to the beneficiaries sufficient to inform them (and the court, if necessary) as to the state of administration, including the asset and liability position and the inflow and outflow of funds. Receipts, vouchers or other documentation must support each transaction.

    [70]   Gino Dal Pont and Ken Mackie, Law of Succession, (LexisNexis Butterworths, 2^nd edition, 2017), [12.30].

20. Against this background, Stanley J made clear findings to the effect that the executors were unreasonably burdened by the appellant’s questions, requests and demands for information:[71]

    I am satisfied that the executors have been burdened with a significant amount of work in dealing with repetitive requests for information by [the appellant].  He has unreasonably engaged in disputes with the executors about matters concerning the administration of the estate of the deceased, including continued disputes about facts and circumstances occurring in the administration of the estate before the settlement reached in July 2014 and embodied in the terms of compromise.

    …

    As is apparent from the above, many of [the appellant’s] foreshadowed claims deal either with matters resolved by the releases contained in the terms of compromise or with the events of 2015 relating to the sale of the Anzac Highway property where [the appellant] has elected not to pursue further the claims which he instituted in his interlocutory application of August 2015.  The executors have incurred significant legal costs, which would not otherwise have been incurred, in having to respond to [the appellant’s] continued disputation since 10 August 2017.  These requests have included unreasonable and repeated requests for information previously supplied.

    [71]   Hall v Carney (No 3) [2020] SASC 177, [124]-[125].

21. Having accepted evidence that the executors’ costs in dealing with these matters exceeded $47,000.00, Stanley J regarded it as inappropriate that the burden should effectively be met equally by the three residuary beneficiaries. In circumstances where, but for the appellant’s unreasonable conduct, these costs “would not have been incurred”, Stanley J determined that they “should be borne out of [the appellant’s] share of the residuary estate alone”. [72]

    [72]   Hall v Carney (No 3) [2020] SASC 177, [128].

22. However, Stanley J recognised that it was difficult to determine the correct amount, and so it was necessary to “wield a broad axe on a conservative basis”.[73]  Accordingly, his Honour held that he was satisfied that it was just to direct that the appellant should effectively meet one half of the costs the executors incurred in dealing with the appellant’s unreasonable requests and demands:[74]

    I am satisfied that it would be just to direct that the executors are justified in making an adjustment in the distribution of the estate to reflect [the appellant’s] liability for costs unreasonably incurred by the estate in an amount of half the fees incurred by the executors to 4 February 2020 in responding to Grantley, namely, an amount of $23,567.13.[75]

    [73]   Hall v Carney (No 3) [2020] SASC 177, [132]: “However, identifying the quantum of those expenses unreasonably incurred is not easy. The evidence before the Court does not permit a precise calculation”.

    [74]   Hall v Carney (No 3) [2020] SASC 177, [133].

    [75]   Being 50 per cent of $47,134.27.

23. Whether the matter was approached as one for advice or direction, or as an inter partes determination and order with all relevant parties before the Court, we can find no error in the approach taken or the allowance made.  It was not necessary that the appellant should first be warned that he may have to meet the costs associated with his unreasonable conduct.  If anything, the allowance unduly favoured the appellant. 

    Appeal grounds 5 and 7 – the Anzac Highway property

24. The appellant criticises the finding that his foreshadowed claims concerning the exercise of the option to purchase, and the sale of, the Anzac Highway property were not reasonably arguable. 

25. The appellant also criticises the failure to rent the Anzac Highway property during the 15-month period between the terms of compromise entered into on 15 July 2014 and the sale to Ms Carney which settled on 7 October 2015.

26. Stanley J commenced his consideration of this issue by pointing out that the claims were not new and had been agitated in 2015.  The claim that the option had not been validly exercised was interwoven with complaints that the Anzac Highway property should have been put onto the market for sale, and that it was sold at an undervalue because the sale price of $875,000.00 was less than the valuation obtained by the appellant which supported a price exceeding $1 million.

27. During the hearing of this appeal, the appellant put his claim that the option had not been validly exercised in a new way.  That renders it unnecessary to consider in any detail the way in which this argument was addressed by Stanley J.  In any event, the appellant did not articulate any error in the reasons of Stanley J on this point: the claim was then that the option had not been exercised in accordance with its terms and this assertion was based on material adduced at the time of the failed injunction application in August 2015.  That application failed in September 2015 because the Master found that there was no serious issue to be tried concerning the validity of the exercise of the option.[76]

    [76]   Hall v Carney (No 3) [2020] SASC 177, [107]-[109]. The executors had undertaken not to complete the settlement pending the hearing of the injunction application.

