Maher v Maher

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0113

DAVID JOHN MAHER	First Applicant
and
ANTHONY CHARLES MAHER	Second Applicant
v
DAMIEN MAHER (AND OTHERS ACCORDING TO THE SCHEDULE)	Respondents

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JUDGES:	BEACH, McLEISH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2019
DATE OF JUDGMENT:	3 July 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 161
JUDGMENT APPEALED FROM:	[2018] VSC 318 (Daly AsJ)

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ADMINISTRATION AND PROBATE – Family provision – Application under Administration and Probate Act 1958 s 99 for extension of time to bring proceeding for provision out of deceased father’s estate – Applicants two of eleven children – Eldest four children partners in farming business on land owned by deceased and adjacent land owned by partners – Family home and farming infrastructure on father’s land – Father died in 1975 – Will left principal land to widow for life then to seven youngest children – Livestock and plant left to eldest children and widow – Applicants farmed land for no remuneration – Whether applicants had ‘special claims’ as able-bodied sons of deceased – Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134.

ADMINISTRATION AND PROBATE – Family provision – Extension of time application heard over four days with extensive evidence – Whether associate judge erred in conducting more than preliminary assessment of strength of applicants’ claims – Whether consideration may extend beyond whether claims are arguable – Applicants alleged promise by mother after father’s death to leave them other land in her will if applicants did not contest father’s will – Mother died in 2014 – Other land left to youngest seven children – Whether delay over 40 years satisfactorily explained – Whether respondents prejudiced by effluxion of time and loss of evidence – Ansett v Moss [2007] VSCA 161, Groser v Equity Trustees Ltd (2007) 16 VR 101, Harrison [2011] VSC 459, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr R E Cook	Sofra Solicitors
For the First to Seventh Respondents	Mr R C Wells	McNab McNab & Starke Lawyers
For the Eighth Respondent	Ms L Buckley (Solicitor)	KCL Law

BEACH JA

McLEISH JA
NIALL JA:

Thomas Patrick Maher was a farmer who lived with his wife and 11 children on a farm established in the 1890s near Violet Town in central Victoria. Mr Maher died on 3 June 1975. At that time, his children ranged in ages from 12 to 31 years. The farming work was being undertaken principally by the four eldest adult children, being Thomas, Gerard, David and Anthony.[1] These four sons constituted a partnership called the Maher Bros Partnership (‘Maher Bros’).
[1]It is convenient to refer to the parties by their first names, in order to avoid confusion.

The present application concerns the will of Mr Maher dated 19 August 1968. Thomas, David and Anthony each considered that the will did not make proper provision for them in circumstances where they had worked on the farm all their lives without proper remuneration. The farm was operated at the time on land owned by Mr Maher as well as adjacent land owned by Maher Bros. The family home, along with the other significant improvements on the farm, was situated on the land owned by Mr Maher. By his will, that land was left to Mrs Maher for her life, with the remainder interest passing to the seven younger children. The will made other provision for the older sons.

It is alleged that after Mr Maher’s death, when Thomas, David and Anthony raised the matter with their mother, Maureen Maher (after remarrying, ‘Mrs Brown’), she assured them that, if they did not contest the will, she would fix the matter by making provision in her own will for land held in her name to be left to them. Mrs Brown died in 2014. Her will left Thomas, David and Anthony other land, but not her largest holding, of some 499 acres, known as ‘Thompsons’. The family home and associated landholdings of Mr Maher were of course not part of Mrs Brown’s estate but on her death would pass under the terms of Mr Maher’s will to the remainder beneficiaries.

Thomas, on the one hand, and David and Anthony, on the other, made separate applications for extensions of time under s 99 of the Administration and Probate Act 1958 (‘the Act’) so that they could seek orders from the Court that such provision as the Court thinks fit should be made out of the estate of Mr Maher for each of them under s 91.

An associate judge refused both applications.[2] The present application for leave to appeal is brought by David and Anthony. They contend that the discretion of the associate judge miscarried in a number of respects and that this Court should re-exercise that discretion in their favour.
[2]Maher v Maher [2018] VSC 318 (‘Reasons’).

For the reasons set out below, the application for leave to appeal should be allowed but the appeal must be dismissed.

Factual background

In about 1960 Mr Maher established a farming partnership comprising himself and his three eldest sons (Thomas, Gerard and David). Anthony joined the partnership in about 1966. By a written agreement in 1967, it was provided that the partners of Maher Bros, in equal shares, were Thomas, Gerard, David and Anthony and that the net profits of the partnership business were to be distributed between them in equal shares. It seems that, at this point, Mr Maher ceased to be a partner. By his will, Mr Maher gave his livestock and plant to Maureen Maher, Thomas, Gerard, David and Anthony in equal shares. He gave a 60 acre property known as ‘Barnong’, which included a house and improvements, to Thomas. He left the residue of his estate to Maureen Maher for her lifetime and on her death to his seven younger children (Desmond, Rosemary, Michael, Patricia, John, Christine and Damien). That residue included the remainder of his land, including the family home and associated farming land.

At the date of his death, Mr Maher’s estate was valued at $281,384.93. This comprised real estate to the value of $232,015.33 and personal property, mainly consisting of livestock and farm machinery, valued at $49,369.60. Federal and State probate duties were assessed on the estate in the sum of $88,674.

David and Anthony worked on the family farm, known as ‘Fine View’, from their teenage years and then as partners in Maher Bros, and continue to work there. The property today consists of the land formerly owned by Mr Maher, together with extensive adjacent landholdings. Some of that land was owned by Mrs Brown. A considerable extent of the neighbouring land is owned by Maher Bros. Further land is owned by David and Anthony in their own names.

Not long after Mr Maher died, Gerard left the farm and ceased to play any active role in running it. He took no part in the litigation. David and Anthony continued to live in the family home on part of the farm formerly owned by Mr Maher, and still do so.

Mrs Brown died on 18 June 2014. By her will dated 22 September 2009, she left a property of approximately 314 acres to David and Anthony, a property of approximately 72 acres to Thomas and the sum of $2,000 to Desmond, noting that she made no further provision for Thomas or Desmond as they had been provided for by their father. She made no provision for Gerard, because she had paid him for the construction of a home. Mrs Brown left the larger part of her real estate, the approximately 499 acres known as ‘Thompsons’, to the remaining six children. The residuary estate was also divided among those children. Mrs Brown’s estate has not been administered, pending other proceedings asserting claims under s 91.

