Kalaf v Mallis
[2014] WASC 237
•3 JULY 2014
KALAF -v- MALLIS [2014] WASC 237
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 237 | |
| Case No: | CIV:1437/2014 | 5 JUNE 2014 | |
| Coram: | MASTER SANDERSON | 3/07/14 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL ANTHONY KALAF by his next friend THE PUBLIC ADVOCATE LEANNE MALLIS as Executor of the Will of EMANUEL KALAF |
Catchwords: | Family Provision Act 1972 (WA) Application for extension of time to bring claim Turns on own facts |
Legislation: | Nil |
Case References: | Clayton v Aust (1993) 9 WAR 364 Easterbrook v Young (1977) 136 CLR 308 Grigoriou v Nitsos [1999] WASCA 42 Re IMO Ivor Withall Trescowthick [1999] VSC 409 Re McPherson [1987] 2 Qd R 394 Young v Kestel [2003] WASCA 190 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
LEANNE MALLIS as Executor of the Will of EMANUEL KALAF
Defendant
Catchwords:
Family Provision Act 1972 (WA) - Application for extension of time to bring claim - Turns on own facts
Legislation:
Nil
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiff : Ms W G Gillan
Defendant : Dr P R MacMillan
Solicitors:
Plaintiff : Kershaw Legal
Defendant : Havilah Legal
Case(s) referred to in judgment(s):
Clayton v Aust (1993) 9 WAR 364
Easterbrook v Young (1977) 136 CLR 308
Grigoriou v Nitsos [1999] WASCA 42
Re IMO Ivor Withall Trescowthick [1999] VSC 409
Re McPherson [1987] 2 Qd R 394
Young v Kestel [2003] WASCA 190
1 MASTER SANDERSON: This is the plaintiff's application for an extension of time to bring an application under the Family Provision Act 1972 (WA). It relates to the estate of the late Emanuel 'Lucky' Kalaf. For many years Mr Kalaf fielded as a bookmaker at Gloucester Park. Those who invested with Mr Kalaf would not be surprised to learn that he died leaving a substantial estate.
2 The deceased had three children - the defendant, the plaintiff and Mrs Despine Sattler. Without going into specifics the defendant and Mrs Sattler between them received the bulk of the deceased's estate. He did make a bequest to his son which is in the following terms:
C. LIFE INTEREST IN PART INCOME - MICHAEL ANTHONY KALAF
I direct my Executor to ensure that funds sufficient to meet the day to day needs of my son Michael Anthony Kalaf are directed by the Executor on an as-needs basis to my son Michael Anthony Kalaf, of c/- Unit 3/14 The Avenue, Crawley, Western Australia, Australia. HOWEVER I understand that the terms on which this financial commitment are met are to be decided by my said daughters and further I suggest that my said daughters contribute to the payment of those expenses equally AND FURTHER I direct that where it is not practicable for funds to be paid or given to my said son during a period of any legal disability or disability of any nature whatsoever, that my said daughters will arrange for the payment of all reasonable expenses on behalf of my said son and to the best of their abilities.
4 Michael Kalaf suffers from a serious mental health illness which is described as chronic paranoid schizophrenia: see affidavit of Debra Helen Casey sworn 28 March 2014, par 6 and attachment DHC2. He is currently a represented person and has been so since 2004. He brings this application by his next friend the Public Advocate. The Public Trustee was appointed the plenary administrator of Michael Kalaf's estate in 2004. At the time of the death of the deceased he was in custody and is still incarcerated in prison. There is nothing in the evidence to suggest he will ever be in a fit condition to manage his own affairs.
5 The deceased died on 24 May 2011. Probate of his will was granted to the defendant on 24 November 2011. A party wishing to bring proceedings under the Family Provision Act must do so within six months of the grant of probate. Clearly the application is well out of time. However pursuant to s 6(7)(b) of the Family Provision Act the court can extend time if it is 'satisfied that the justice of the case requires that the applicant be given leave to file out of time'. The first question then is the basis upon which the discretion embodied in that subsection is to be exercised.