28. Before us, the appellant argued that the letter by which the option was exercised by the beneficiary, Ms Carney, on 30 July 2014 did not “express clearly and unequivocally the fact that [the beneficiary], then and there elected to acquire the [property]”.[77]  The letter was in the following terms:

    In accordance with paragraph 3 of the terms of compromise our client Ms Carney instructs that she wishes to exercise her option. Please find enclosed valuation from CBRE dated 11 July 2014. In accordance with that valuation our client seeks to agree the value of the Anzac Highway property at $745,000.00.

    [77]   Ballas v Theophilos (No 2) (1957) 98 CLR 193, 196 (Dixon CJ).

29. The argument laid emphasis on the words “wishes to exercise”, contrasting these with more emphatic language, such as “is now exercising”.  We reject the argument.  The proper interpretation of the letter requires an objective evaluation made in the context of the parties’ overt dealings with one another.  In the case on which the appellant relied, Ballas v Theophilos (No 2), Dixon CJ accepted that similar words used in one of the letters considered were sufficient, if standing alone, to represent an exercise of the option: the client there “desired to exercise the option”.[78]  Williams J agreed and explained:[79]

    Options have been held to have been exercised, where the context is sufficient, although the document, instead of stating unequivocally that “the optionee hereby exercises the option,” or words to that effect merely states that he desires or intends or is prepared to exercise it: Mills v. Haywood[80]; Nicholson v. Smith[81]; Collingridge v. Niesmann.[82]

    [78]   Ballas v Theophilos (No 2) (1957) 98 CLR 193, 195.

    [79]   Ballas v Theophilos (No 2) (1957) 98 CLR 193, 204-205 (Williams J).

    [80]   Mills v Haywood (1877) 6 Ch D 196.

    [81]   Nicholson v Smith (1882) 22 Ch D 640.

    [82]   Collingridge v Niewsmann (1920) 37 WN (NSW) 224.

30. In our opinion, the claim that the option was not validly exercised by the letter dated 30 July 2014 is not reasonably arguable.  By stating that Ms Carney “wishes to exercise her option”, her solicitors were clearly stating that she was, by their letter, doing so.  No other interpretation is reasonably open and nothing in the other correspondence and dealings between these parties suggests any scope for ambiguity or confusion.  Whilst we place little weight on it, it ought not be overlooked that in correspondence the following year, the appellant’s solicitor, no doubt on instructions, accepted that Ms Carney “has already exercised her option to purchase the property” and referred, amongst other matters, to this letter.[83]

    [83]   Letter from Duncan Fowler dated 29 May 2015, appeal book volume 1, page 176.

31. The claim regarding sale at undervalue turns on the process by which the valuation of $875,000.00 was obtained.  The sale price was set in accord with that valuation.  The valuation process was the subject of clause 3 of the terms of compromise dated 15 July 2014 which were made a rule of Court:[84]

    If Vivienne exercises her option she may do so at a value to be agreed between the parties and failing agreement the property shall be valued by a certified valuer as agreed by the parties and failing an agreement as to the valuer by the President (or his delegate) of the Australian Property Institute (SA Division).

    [84]   Annexure to the Order for Provision Out of the Estate dated 15 July 2014 (FDN 37).

32. Before Stanley J, and at the time of the injunction application, the appellant complained that the sale contract was not entered into until after more than 90 days had elapsed following the valuation date.[85]  Before this Court, no criticism of the reasoning of Stanley J was made.  Again, the argument was different. 

    [85]   Hall v Carney (No 3) [2020] SASC 177, [114].

33. The appellant complains that the valuation underpinning the sale and purchase of the Anzac Highway property was made on a ‘single residential’ basis rather than on a ‘highest and best use’ basis. 

34. After the appellant had refused to agree the price of $745,000.00, and no valuer was agreed, the executors wrote to the Australian Property Institute (SA Division) and a valuer was appointed.  In correspondence between the parties the appellant maintained that neither party should “communicate or interact with the appointed valuer”.[86]  The “Presidential Appointment Application”, supplied by the Australian Property Institute (SA Division), stipulated that the valuer was to give an opinion “as an expert”. 

    [86]   Letter from Duncan Fowler dated 16 January 2015, appeal book volume 1, page 416.

35. As at 2 April 2015, the appointed valuer expressed the expert opinion that the Anzac Highway property should be valued at $875,000.00.[87]

    [87]   Hall v Carney (No 3) [2020] SASC 177, [113].