Proceeding in Trial Division

David and Anthony’s application was heard together with that of Thomas by an associate judge in the Trial Division over four days. Each of the 11 siblings swore an affidavit. The applications were opposed by the seven younger siblings, as well as by Mr Nathan Kuperholz, the administrator and trustee of Mr Maher’s estate.

David and Anthony submitted that an extension of time should be granted. It was contended that the delay since Mr Maher’s death was explained by their reliance on the promise made by their mother that she would leave them her land and that they had worked hard to preserve the estate, both by paying the probate duties and by working on, maintaining and building up the estate over many years. David and Anthony submitted that Mr Maher’s will gave them insufficient land upon which to derive a proper income as farmers and that, if they did not inherit the piece of land upon which they were living, they would be required to purchase another house or houses and establish a farm there instead. It was submitted that an extension of time would not cause injustice or prejudice to other beneficiaries under the will. It was submitted that the plaintiffs had a very good case to bring to court and that it could certainly not be said to be hopeless or lacking a reasonable prospect of success.

In an affidavit sworn on 1 September 2016, David stated that he had worked as a farm hand on the land from 1954, aged 8 years, milking cows prior to going to school, marking lambs and cutting wood. He left school aged 16 in 1962 and undertook full-time work on the family farm from that date. He states that he received no wages, pocket money or other remuneration and went on no holidays. He said that the requirement to work hard and long hours on the farm prevented him from taking part in local community events or being involved in social activities or sports.

David stated that, to his knowledge, Mr Maher only ever employed one full-time adult to work on the property and that he was paid a wage. When David left school and took up full-time employment on the farm, that worker was no longer required and David, together with Thomas and Anthony, worked the farm without being paid a wage. He said that he had worked on the farm for approximately 52 years without ever having been paid a wage. However, for approximately 24 years, David and Anthony had sought work locally, shearing sheep for about two months per year in order to provide them with personal funds. They saved that income and used it to purchase properties in their own names.

David stated that, after Mr Maher died, Mrs Maher, as she then was, said to David, Gerard and Anthony words to the effect ‘[y]ou are not to contest your father’s will because I am going to will my land to you’. David stated that the family solicitor at the time, Mr Michael Tehan, told them that they were to ‘carry on as you are on the farm until it is all sorted out’. David said that, following this, he and Anthony continued to work on the land for Maher Bros in order to pay all bills and rates and to provide food, clothes and financial income for their mother, brothers and sisters, in particular for their primary and secondary education, general needs and daily activities.

David stated that probate duties on Mr Maher’s estate had been paid by Maher Bros and that if that had not happened, the farm would have had to be sold.

David estimated his financial position to include shares in properties owned by Maher Bros or together with Anthony having a total collective value, based on municipal capital value, of $1,718,000. He stated that he had no superannuation or vehicle or any personal savings but owned a share of savings in Maher Bros worth approximately $40,000. He said he was not able to estimate the value of the livestock for various practical reasons. David estimated his yearly expenses to total $9,573.35.

David was cross-examined at length, including as to the circumstances of the alleged conversation with his mother after his father’s death (which had also been the subject of a short affidavit sworn on 1 February 2018). He accepted that he decided not to contest Mr Maher’s will because his mother had said she would will him her land, in particular ‘Thompsons’, and that had she done so ‘we would not be here now’.

Anthony effectively adopted David’s affidavit as his own evidence. His financial position was said to be similar to David’s except that Anthony also had a term deposit in the sum of about $39,000. He, too, was cross-examined at some length. Among other things, he confirmed that he agreed with his mother in about 1976 that he would not contest his father’s will on the basis that his mother told him that she would be leaving all of her land to the four eldest sons. He accepted that had she done that, he probably would not have sought to challenge Mr Maher’s will.

Thomas swore a number of affidavits and was cross-examined. It is not necessary to enter into the detail of his evidence, but it was substantially to the same effect as that of David and Anthony.

The solicitor, Mr Tehan, also gave evidence. He had no specific recollection of any discussions concerning Mr Maher’s will after his death but said that he could have said to David that he should not challenge the will, on the basis that the farm was an ongoing primary production operation.

The remainder beneficiaries also gave affidavit evidence. Only one of them was cross-examined. Each of them stated that they had never heard their mother make reference to the promise said to have been made to the older sons. They each gave evidence that Thomas, rather than Mrs Brown, was the dominant personality of the family, whereas the plaintiffs had said that Mrs Brown had controlled everything in the family. The remainder beneficiaries also gave evidence that they had financially supported themselves from an early age and had not received any financial assistance from their parents to provide them with a start in life, whereas the older sons had received assistance in the purchase of land and the benefit of the Maher Bros business. David and Anthony had lived at Fine View without payment of rent and had received valuable livestock, plant and equipment under their father’s will. The associate judge set out a summary of the evidence of the remainder beneficiaries regarding their personal circumstances and financial positions.[3]
[3]Ibid [93]–[101].

Further evidence was given, to which it is not necessary to refer, as to who paid the probate duties on Mr Maher’s estate and whether amounts paid by Maher Bros in that respect had been repaid, how compensation received from the Road Construction Authority (‘RCA’) after the compulsory acquisition of part of the land after Mr Maher’s death had been allocated, and the reasons for the delay in finalisation of the affairs of the estate.

Associate judge’s decision

The associate judge set out the law governing extensions of time under s 99 of the Act, referring in particular to the decision of the Court of Appeal in Ansett v Moss.[4] In addition, she referred to the decisions at first instance in McCann v Ward[5] and Harrison v Harrison.[6] She pointed out that, as at the death of Mr Maher in 1975, the right to bring a claim for a family provision order under s 91 was confined to the widow, widower or children of a deceased, and that the Court tended to construe the provision as excluding self-supporting adult sons.[7]
[4][2007] VSCA 161 [6], [11]–[12] (Buchanan JA, with Redlich JA and Cavanough AJA agreeing).
[5][2010] VSC 452 [11] (John Dixon J).
[6][2011] VSC 459 [288]–[292] (Kaye J) (‘Harrison’).
[7]Hughes v National Trustees, Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134, 147–8 (Gibbs J) (‘Hughes’).