6 The leading authority in this area is the decision of the Full Court in Clayton v Aust (1993) 9 WAR 364. Based upon that decision there are nine relevant considerations. They can be summarised as follows:
(1) the discretion is unfettered, but must be exercised judicially and in accordance with what is proper and just;
(2) the plaintiff bears the onus of establishing sufficient grounds to take the case out of the general rule and depriving those who are protected by its benefits;
(3) the time limit is a substantive provision laid down by the Act itself and more than a procedural time imposed by the rules of court. The burden on the applicant is no triviality. This means the plaintiff must make out a substantial case for it being just and proper for the court to exercise its statutory jurisdiction;
(4) all circumstances must be considered. One significant factor is the length of the delay and the reasons for it and also the promptitude with which, by letter before action or otherwise, the claimant gave warning of the proposed application to the defendant;
(5) it is material whether negotiations have commenced within time but not concluded once time has elapsed;
(6) it is relevant whether the estate has been distributed at the time the executor has notice of the action;
(7) it is also relevant whether any beneficiary has changed his or her position in reliance on a distribution;
(8) it is relevant whether the claimant has an arguable case but no detailed consideration of the merits of the case is required at the stage of the hearing of the application for leave to file out of time is made; and
(9) it is relevant to consider whether if the extension of time was refused the applicant would be left without redress against another party.
7 To these nine criteria there can I think be added one more. This arises out of the decision of the Court of Appeal in Grigoriou v Nitsos [1999] WASCA 42. The court there concluded that although there was potential for an action against solicitors who had failed to act promptly the applicant was blameless because she attempted to drive the application forward. In those circumstances a grant of an extension of time was warranted.
8 What is unusual about this case is that at all material times the estate of the plaintiff was under the control of the Public Trustee. The officer of the Public Trustee who had conduct of Michael Kalaf's affairs was James Alexander Gladstone Smith. Mr Smith has sworn an affidavit in support of the application which is dated 31 March 2014. He says he has had conduct of Michael Kalaf's affairs since March 2010. He says on 21 September 2011 he was contacted by Mrs Sattler who informed him Michael's father had died. There was some discussion about the terms of the deceased's will. The clause relating to Michael Kalaf was conveyed to Mr Smith in general terms. Mr Smith says although Mrs Sattler undertook to provide him with a copy of the deceased's will she did not do so. Mr Smith says he took no further action. In July 2013 Michael Kalaf's file was reviewed. Mr Smith then contacted the defendant. It was not until 14 November 2013 he received an email from the defendant setting out the financial position of the estate. By then the time for making any application on behalf of Michael Kalaf under the Family Provision Act had long since passed.
9 Before considering the evidence a further two points can be made. First, once appointed plenary administrator the Public Trustee for all intents and purposes stood in the shoes of Michael Kalaf. That is the effect of s 45 of the Guardianship and Administration Act 1990 (WA). So when determining the reasonableness or otherwise of not taking action under the Family Provision Act is the actions of the Public Trustee as the Public Trustee that must be considered. Clearly the Public Trustee has an intimate knowledge of the workings of the Family Provision Act. They were aware of the time limit and the consequences of not issuing proceedings within six months of the grant of probate.
10 Second, it is difficult to see how this matter could have been left to drift the way it was. Mr Smith understood the extent of Michael Kalaf's disability. From his initial discussion with Mrs Sattler he must have been aware there was only limited provision made in the deceased's will for Michael Kalaf. That suggests he should have moved quickly to obtain a copy of the will and subsequently the grant of probate. It might have been expected he would have undertaken negotiations with the executor and the beneficiaries to see whether some further provision for Michael Kalaf could have been arranged. The fact he did nothing is remarkable.
11 Both the defendant and Mrs Sattler have sworn affidavits. Both go into some detail about contact they say they had with Mr Smith. Without examining the evidence in detail both say they had contact with Mr Smith on numerous occasions and kept him up to date with progress on managing the estate. It is worthy of note that were the evidence of Mrs Sattler and the defendant to be accepted the conduct of Mr Smith and through him the Public Trustee is even more difficult to explain.
12 Before dealing with the facts of this case as they marry up with the principles to be applied it is worth looking at three relevant authorities. In each of these cases leave was refused at first instance. In all three cases the appeals were successful. Examining these cases is essential.
13 First the case of Clayton v Aust. That was a decision of Master Bredmeyer. The learned master had decided based upon the affidavit evidence led by the applicant for the extension of time the case itself was so weak it was unlikely to succeed and therefore leave ought not be granted. The Full Court allowed the appeal. They made the point it was not a matter of characterising a case as strong or weak. The question was whether the case was arguable. Accordingly any detailed examination of the merits of any action run after the extension of time is granted should be limited.