36. There is no sale at an undervalue where the sale price is set in accord with the process by which the parties agreed that the price would be set.  They agreed that the price would be set in accord with the opinion of a valuer appointed by the Australian Property Institute (SA Division). The basis upon which the valuation should be made was then a matter for the appointed valuer. 

37. In a case where the parties agreed the process by which a valuation opinion would be obtained from an expert valuer, and followed that process, the fact that a different expert later gave the appellant a different valuation opinion does not, without more, suggest any error in the approach taken by the appointed valuer, still less any basis to question the valuation opinion given.[88] 

    [88]   There were, for example, no issues about the process as there were in Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1 (Debelle J, with whom Duggan and Anderson JJ agreed).

1. In these circumstances, and on the material made available by the appellant, it is our opinion that the asserted undervalue aspect of the claim is not reasonably arguable. 

2. Finally, the appellant complains that the executors failed to rent the Anzac Highway property because of an ill-founded concern about the incidence of capital gains tax liability.  The executors emphasised to this Court that this claim was, effectively, abandoned before Stanley J because no submissions were made about it.  The appellant was represented by counsel before Stanley J and, whilst the appellant has been critical of some of the submissions put on his behalf, he is generally bound by the conduct of counsel.[89] 

   [89]   Harvey v Phillips (1956) 95 CLR 235.

3. The executors contend in any event that there are four answers to this claim.  The first is that they rely on the mutual releases contained in the terms of compromise.  We doubt whether they assist where the complaint concerns the period after entry into the terms of compromise.  The second and third answers are that the executors were empowered to retain the property in the same state it was at the date of the deceased’s death (by clause 6.1 of the will) and, in addition, it was not in a fit state for safe rental.  They rely on a building inspection report and the quoted costs for works which, they say, the appellant refused to authorise.[90] 

   [90]   Appeal book, vol 3, p 1523.

4. Fourth and finally, the executors rely on the fact that the property was the deceased’s principal place of residence and exempt from capital gains tax liability which, they say, would have been lost two years after the deceased’s death if it had been used to derive income.  In addition, accounting advice was obtained by the executors to the effect that the consequential saving to the residuary estate was around $93,000.00 over any foregone rental income.[91]

   [91]   Appeal book, vol 3, pp 1558-1559.

5. On the face of it, three of the answers mounted by the executors appear to pose formidable obstacles to success for this claim.  We do not overlook that the appellant’s arguments on this claim, even in writing, are best described as cursory.  In our view, doing the best we can on the material made available to us, we are not prepared to find that this claim is reasonably arguable.

6. However, even if we are wrong about the view that these claims concerning the Anzac Highway property are not reasonably arguable, or at least have not been shown by the appellant to be reasonably arguable, the long delay associated with agitating them is a very significant matter to be weighed in the exercise of discretion.

   Appeal ground 6 – the Dawson Avenue property income

7. Before Stanley J, the appellant complained that Ms Carney should not have received the rental derived from the Dawson Avenue property following the death of the deceased.  At one stage, the appellant maintained that Ms Carney owed the estate rental in the sum of $3,736.00.

8. However, as Stanley J pointed out, by clause 4.2 of the will the Dawson Avenue property was devised to Ms Carney and, therefore: [92]

   The devisee of specific real estate is entitled to all of the income which may accrue upon it after the testator’s death. This principle was recently re-stated by this Court in Tschirn v Australian Executor Trustees Limited.[93] The authorities supporting the principle are discussed at length … in O’Brien v McCormick.[94]

   [92]   Hall v Carney (No 3) [2020] SASC 177, [94].

   [93]   Tschirn v Australian Executor Trustees Limited [2016] SASC 149, [33]-[38] (Doyle J, as he was).

   [94]   O’Brien v McCormick [2005] NSWSC 619, [38] (Campbell J).

9. Stanley J rejected the contention that, if Ms Carney was entitled to the income, she should have met all of the expenses.  The executors were at liberty to initially meet those expenses from whatever source was available to them.  And, as Stanley J explained, whilst Ms Carney was ultimately liable for the expenses,[95] the executors were at liberty after meeting those expenses to make the necessary adjustments later by applying, as between beneficiaries, the principle of marshalling of assets:[96]

   The authorities are clear that the order of application of assets affects only the rights inter se between beneficiaries, and does not affect the power of the executor to pay the deceased’s debts, and funeral and testamentary expenses out of any assets which come to hand to the executor, or affect the entitlement of a creditor of a deceased’s estate to obtain payment of the debt from any asset of the deceased.  The principle has been expressly established in jurisdictions where the order of application of assets has been placed on a statutory footing, for example, in the UK since 1926.[97] That approach has been followed in Australia.[98]  The position is the same in South Australia where the matter is regulated by the common law.  The law on the point was originally expounded before the statutory provisions were enacted in other jurisdictions.[99] There is no doubt about the common law position which continues to apply in South Australia.