The associate judge identified the key issues for determination as being: first, whether the plaintiffs had a ‘special claim’ so as to be exempt from the general rule regarding adult sons; secondly, the reasons for the delay and whether there was an adequate explanation for the delay between the plaintiffs becoming aware of their rights and applying for an extension of time; thirdly, whether any prejudice would be caused to the remainder beneficiaries upon an extension of time being granted over and above the potential prejudice of a diminution of their entitlement to the assets of the estate; and fourthly, the justice of the case more generally.[8]
[8]Reasons [16].

The associate judge noted that the authorities suggested that, in the absence of prejudice and, perhaps, provided there was a plausible explanation for the delay, an applicant should be permitted an extension of time unless the underlying claim is ‘hopeless’ or ‘bound to fail’.[9] She stated that, while applications of this nature are generally dealt with as interlocutory applications with limited cross-examination directed to the explanation for the delay, in the current case the parties had conducted themselves ‘as if it were a full trial, not only concerning the other factors relevant to the exercise of discretion under s 99 of the Act, but also concerning the merits of the plaintiffs’ potential claims’.[10] The associate judge said that she was therefore in a position ‘to come to more than a preliminary view regarding the plaintiffs’ potential claims’ and that it was ‘difficult to see what further evidence could be called or submissions made’.[11] The associate judge was ‘in a position to form a reasonably confident view concerning the plaintiffs’ ultimate prospects of success’, while appreciating that the merits of a potential claim were not determinative except in hopeless cases.[12]
[9]Ibid [17].
[10]Ibid [17(c)].
[11]Ibid [17(d)].
[12]Ibid.

The associate judge then described the evidence before turning to the resolution of the application. She stated that she was able to determine the application largely on the basis that the evidence of the plaintiffs was correct. However, she believed that the evidence had been ‘somewhat coloured’ by their views concerning the justice or otherwise of their position.[13] The associate judge accepted the evidence of David, Anthony and Thomas that, following Mr Maher’s death, their mother made a promise to the effect that she would leave all of her land to them upon her death, provided they did not contest their father’s will, and that her failure to fulfil that promise only came to light after her own death in June 2014. However, the associate judge noted that it must have been apparent to the plaintiffs when they agreed not to contest Mr Maher’s will, in exchange for ultimately receiving their mother’s land, that Fine View would still not pass to them.[14] She held that the fact that the plaintiffs apparently took no steps to plan for what would occur once Fine View vested in the remainder beneficiaries, in circumstances where Maher Bros, David and Anthony continued to acquire substantial parcels of adjacent land, to some extent undermined their contention that Mr Maher could only discharge his moral duty to them by leaving them the entirety of his land holdings.
[13]Ibid [110].
[14]Ibid [115].

The associate judge dismissed the applications for an extension of time. She summarised her conclusions at [122] of her reasons:

(a)first, while I accept the plaintiffs’ evidence concerning what their mother told them after they became aware of the terms of the deceased’s will, and that they did not obtain advice concerning their rights under the Act until recent years, I consider that the plaintiffs did not fail to challenge the will by reason of any ignorance of their rights, but rather by reason of their reliance upon their mother’s promise;
(b)the delay in bringing these proceedings, both prior to 2014 and after 2014, has caused the remainder beneficiaries prejudice;
(c)the plaintiffs’ claims for further provision are not hopeless, in the sense that an application for summary judgment would have been unlikely to be successful, even having regard to the applicable law with respect to claims by adult sons as at the time that any proceedings brought by the plaintiffs would have been heard and determined. However, there is sufficient evidence before me to conclude that the plaintiffs’ claims do not have sufficient prospects of success to warrant an order in their favour, having regard to the length of the delay, the reasons for the delay, and the prejudice to the remainder beneficiaries;

(d)the fact that the plaintiffs may have an alternative remedy, being their claims against the Brown estate, weighs against disturbing the long standing testamentary dispositions of the deceased; and
(e)the payment of probate duties by Maher Bros is not of great relevance to the exercise of discretion, particularly given that the question of whether any loan by Maher Bros to the estate remains unpaid, is not capable of resolution in these proceedings. Further, Maher Bros received some benefit from having access to the whole of the deceased’s land.[15]

[15]Ibid [122].

Elaborating on these conclusions, the associate judge noted that the length of the delay was extreme and that, while that did not shut out the plaintiffs from obtaining relief, it was a factor weighing against it.[16] The associate judge held that the delay in bringing the applications after the plaintiffs discovered the terms of Mrs Brown’s will in 2014 was also relevant, but attached less weight to that matter in regard to the applications made by David and Anthony than in the case of Thomas and held that it did not tell against them.[17] She accepted that the plaintiffs did not have a full and precise appreciation of their legal rights in 1975, but they understood that under the terms of Mr Maher’s will they had not received, and were never going to receive, his land, including Fine View.[18] Moreover, she held that they understood that it was possible to contest wills. The associate judge said that, for reasons which were not entirely clear given the disparity in the size of the relevant land holdings and the importance of Fine View to the farming operations of the family, the plaintiffs were prepared to accept Mrs Brown’s proposal. She said that, in some respects, the explanation for the delay was a neutral factor.[19] It was a plausible explanation for the delay, but it also highlighted the fact that the plaintiffs’ remedy may lie elsewhere.
[16]Ibid [124].
[17]Ibid [128], [151].
[18]Ibid [130].
[19]Ibid.

In respect of prejudice, the associate judge held that there was evidence of relevant prejudice which was real without being able to be described as extreme.[20] It weighed against the grant of an extension of time. Difficulties caused by the significant effluxion of time included a lack of evidence as to the administration of the estate, the payment of probate duties and the accounting for the distribution of the RCA compensation payment. In addition, the associate judge identified two particular forensic issues central to the determination of the application which had been affected by the delay.[21] The first was that Mrs Brown would have been an important witness, both with respect to the conversations which were said to have taken place involving her and as to the comparative financial positions of the parties. Secondly, the lapse in time made it difficult, although not impossible, to assess the financial position of the plaintiffs at the time of Mr Maher’s death, which was a critical issue in determining whether he had breached his moral duty to them. There was also other prejudice to the remainder beneficiaries. It could be presumed that they knew of the terms of Mr Maher’s will for many decades and ‘may have organised their affairs accordingly’.[22] The proceedings had not only delayed the distribution of Mr Maher’s estate to them, but they had been held out of their entitlements from the Brown estate.
[20]Ibid [131].
[21]Ibid [133].
[22]Ibid [134].