14 The next case to consider is Grigoriou v Nitsos. The court first noted it was common ground between the parties the applicant had an arguable case. Furthermore the applicant had consulted solicitors and the fact nothing was done was largely the fault of the solicitors. I determined as the applicant could seek relief against the solicitors there was no warrant for granting the extension of time. Ipp J (with whom White & Steytler JJ agreed) said:
The learned Master did not examine the question whether the applicant should be held responsible for the delay and neglect on the part of Stamatiou & Co. It appears from his reasons that he assumed that this would automatically follow. He posed the question: 'Should the delay by [Stamatiou & Co], their complete failure to look after the interests of their client, be excused?' He answered this question in the negative and refused the application for the extension of time.
Section 7(2)(b) lays down that the 'justice of the case' is the determining factor in regard to whether leave should be given to file an application out of time. The essential question in the case is therefore to be cast in these terms. In Re Salmon (deceased) [1981] Ch 170 (at 175) Megarry VC laid down certain 'guidelines' or 'points' relevant to the jurisdiction to extend time and these were reiterated by Malcolm CJ (with whom Rowland and Franklyn JJ agreed) in Clayton v Aust (1993) 9 WAR 364. The learned Chief Justice pointed out (at 367), 'his Lordship has made it plain that these considerations are not exhaustive.' In substance, the guidelines make it clear that, in determining an application for extension of time under s 7(2)(b), a judicial discretion must be exercised and all the relevant circumstances must be taken into account in order to assess the justice of the particular case under consideration.
In my opinion, where delay in making an application in terms of s7(1) is due to the conduct of an applicant's solicitors, the 'justice of the case' requires all the relevant circumstances to be examined to determine the extent to which the solicitors' fault is to be attributed to the applicant. It should not automatically follow that the solicitors' neglect will be visited upon the applicant: after all, that might not meet the justice of the case. This underlies the approach in Brown v Holt [1961] VR 435 and Re Traeger deceased [1948] SASR 248, both being cases involving a failure by solicitors to give timeous notice of applications under legislation similar to the Inheritance (Family and Dependants Provision) Act. In both cases the reasonableness of the conduct of the applicant, as well as that of the applicant's solicitors, was regarded as relevant. See also Bourke v Kecskes [1967] VR 894 (which was an application for the dismissal of an action for want of prosecution), where Lush J examined the question whether 'it is fair to place on the facts the interpretation that the plaintiff was passively accepting a situation which he ought to have realised was wrong' (because of unreasonable delay on the part of his solicitor) [15] - [17].
15 The Full Court took the unusual step of allowing evidence to be led from the applicant as to the steps she took to advance the application. Essentially she was told matters were all in hand and progressing well. After summarising her evidence Ipp J continued:
The gravity of the inappropriateness of the conduct of Stamatiou & Co was underlined by the applicant's testimony in regard to the manner in which she executed her affidavit that was filed in the proceedings before the learned Master. She was sent an affidavit by Stamatiou & Co for signature by her. This affidavit was lost. Stamatiou & Co drafted another and requested the applicant to sign it. The applicant was hesitant about doing so and said to the person concerned at Stamatiou & Co: 'But my daughter is not here. I can't read English. I don't know what it is'. She was informed, however, that the affidavit was 'the same as the first one' and, although it was not read to her, she was told to sign it, which she did.
The first time that the applicant learnt that time limits had to be met for the bringing of her claim under the Act was after the learned Master had delivered his judgment refusing the extension of time. Until then, the applicant had been completely ignorant of the provisions of s 7(2)(a) of the Act, despite her several discussions with Mr Stamatiou.
In summary, the evidence established that the applicant, disadvantaged as she was by her lack of ability to read English and her rudimentary education, retained what she believed to be an apparently competent firm of solicitors and she relied on them to protect her interests. She requested them at regular intervals for information as to what they had done and were doing, and was constantly reassured that everything was in order. It was only after the learned Master handed down his reasons that she discovered that over a period of several months her solicitors had done nothing to prosecute her case and had allowed the time period stipulated by s 7(2)(a) of the Act to expire. As counsel for the respondents rightly conceded, the applicant could not have done more to protect her own interests.
The aforegoing evidence was powerful material which weighed heavily in favour of granting an extension of time under s 7(2)(b). As mentioned, this material was not before the learned Master. In the circumstances, the issues had to be considered afresh.