   [95]   O’Brien v McCormick [2005] NSWSC 619, [38].

   [96]   Hall v Carney (No 3) [2020] SASC 177, [98].

   [97]   In re Tong; Hilton v Bradbury [1931] 1 Ch 202, 212; Re Cohen deceased [1960] 1 Ch 179, 188.

   [98]   Joyce v Cam [2004] NSWSC 621, [48]-[54].

   [99]   See, e.g., Allhusen v Whittell (1867) LR 4 Eq 295, 302.

10. A calculation of the necessary adjustments was, on the evidence, carried out by a chartered accountant in 2019 and will be brought to account in any final distribution.[100]  In any event, his Honour found that no separate claim could be made against the executors because of the mutual releases set out in clause 13 of the terms of compromise dated 15 July 2014 which were made a rule of Court.[101]

    [100] Hall v Carney (No 3) [2020] SASC 177, [101].

    [101] Hall v Carney (No 3) [2020] SASC 177, [103].

11. Before this Court, the appellant did not attempt to show that the reasoning of Stanley J was wrong in any respect.  Again, a new point was made.  The appellant maintains that, whatever the true position at common law, that is not what he was told.  He says that he understood that alternative arrangements were being made.[102] The appellant says that he relied on statements made by the executors in correspondence sent, for example, on 17 February and 18 June 2014 to the effect that the property “should be tenanted immediately to start generating income for the estate” and that rent was being “paid into the estate”.[103]  

    [102] Appeal Transcript, p 32.

    [103] Letter from Douglas Hoskins Legal dated 17 February 2014, appeal book volume 2, pages 939 and 946.

12. Whilst this was a new way of putting the claim, the material on which the argument relies was included in affidavit evidence which was before the Master for the purposes of defining the “Notified Claims” the subject of the notices given under ss 29(1) and 29(2) of the Trustee Act.

13. More fundamentally, the appellant did not then claim that he relied on these statements in any material way, for example, when entering into the terms of compromise dated 15 July 2014 following mediation.  On the face of it, these statements by the executors, even if wrong and in some way actionable, are covered by the mutual releases contained in clause 13 of the terms of compromise.  However, even if there be some room for doubt about these propositions, the long delay associated with agitating these claims is a very significant matter to be weighed in the exercise of discretion.

    The re-exercise of discretion under s 29(2) of the Trustee Act

14. We have concluded that the appellant’s various claims are not reasonably arguable, or at least have not been shown by him to be reasonably arguable.  These conclusions weigh very heavily against granting the appellant any further time.  There is simply no utility in doing so.

15. In addition, we have found that the appellant’s long delay in prosecuting these claims is, in all the circumstances, egregious.  The appellant, on any view, has had a reasonable opportunity to prosecute these claims. He has not satisfactorily explained his delay.  And, as we have indicated, even if any of these claims had merit, the appellant’s inordinate delay is a very significant matter to be weighed in the exercise of discretion.

16. Whilst an order barring the Notified Claims might conceivably entail some prejudice to the appellant, that is ameliorated, significantly in our view, by the fact that they are not reasonably arguable, or at least have not been shown to be so.  As against that, were the Court to refrain from making a barring order, where the appellant has had a reasonable opportunity to prosecute his claims, that would work an injustice. It would be both unfair and oppressive to the executors and the residuary beneficiaries – viewing that class as a whole – to continue to delay the due administration of this estate.  There is, as we have emphasised, a manifest public interest in ensuring that administrations are brought to an end without undue cost or delay.

17. This is not a case in which it would be appropriate to defer making an order, or to otherwise grant further time.

18. In our opinion, it is just that a barring order be made in respect of the Notified Claims pursuant to s 29(2) of the Trustee Act. It is time that the administration of this estate be brought to a conclusion.

    Conclusion

19. To the extent that the appellant otherwise challenges the advice or directions given under s 69 of the Administration and Probate Act1919 (SA), or the determination and order made regarding costs under appeal ground 4, we dismiss that ground of appeal.

20. Whilst we would allow appeal ground 1, on a re-exercise of discretion we too would make a barring order under s 29(2) of the Trustee Act.  Strictly, that makes it unnecessary to make any orders regarding the other grounds of appeal.

21. In the result, the appeal must be dismissed and we will hear from the parties regarding the form of the orders and as to costs.