The associate judge then turned to the merits of the plaintiffs’ claims and stated that, while they were arguable, they were ‘not strong’.[23] The claims ‘could not be said to have been hopeless’ but the applications ‘would have had limited prospects of success’.[24] The associate judge stated that, as at 1975, the plaintiffs were able-bodied young men in their late 20s and early 30s. Maher Bros had been operating for some 15 years and in its then present form for eight years. In that time, it had generated sufficient income to fund the purchase of three parcels of land in 1968, 1969 and 1973, totalling approximately 1430 acres (noting that the estate land comprised a total of 1700 acres). Compared with the remainder beneficiaries at that time, the plaintiffs had shown themselves to be able to ‘eke out a livelihood and accumulate assets’.[25] It also appeared that Maher Bros had its own livestock and capital equipment. In short, it was a viable business which was augmented by the livestock and equipment left to the four eldest sons and Mrs Maher in Mr Maher’s will.[26]
[23]Ibid [135].
[24]Ibid.
[25]Ibid [136].
[26]Ibid.

In respect of the plaintiffs working to build up the estate, the associate judge accepted that their work contributed to the number and value of the livestock owned by Mr Maher, but noted that the Maher Bros partners received four-fifths of the livestock under the will. It could be inferred that the plaintiffs’ work contributed to the value of the land by helping to keep it in good order but it was difficult to attribute a value to that benefit. The associate judge held that what the plaintiffs really had was a claim for unpaid wages, against which would have to be offset their board and keep and arguably an allowance for their use of the estate land to conduct the Maher Bros farming business. She agreed that the plaintiffs would have had a special claim which would enliven the jurisdiction of the court had the application been made within time.[27] She held however, that, having regard to the size of the estate, especially after payment of probate duties, the principle of freedom of testation, and the financial position and prospects of the plaintiffs compared with those of Mrs Brown and the remainder beneficiaries, the ‘most probable outcome … would have been a finding that the testator had discharged his moral duty to the plaintiffs’.[28]
[27]Ibid [139]–[140].
[28]Ibid [140].

The associate judge went on to discuss the comparative treatment of the plaintiffs and the remainder beneficiaries, in the following terms:

The plaintiffs’ claims in respect of the deceased’s estate are predicated on the proposition that the relationship between the plaintiffs and the deceased was all one way: that is, they worked for their father for free and their father provided nothing for them. I do not consider this reflects the true position. Maher Bros was able to accumulate substantial parcels of land between 1968 and 1973. Maher Bros was able to not only utilise the deceased’s plant and equipment to assist with their farming operations, they also had access to the farming infrastructure, which was said to be all located at Fine View. Their father was a guarantor for at least one loan. In effect, the plaintiffs received a solid head start in their farming business.
The size of the estate, particularly having regard to the competing claims of Mrs Brown and the remainder beneficiaries, also supports my conclusion that the plaintiff’s prospects of success were slim. After the gifts of plant and equipment to the Maher Bros partners and Mrs Brown, and the gift of Barnong to Thomas, the gross value of the estate was $231,679.23. From this sum the amount of probate duties which had to be paid was $88,674.00, leaving a net residuary estate of $143,005.23. When viewed against the size of the estate, and the competing claim of Mrs Brown in particular, the value of the assets left to the plaintiffs and Gerard, being $41,454.56 (approximately thirty per cent of the value of the residuary estate) appears reasonably generous, noting that if the plaintiffs had had their way, their seven siblings would receive nothing whatsoever from the deceased’s estate.[29]

[29]Ibid [141]–[142].

In summary, the associate judge regarded the plaintiffs’ prospects of success in their claim as being ‘very slim’, without being hopeless.[30] She held that this weighed against granting an extension of time.
[30]Ibid [145].

The associate judge concluded as follows:

In conclusion, having regard to all of the relevant discretionary factors, in particular the length of the delay, the prejudice caused by the delay, and the modest prospects of success of any claim by the plaintiffs for further provision, on balance, these factors weigh against the granting of an extension of time.[31]
[31]Ibid [152].

Proposed grounds of appeal

The applicants’ proposed grounds of appeal are somewhat lengthy but clearly set out the reasons why it is said the appeal should succeed. They are as follows:

1.Her Honour made a material error that vitiated the exercise of her discretion in that:
(a)having correctly stated that the authorities required the Court not to embark on a detailed analysis of the applicants’ potential claim under Part IV of the Administration and Probate Act 1958 (‘the TFM claim’) (at [17]), Her Honour then undertook such an analysis; and/or
(b)Her Honour in effect proceeded to hear the TFM claim in an application for an extension of time to bring the TFM claim.

2.Her Honour made a material error that vitiated the exercise of her discretion in that:
(a)having found that had the TFM claim been brought within time it would be a ‘special claim’ (at [140]) such that it would then have enlivened the Courts’ jurisdiction (as it was at the time of the deceased’s death in 1975), she did not allow the applicants’ application to extend time to bring the TFM claim; and/or
(b)having found that the applicants would only have had ‘modest prospects of success’ had the TFM claim been brought within time (at [151]), she did not allow the applicants’ application to extend time to bring the TFM claim; and/or
(c)having found that the TFM claim was not hopeless, in the sense that an application for summary judgment to dismiss the claim would have been unlikely to be successful, even having regard to the applicable law with respect to claims by adult sons as at the time of the deceased’s death (at [122]), she did not allow the applicants’ application to extend time to bring the TFM claim.