Were the applicant not to be granted leave to bring her application out of time, she would be left with a claim for damages against Stamatiou & Co and Mr Segler. As the learned Master pointed out, the applicant's damages in such a case would be based on the loss of the chance of succeeding in her claim under s 7(1): Instant Nominees Pty Ltd v Redmond (1987) WAR 218 (at 226) per Burt CJ. On this basis there is a real prospect of the applicant obtaining an order for damages that would be less than the amount she could recover under s 7(1). Further, the prosecution of such a claim would take far longer and be far more expensive than the prosecution of her claim under the Act. The aforegoing represented a serious degree of prejudice to the applicant. This has to be seen in the light of the fact that the new evidence established that no blame whatever attached to her in respect of the failure to bring the application within the six month period required by s 7(2)(a). On the contrary, as mentioned, she had done everything that could have been expected of her [25] - [29].
16 It would of course been inappropriate for the court to reach a concluded view as to the liability of her solicitors to the applicant. But the irresistible inference to be drawn from the evidence that the fault lay with the solicitors. It is very difficult to see how they could have defended a claim in negligence. But the Full Court placed great emphasis on the actual prejudice suffered by the applicant if she was left with an action for damages for loss of a chance to bring a claim as distinct from a right to make the claim itself. That point is not without importance in this case.
17 The third case to be considered is the decision in Young v Kestel [2003] WASCA 190. The case involved an estate valued at more than $3 million. EM Heenan J (with whom McLure J agreed) summarised the issues in the appeal as follows:
It will be necessary to examine the reasons for decision of the learned Master for refusing the extension of time sought in more detail later. For the present, however, it is enough to mention that the chief factors which the learned Master identified in his reasons for decision were:
(a) that the period of ten and a half months which has passed after the expiration of the six month period provided for bringing an application under the Act was a lengthy delay and had not been satisfactorily explained by the appellant;
(b) that the estate of the deceased had been largely, but not completely, distributed by the executor and that other beneficiaries claimed that they had altered their positions as a result of the distributions;
(c) that at best, the appellant had a weak case because the evidence disclosed, so it was thought by the learned Master, that the widow had received cash and assets from the estate of the deceased of over $1 million and that there was nothing in the evidence which could establish that such a provision from the estate was not adequate for the needs of a 63 year old woman with no dependants [6].
18 His Honour then examined in some detail the assets of the estate of the deceased and in particular the trusts through which the deceased had conducted his business affairs. His Honour then examined the distribution of the estate as provided for in the will and made the point in my original decision the fact the assets had been largely distributed coupled with the fact there had been a 10 month delay beyond the statutory time limit led me to conclude it would not be in the interests of justice to grant the extension of time. As to the distribution of the estate his Honour said:
The position in Western Australia now under the Inheritance (Family and Dependants Provision) Act 1972 is that the court is expressly empowered to make an order in any case where the estate of the deceased, or part thereof, has been distributed among the persons entitled under the will or an intestacy but, in that case, the powers which the court will exercise are those conferred by s 65 of the Trustees Act (1962) in lieu of an order under the Inheritance Act. By s 9 of the latter Act, any such order shall not be inequitable as regards assets already distributed. The court is specifically required to have regard to the provisions of subsection 65(8) of the Trustees Act which provides:
'(8) Where a trustee has made a distribution of any assets forming part of the estate of a deceased person or subject to a trust, relief (whether under this section or in equity or otherwise) against any person other than the trustee or in respect of any interest of any such person in any assets so distributed and in any money or property into which they have been converted, shall be denied, wholly or in part, if the person from whom relief is sought received the assets or interest in good faith and has so altered his position in reliance on his having an indefeasible interest in the assets or interest, that, in the opinion of the Court, having regard to all possible implications in respect of the trustee and other persons, it is inequitable to grant relief or to grant relief in full.'
Subject to its terms, s 65 of the Trustees Act empowers the court to make an order that a person to whom assets have been distributed by a trustee do pay to the applicant a sum not exceeding the value of those assets and this power expressly extends to an application under the Inheritance Act - s 65(2)(a) and s 8.