3.Her Honour made a material error that vitiated the exercise of her discretion in that she gave weight to, or too much weight to, any one or more of the following factors when considering the application:
(a)the length of delay in bringing the application to extend the time for bringing a TFM claim following the deceased’s death when an adequate explanation of that delay was provided;
(b)that the length of delay in bringing the application following the plaintiff’s death was ‘burdensome’ when it was not;
(c)that the respondents were prejudiced by reason of the applicants’ delay in bringing the application to extend time when they were not;
(d)that Mrs Brown would have been an important witness when she was not;
(e)that the evidence given by Mr Tehan was in any way relevant when it was not;
(f)that it was difficult to assess the financial position of the plaintiffs at the time of the deceased’s passing;
(g)that the respondents may have organized their affairs having known of the terms of the deceased’s will for many decades when there was no evidence to that effect;
(h)that the bringing of the application to extend time for the TFM claim has caused prejudice to the respondents because it delayed the distribution of the estate to the remainder beneficiaries, when the prospective TFM claim was to establish whether the remainder beneficiaries had any such claim;
(i)that the bringing of the application to extend time for the TFM claim has caused prejudice to the respondents because it has held the remainder beneficiaries out of their entitlements from the estate of Mrs Brown (which estate is also being disputed by the applicants) when it did not.

4.Her Honour made a material error that vitiated the exercise of her discretion in that she did not give weight or sufficient weight to any one or more of the following factors when considering the application:
(a)that the work the applicants had performed on the farm in clearing and maintaining the land and running the farm before the death of their father, without receiving any or any proper remuneration, helped build up the estate of the deceased;
(b)that a wise and just testator at the time of his death would have realised that in order for his wife and infant children to continue to live on the farm and be maintained it would be necessary for the applicants to also live on the farm and work it without proper remuneration;
(c)that a wise and just testator at the time of his death would have realised that there would be substantial death duties payable on his estate and that in order for his wife and infant children to continue to live on the farm and be maintained it would be necessary for the applicants to also live on the farm and work without proper remuneration;
(d)that a wise and just testator at the time of his death would have realised that the provisions of his will would not have allowed for the applicants to reside in any property on the farm after the death of his wife and that, in the circumstances, it would be proper for him to make a provision for the applicants accordingly.

Submissions for the applicants

Under proposed grounds 1 and 2, the applicants submitted that the associate judge had wrongly embarked on a detailed analysis of their potential claim, in effect hearing the substantive claim even though the matter before her was an application for an extension of time. It was submitted that the merits of the potential claim were only relevant in those cases where it could be said that, because the claim was hopeless, an extension of time should be refused. Put differently, the relevant determination to make was whether there was evidence of an arguable case.[32]
[32]Ansett v Moss [2007] VSCA 161 [6], [11] (Buchanan JA, with Redlich JA and Cavanough AJA agreeing); Groser v Equity Trustees Ltd (2007) 16 VR 101, 115 [82], 116 [89], 117 [92] (Gillard J) (‘Groser’); McCann v Ward [2010] VSC 452 [11] (John Dixon J); Harrison [2011] VSC 459 [291] (Kaye J); Bennett v Pettitt [2012] VSC 234 [30] (McMillan J).

It was further submitted that the principal test that ought to be applied was whether or not the case was hopeless. The associate judge had found that the claim had ‘modest prospects of success’ and that special circumstances had been demonstrated on the part of the applicants as adult sons. It was submitted that it was therefore appropriate for the applicants to be granted an extension of time. The ultimate question was said to be whether the applicants were ‘getting proper justice’.[33]
[33]Groser (2007) 16 VR 101, 107 [37]–[38] (Gillard J).

Under proposed ground 3, the applicants pointed to nine matters in respect of which it was said that the associate judge either gave weight or gave too much weight when considering the application. The first four concerned the delay since the death of Mr Maher. It was submitted that there was an adequate explanation for that delay in the conversation the applicants had with their mother after Mr Maher’s death. The associate judge had accepted that this was a ‘plausible explanation for the delay’.[34] It was submitted that the primary reason for the delay was the extraordinary longevity of Mrs Brown. It was further contended that there was no actual prejudice as a result of the delay. It had not been said that a fair trial would not be possible. It was submitted that no evidence or documents had been lost as a result of the delay. There was no evidence that any of the respondents had arranged their affairs on any particular basis. Although Mrs Brown was no longer available as a witness, it was submitted that the evidence of the relevant conversation was clear and that it was not apparent what more evidence she could have given. The proper claims of the various family members were said to be clear from the available facts and not to require oral evidence on the part of Mrs Brown. It was submitted that the evidence that Mrs Brown might have given may have had some relevance to the RCA claim and certain payments made and received by her but that was all. The comparative financial positions of the parties would primarily be a matter of forensic evidence.
[34]Reasons [130].

The fifth matter was that it was submitted that the evidence of Mr Tehan was irrelevant. Sixthly, the applicants submitted that the fact that it was difficult to assess the financial position of the applicants at the time of Mr Maher’s death was not relevant on the preliminary application to extend time. Evidence in some form could have been provided at trial if an extension were granted. Seventhly, it was submitted that the associate judge erred in placing weight on the possibility that the respondents ‘may’ have organised their affairs on the basis of Mr Maher’s will, when there was no evidence to that effect. Next, it was submitted that the delay in distribution of the estate to the remainder beneficiaries could not be counted as prejudice when the question was whether, if a claim was to be brought, there should have been any such distribution in the first place. Finally, it was submitted that delay in distributing the estate of Mrs Brown could not be attributed to the bringing of the applications to extend time in relation to Mr Maher’s will.

The fourth proposed ground of appeal points to four factors to which it was submitted the associate judge gave insufficient weight, namely: (a) the work performed by the applicants on the farm without proper remuneration which helped to build up Mr Maher’s estate; (b) the fact, it was submitted, that a wise and just testator at the time of Mr Maher’s death would have realised that (i) in order for his wife and infant children to continue to live on the farm and be maintained and (ii) to meet the substantial death duties that would be payable on the estate, it would be necessary for the applicants also to live on the farm and work on it without proper remuneration; and (c) the suggested fact that a wise and just testator would have realised that the provisions of the will did not allow for the applicants to reside in any house on the farm after the death of his wife, so that it would be proper for him to make provision for the applicants in that regard.

Counsel for the applicants expanded on the written submissions. It was submitted that the applicants had not approached the hearing before the associate judge as the trial of the merits of the claim, but as an ordinary application for an extension of time. The trial was said to have lasted over four days principally because of the length of the cross-examination of the applicants, mainly as to their credit, and because Thomas produced documents on the third day of the trial that nobody had previously seen, causing the matter to have to be stood down for some hours. It was submitted that the applicants’ evidence simply dealt with the question whether they had a special claim within the meaning of the law governing s 91.