It must be recognized that the full extent of the defence of change of position provided by s 65(8) of the Trustees Act, where access to the remedy of tracing or following assets of an estate which have been distributed is available, does not appear to be the subject of authoritative judicial analysis at this date. However, the statutory enactment of such a defence plainly is designed to overcome an earlier view that there was, in equity, no general defence against a change of position by a party who had received the proceeds of a trust fund - Ministry of Health v Simpson [1921] AC 251 at 76. Now, however, the existence of such a defence, at least in some circumstances, has been recognised in Lipkin Gorman (a firm) v Karpnale Ltd [1991] 2 AC 548 and, more significantly, in Australia in David Securities Pty Ltd & Ors v Commonwealth Bank of Australia (1992) 175 CLR 353 where it was held that in appropriate circumstances the change of position defence will be effective - see also Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 and Bank of New South Wales v Murphett [1983] 1 VR 489.
In view of the statutory imperative that any order which might be made under the power available under s 65 of the Trustees Act should not be inequitable as regards assets already distributed (s 9 Inheritance Act and subsection 65(8) Trustees Act) it is difficult to envisage that an order which might eventually be made under the Act, would have an unfair or inequitable result upon any of the beneficiaries who had received such a distribution. That is the very consequence which the legislation intends to prevent and, as it is an outcome which is prohibited by statute, it cannot be presumed as a potential result.
More importantly, there is express provision in the Act that resort to s 65 of the Trustees Act for the purpose of recovering distributions made to beneficiaries is not possible in cases where an extension of time to commence proceedings under the Inheritance Act has been granted except in particular circumstances and then only with special leave of the court. The excepted circumstances and the basis upon which the court considering an application for special leave under s 65(5) of the Trustees Act should act, are not the subject of any previous authority in this State and the statutory provisions are unique to Western Australia. They were not addressed in argument on this appeal and were not considered by the learned Master. Accordingly, it is not appropriate to attempt any definitive exposition of the effect of s 65(5) in this decision beyond identifying it as being of direct relevance and potential application in suggesting that distributions made to these residuary beneficiaries could not be recovered in this case if leave were granted to the appellant to bring her desired application for further provision under the Act out of time. As the learned Master identified the prospect of the four children residuary beneficiaries having to re-arrange their affairs in the light of the distributions made, in the event that an extension of time to apply was granted to the appellant, without addressing either s 9 of the Act or the question of the effect of s 65 of the Trustees Act, I consider that this reveals a significant omission in the exercise of his discretion on this occasion. Resort to distributed assets of the estate may not be possible in the circumstances of this case, and therefore it could not be regarded as an unequivocal reason to reject the application for an extension of time [69] - [73].
19 His Honour then examined correspondence which had passed between the appellant and the respondents and detailed meetings which took place in an attempt to resolve the matter. His Honour then concluded:
Nevertheless, sufficient appears from all the evidence adduced before the learned Master to show that the appellant was waiting to receive some clear indication of the distributions which she could expect to receive from the estate of the deceased and from other sources consequent upon his death and that the respondent was not in a position to give any such clear indication even by September 2001 when he first wrote to the appellant's solicitors and indicated that that was his current position. Further, there is no evidence of any statement of assets or liabilities, or financial statements of the estate or any of the associated entities being provided to the appellant before then. In these circumstances I consider that there is sufficient evidence for the Court to identify the factors which were causing the appellant to delay resorting to legal advice or commencing proceedings upon the evidence which was adduced at the hearing. In view of the desirability of ensuring that there is, as far as possible, an end to reconsideration of contentious applications before the Court, even if they are interlocutory in character, I do not consider that the appellant should be permitted to supplement her evidence on these issues by the introduction of materials which were not before the Master [116].
20 As to the fact the estate had largely been distributed, that being one of the factors I decided weighed against the grant of the extension, his Honour said:
Further, one of the factors identified by the learned Master as telling against the grant of an extension of time was the impact which any eventual order for relief might have on assets from the estate already distributed to the other four residuary beneficiaries. However, this approach overlooks the fact that the provisions of s 9 of the Act directs that an order made is not to be inequitable in relation to distributed assets and that s 65(5) of the Trustees Act may deny any court resort to the remedy of following distributed assets in a case under the Inheritance (Family and Dependants Provision) Act where the application has been commenced out of time but pursuant to leave granted by a court under s 7 of the Act [119].
21 Based upon the decision in Young v Kestel it is perhaps open to question whether or not there has been a distribution from the estate is a relevant consideration. One of the difficulties in dealing with that question is the extent of the protection offered by the Trustees Act 1962 (WA). Section 65(8) of the Trustees Act is in the following terms:
Where a trustee has made a distribution of any assets forming part of the estate of a deceased person or subject to a trust, relief (whether under this section or in equity or otherwise) against any person other than the trustee or in respect of any interest of any such person in any assets so distributed and in any money or property into which they have been converted, shall be denied, wholly or in part, if the person from whom relief is sought received the assets or interest in good faith and has so altered his position in reliance on his having an indefeasible interest in the assets or interest, that, in the opinion of the Court, having regard to all possible implications in respect of the trustee and other persons, it is inequitable to grant relief or to grant relief in full.