Counsel paid particular attention to [122] of the reasons of the associate judge, which is set out above.[35] In that regard, it was submitted that the applicants had only recently come to understand their legal rights and had not known their true legal position, and therefore could not be said to have made a valid election at the time of their father’s death not to contest his will. It was submitted that delay of itself is not a relevant factor but that the critical question is whether prejudice had been suffered. It was submitted that no evidence or documents had been lost and that no party could be shown to have arranged their affairs on any particular basis. It was further submitted that the associate judge placed undue weight on the fact that the applicants may have an ‘alternative remedy’ against Mrs Brown’s estate. Any such remedy would only entitle them to the ‘Thompsons’ land, whereas their potential claim against Mr Maher’s estate extended to the Fine View land including the cattle yards, water infrastructure and sheds, as well as the house and other improvements.
[35]See [29] above.

It was submitted that the associate judge was not in a position to make the findings about the relative values of the bequests in [142] of her reasons.[36] The bequests of livestock and equipment had not been generous, but were simply what was required in order to enable the four eldest sons to continue running the farm. It was premature to make suppositions about what was and was not available in the estate, because doubt remained about the status of the RCA compensation payment and obligations of the estate to Maher Bros in respect of the payment of probate duties.
[36]See [34] above.

It was submitted that the applicants deserve recognition for managing the property and looking after their mother during her life interest. It was submitted that a wise and just testator should have recognised that there would be a need to look after both the farm and the infant children and that Mrs Maher could remarry, making the property unavailable to the applicants during her lifetime.

In conclusion, it was submitted that the fact that the applicants had established a ‘special claim’ as adult sons and that their case was arguable ought to have outweighed the other matters upon which the associate judge relied.

Submissions of the respondents

The first to seventh respondents, being the remainder beneficiaries, submitted that the decision whether or not to grant leave under s 99 of the Act was a discretionary one to which the principles in House v The King[37] were applicable. It was therefore necessary to show that the associate judge had acted on a wrong principle, allowed extraneous or irrelevant matters to guide her, mistaken the facts or not taken into account some material consideration.[38] It was submitted that the associate judge had relied on the five distinct considerations set out at [122] of her reasons.
[37](1936) 55 CLR 499.
[38]Hunt v Holcombe [2018] VSCA 248 [36]–[38], [51] (Beach, Kaye and Niall JJA).

In respect of proposed grounds 1 and 2, it was submitted by the first to seventh respondents that, unlike in Ansett v Moss, the strength of the case was not a determinative factor. It was submitted that the associate judge was entitled to make a finding as to the strength of the claims based on the material placed before her. In particular, the applicants had sought to show exactly what each of their financial situations was in 1975. In those circumstances, the associate judge necessarily assessed the strength of their claim based on the evidence.

It was further submitted that the fact that an applicant has an arguable case is not, without more, a sufficient reason to extend time.[39]
[39]Harrison [2011] VSC 459 [291] (Kaye J); Erlich v Fleiszig [2013] VSC 63 [8] (Lansdowne AsJ).

In relation to proposed ground 3, it was submitted that the associate judge correctly synthesised the material considerations in exercising her discretion. She treated the length of delay in bringing the proceeding as only one factor, without it being determinative. It was submitted that prejudice in being able to defend the claim is one of the most important factors. The death of Mrs Brown and other witnesses, and the difficulty in now being able to assess the financial position of all the parties at the time of Mr Maher’s death and to evaluate accurately the benefits conferred under the will, were examples of some of the prejudice which the respondents would face in having to defend a claim brought now. It was submitted that the fact that the remainder beneficiaries may have organised their affairs in the expectation of receiving a benefit had been recognised in other cases and that the fact that their rights had become prima facie indefeasible was also a material consideration.[40]
[40]Re Lauer [1984] VR 180, 185 (Young CJ); Amos v Amos [1966] VR 442, 443 (Lush J).

The first to seventh respondents submitted that the inability to call Mrs Brown and the lack of recall on the part of Mr Tehan constituted further prejudice, given that the applicants relied on what was said by each of them in order to explain their delay in making a claim. It was suggested, but in the end not pressed, that Mrs Brown may have had a claim herself, especially given the conflicting evidence regarding her status in the family and her circumstances at the date of Mr Maher’s death.

In relation to proposed ground 4, it was submitted that the matters relied upon all concerned the strength of the applicants’ potential claims and that the associate judge had considered the submissions in relation to those matters and made findings. It was further submitted that it could be inferred, from the finding of the associate judge that Maher Bros was able to accumulate substantial land holdings between 1968 and 1973, that the partnership itself, and each of the applicants, did receive remuneration for their work on the farm.

Finally, the written case for the first to seventh respondents submitted that there were several proper bases on which the discretion could have been exercised, including the finding that the applicants may have an alternative remedy against Mrs Brown’s estate. The associate judge had addressed whether the applicants were ignorant of their rights and found that they were not; she found that their claims were ‘flawed’; and she had addressed the prejudice to other beneficiaries in terms of the evidence that could be called if the matter proceeded.

In oral submissions, counsel for the first to seventh respondents submitted that the applicants were successful farmers who had acquired a large amount of land and were not living on a pension. It was submitted that this weighed against them given that the question under s 91 would be to decide what provision ought now be made for them from the estate, especially given comparison with the relatively modest circumstances of the remainder beneficiaries. Attention was also drawn to the parts of the cross-examination where the applicants had accepted that, if they had received their mother’s land under her will, they would probably not be seeking an extension of time in which to challenge their father’s will. It was submitted that the applicants had not been totally ignorant of their rights. They had accepted soon after their father’s death that they would not get his land.

Counsel submitted that prejudice arose from the effluxion of the time and the absence of Mrs Brown as a witness. It was submitted that her absence could not be ignored, especially given that she had wanted Mr Maher’s estate to be administered in accordance with his will. It was submitted that the merits of the proposed claim were weak as at the date of Mr Maher’s death and had become even weaker as a result of the current financial positions of the parties.

It was further submitted that the prospects of success were in fact hopeless. At the time of Mr Maher’s death, Maher Bros owned about 1,430 acres of land and the applicants had established farming careers. It was wise and just to leave the remainder interest to the other children, in circumstances where the older sons had also, as partners of Maher Bros, received the livestock, plant and equipment needed to continue the business that had been established. The younger children had more uncertain futures and the remainder interest accommodated them appropriately.

In oral submissions, the solicitor for the eighth respondent, being the administrator of Mr Maher’s estate, supported the submissions made on behalf of the other respondents in opposition to the application for leave to appeal. It was submitted that the administration of the estate had been prejudiced by the passing of time. It was also submitted that Mrs Brown could have given evidence about various issues between the parties, including as to whether Mr Maher ought to have realised that his sons would need to continue living on the farm and as to what benefits the applicants had received from use of the estate properties.

Proposed grounds 1 and 2 — incorrect approach to merits

The first two proposed grounds of appeal may be considered together. In effect, they assert that the associate judge erred by undertaking too detailed an analysis of the claims and then, having found that the applicants would have had a ‘special claim’ despite being adult sons of the deceased and that the claims would have modest prospects of success, failing to grant the extension of time sought.

To address these arguments, it is necessary to start with the principles governing an application for extension of time under s 99 of the Act.

Section 91 of the Act, as it stood at the time of Mr Maher’s death, permitted the Court, on application by the widow, widower or children of a deceased person to ‘order that such provision as the Court thinks fit shall be made out of the estate of the deceased for such widow widower or children’ if the distribution of the estate under the will of the deceased and any relevant provisions as to intestacy were ‘such as not to make adequate provision for the proper maintenance and support’ of the applicant.

Section 99 provided for the time within which applications may be made, relevantly as follows:

No application shall be heard by the Court … unless that application is made within six months after the date of the grant of probate of the will … :

Provided that the time for making an application may be extended for a further period by the Court or judge after hearing such of the parties affected as the Court or judge thinks necessary, and this power shall extend to cases where the time for applying has already expired but in all such cases the application for extension shall be made before the final distribution of the estate and no distribution of any part of the estate made prior to the application shall be disturbed …

It is immediately apparent that the Court acting under s 99 exercises a discretion and that the statute provides no specific criteria in that regard. Naturally, the discretion must be exercised in accordance with the subject matter, scope and purpose of s 91 itself. But the discretion is not confined by any rigid rules.[41]
[41]Ansett v Moss [2007] VSCA 161 [6] (Buchanan JA, with Redlich JA and Cavanough AJA agreeing); Harrison [2011] VSC 459 [289] (Kaye J).

On the other hand, some matters will ordinarily be relevant. They include the length of the delay, the reasons for the delay, whether prejudice to other interested parties would result from making an order (other than the prejudice inherent in disturbing the terms of a distribution which would have been in their favour), and the strength of the case.[42] Other considerations may also be relevant, depending on the nature of the case.
[42]Ansett v Moss [2007] VSCA 161 [11] (Buchanan JA, with Redlich JA and Cavanough AJA agreeing); Harrison [2011] VSC 459 [289]–[291] (Kaye J); McCann v Ward [2010] VSC 452 [11] (John Dixon J); Groser (2007) 16 VR 101, 105–6 [28]–[29], 107 [37] (Gillard J).

The fact that these factors are relevant does not mean that an applicant is required to satisfy the Court as to each of them individually. For example, it has been noted that an extension may be granted where delay has not been satisfactorily explained.[43] Rather, a balancing exercise is involved in which the Court addresses the question whether an extension of time is in the interests of justice, having regard to the purpose of s 91 to enable proper provision to be made for those eligible to make applications.[44]
[43]Ansett v Moss [2007] VSCA 161 [6] (Buchanan JA, with Redlich JA and Cavanough AJA agreeing); Harrison [2011] VSC 459 [289] (Kaye J).
[44]Re Guskett [1947] VLR 212, 214 (Herring CJ); Groser (2007) 16 VR 101, 106 [31], 107 [38] (Gillard J).

In particular, while the strength of an applicant’s claim for relief is a relevant factor to be considered, along with other factors, that consideration is not determinative except in cases where the prospects are hopeless, so that extending time would be futile.[45] Conversely, the fact that a case is arguable does not, of itself, mean that time must be extended.[46]
[45]Ansett v Moss [2007] VSCA 161 [11] (Buchanan JA, with Redlich JA and Cavanough AJA agreeing); Harrison [2011] VSC 459 [291] (Kaye J); McCann v Ward [2010] VSC 452 [11] (John Dixon J); Groser (2007) 16 VR 101, 107 [39] (Gillard J).
[46]Harrison [2011] VSC 459 [291] (Kaye J); Bennett v Pettitt [2012] VSC 234 [30] (McMillan J); Re Lauer [1984] VR 180, 186 (Young CJ); Ashhurst v Moss (2006) 14 VR 291, 316–7 [110]–[111] (Hansen J); Groser (2007) 16 VR 101, 107 [39] (Gillard J).

The discretionary nature of the power to extend time is also important because it points to the test to be applied in an appeal against the exercise of the power. The principles in House v The King are attracted, namely:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[47]

[47](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).

The first two proposed grounds of appeal contend that the associate judge fundamentally misunderstood her task under s 99 by going beyond a determination as to whether the case was arguable. It was said that the inquiry should go no further than to see whether the case was hopeless. It was also said (under proposed ground 2) that, if the case was arguable, an extension should be granted. The principles referred to above show that the latter proposition must be rejected. To grant leave solely on that basis, without having regard to other relevant considerations, would itself constitute House v The King error.

While the authorities support the view that the hopelessness of a case, of itself, justifies refusing an extension, it does not follow that the strength of the proposed claim is otherwise irrelevant, or that a judge is precluded from evaluating the merits other than by placing the case on one side of the line delineating arguable from hopeless cases. At the same time, the applicants are correct to say that ordinarily the Court does not embark on a detailed analysis of the claim.[48] But each case will be different in that regard.
[48]Harrison [2011] VSC 459 [291] (Kaye J).