22 Perhaps what can be said is the question of distribution of the estate is to be considered bearing in mind the limitation on the tracing remedies made plain by s 65(8) of the Trustees Act.
23 Looking then at the Clayton v Aust criteria, a number can be dealt with quickly. There were no negotiations within the six month time limit. The plaintiff has an arguable case. If leave is refused the plaintiff will probably have recourse against the Public Trustee. Unlike the Grigoriou v Nitsos decision this is not a case where a distinction is to be drawn between the actions of the plaintiff and the actions of his solicitors. As the Public Trustee stood in the shoes of the plaintiff it was the plaintiff who took no steps to bring the action. There is no adequate explanation for that failure. In fact it is possible to say the failure to bring the action is inexplicable. There were no solicitors involved who could be blamed for the delay.
24 The question of the distribution of the deceased's estate poses some difficulties. There is no doubt a substantial proportion of the estate has been distributed. At pars 60 - 88 the defendant details how assets of the estate have been realised and the proceeds distributed. What can be said is the estate has not been fully wound up and further assets may at some stage be distributed. The defendant says nothing about the extent to which she may have altered her position based upon distributions made to her from the estate. Mrs Sattler appears not to have been deeply involved in settling the affairs of the estate. In her affidavit she goes into some detail as to how she has altered her position based upon distributions already made to her. It is not necessary to cover this evidence in detail. It is sufficient I acknowledge she has an arguable case to say she has altered her position based upon what she understood to be her entitlement from the estate.
25 The leading case on when final distribution of an estate occurs is Easterbrook v Young (1977) 136 CLR 308. This case concerned the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW). Contained within the Act are provisions which deal with what is to occur if there has been a distribution of the estate. Those provisions differ significantly from the tracing provisions of our Act. Nonetheless the decision does bear upon the circumstances in which an extension might not be granted. Their Honours said:
Because the application is out of time a final distribution, which clearly means a complete distribution, will prevent the extension of time: and thus the power to make an order. But if the distribution has only been partial, time may be extended: however, in contrast to the situation of an application made within time, the partial distribution which has taken place will not be disturbed by an order for maintenance made on an application made in the extended time (316).
26 Two further cases should be mentioned. The first is the decision of a single judge of the Supreme Court of Queensland in Re McPherson [1987] 2 Qd R 394. In that case the Easterbrook decision was not followed. The learned judge took the view the Queensland legislation was significantly different to the New South Wales legislation and the decision did not apply. In the Victorian Supreme Court in Re IMO Ivor Withall Trescowthick [1999] VSC 409 the court held that an extension of time will not be granted where distribution has so far proceeded as to render an extension of time unjust or undesirable. In my view it is not possible to reconcile this case with the decision of the Court of Appeal in Young v Kestel.
27 The ultimate question in a case such as this is what is in the interests of justice. That is the overriding question. On the one hand here there is the strength of the plaintiff's case. At the risk of offending the principles of Clayton v Aust the plaintiff must have a very strong case. Against that is the fact there is no reasonable explanation for the delay and the delay is the direct result of the inaction of the Public Trustee, standing in the shoes of the plaintiff. Further there has been a partial distribution of the estate and there will be great difficulty in unwinding that distribution if it can be done at all.
28 With great hesitation I have come to the view the application for the extension ought be granted. In my view the failure to explain the delay in circumstances where the Public Trustee was well aware of the need to proceed with dispatch does not outweigh other factors. I accept the plaintiff could pursue the Public Trustee. However if that action is successful the damages to which he would be entitled are for loss of a chance to make a claim against the estate rather than for the provision he would actually have received had his claim been successful. But the overwhelming consideration is his strong case. I have also taken into account the fact the estate while not wholly distributed has been partially distributed. The difficulties in attempting to unwind that are not to be underestimated. Any realistic assessment of a claim which would now be pursued by the plaintiff would suggest it would be very difficult and complex. But in my view the interests of justice require the grant of an extension of time.
29 The plaintiff's application will be granted. I will hear the parties as to costs.
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