In the present matter, the associate judge heard evidence of a much more extensive kind than is often the case in such applications. We accept that the applicants mounted their case on the basis that, given the lapse of time since the death of their father, it was necessary to establish that, as able-bodied sons of the deceased, they had ‘special claims’ or ‘special needs’ as those concepts were understood according to the law then governing applications.[49] Necessarily, that entailed more detailed evidence than might otherwise be the case. We also accept that the applicants did not seek to establish anything more than an arguable case in the hearing before the associate judge.
[49]Hughes (1979) 143 CLR 134, 147–8 (Gibbs CJ); Re Sinnott [1948] VLR 279, 280–1 (Fullagar J).

The associate judge therefore overstated the position when she said that the parties had ‘conducted themselves as if it were a full trial’.[50] On the other hand, it was true to say that the associate judge had the benefit of extensive affidavit evidence and that there had been extensive cross-examination, at least of the plaintiffs. Moreover, it has not been shown that she was wrong to say that it was difficult to see what further evidence could be called or submissions made. Counsel for the applicants referred in that regard to uncertainty about the fate of the RCA payment and outstanding liabilities among the parties in respect of the payment of probate duties, but those matters go to the current assets of the estate. While the associate judge took account of the financial circumstances of the parties at the time of trial as being relevant to the contingencies to which Mr Maher ought to have had regard when making dispositions of property under his will,[51] her assessment of the merits was based substantially on the circumstances that existed at the time of Mr Maher’s death. On that subject, it seems that the evidence was about as comprehensive as it was ever likely to be.
[50]Reasons [17(c)].
[51]Ibid [18]. See Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494, 508 (Dixon CJ).

In those circumstances, the associate judge was in a position to make a more informed assessment of the merits of the case than usual. She did say that she was able to ‘come to more than a preliminary view’ and to ‘form a reasonably confident view’ as to the merits.[52] However, she did not purport to decide the claims or to treat the application as if it had been a final hearing. Instead, she formed a necessarily provisional view of the merits, based on the material before her, which was in relevant respects essentially complete.
[52]Ibid [17(d)].

Critically, the associate judge’s ultimate conclusion was that the claims did ‘not have sufficient prospects of success’ to warrant an extension, having regard to the delay, the reasons for it and the prejudice to the remainder beneficiaries she identified.[53] In other words, the associate judge treated her impression of the prospects of success, based on the available evidence, as only one of the factors bearing on her discretion. It was not determinative. There is no reason why such an assessment could not be conducted and taken into account in that way. In particular, there is no rule or principle that an arguable case must be allowed to proceed, or that the Court cannot venture into the strength of the case beyond threshold considerations.
[53]Ibid [122(c)].

For these reasons, there was no error in the way in which the associate judge approached the question of the strength of the potential claims of the applicants. While leave should be granted to argue proposed grounds 1 and 2, they must be rejected.

Proposed ground 3 — irrelevant considerations or excess weight

Under the third proposed ground of appeal, the applicants point to nine considerations taken into account by the associate judge which they argue were either irrelevant or warranted lesser weight.

The principles in House v The King do not suggest that an appeal may succeed on the basis that a given consideration, while relevant, has been given too much weight. Likewise, it is not enough to show that a particular relevant matter was given insufficient weight. Neither of those circumstances indicates that the decision maker had erred in the exercise of the discretion, only (at best) that the appellate court would have ‘taken a different course’.[54] Sometimes, however, an argument of this kind might turn out to reveal a mistake as to the facts, which may attract House v The King.
[54]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

Proposed ground 3 essentially takes issue with a series of findings made by the associate judge. It does not assert that any particular matter that she considered was irrelevant to the exercise of the discretion. So, under the first six particulars it is contended that there was an adequate explanation of the delay, that the delay was not burdensome on or prejudicial to the respondents, that Mrs Brown and Mr Tehan would not have been important witnesses, and that it was not difficult to assess the financial position of the applicants at the time of Mr Maher’s death. Each of those matters was relevant for the associate judge to consider and make findings about, and she did so. The applicants point to no mistake of fact in reaching the findings. They instead contest a series of judgments based on undisputed facts. No House v The King error would be established by persuading us, without more, that different judgments as to these matters would have been preferable.

However, it may also appear that, while no irrelevant considerations were taken into account, all relevant matters were considered and no mistake was made as to the facts, a decision is so unreasonable or unjust that it may be inferred that there has been an error in exercising the discretion, even though no specific error can be identified.[55] The treatment of the matters just identified may therefore be relevant in this way.
[55]Ibid. See also Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, 360 (Dixon J).

It is convenient first to consider the remaining three matters identified in relation to proposed ground 3. First, it is said that there was no evidence to the effect that the respondents may have organised their affairs for many decades having known of Mr Maher’s will. The short answer to this contention is that the associate judge found only that the respondents ‘may’ have so organised their affairs.[56] That conclusion was obvious and did not call for evidence. The associate judge relied on the observation of Nicholson J in Re Nassim to the effect that an obvious purpose of the time limit in s 99 is to enable some certainty about the ordering of the affairs of the named beneficiaries of the estate.[57]
[56]Reasons [134].
[57][1984] VR 51, 57. See also Re Barrot [1953] VLR 308, 312 (Sholl J); Amos v Amos [1966] VR 442, 443 (Lush J); Re Lauer [1984] VR 180, 185 (Young CJ).

Secondly, it is contended that delay in distributing Mr Maher’s estate could not be counted as prejudice to the respondents, because the question was whether the respondents should actually have a claim at all. The third point is related. It is that the associate judge was wrong to find that the application to extend time had held the remainder beneficiaries out of their entitlements from Mrs Brown’s estate. Reliance is placed on the following passage in the associate judge’s reasons:

I agree that there is also other prejudice to the remainder beneficiaries by the making of such a late application for an extension of time. First, while I agree that no relevant prejudice is occasioned to the remainder beneficiaries merely by being exposed to a claim by the plaintiffs under Part IV of the Act, the question of delay is relevant. The remainder beneficiaries have presumably known of the terms of the deceased’s will for many decades, and may have organised their affairs accordingly. Further, these proceedings have not only delayed the distribution of this estate to the remainder beneficiaries, they have also held the plaintiffs and the remainder beneficiaries out of their entitlements from the Brown estate. While the Brown estate is the subject of claims under Part IV of the Act, one might have expected that, given those proceedings were issued in 2016, that the trial of the Brown estate proceedings would have at least been heard by now, if not determined.[58]

[58]Reasons [134] (footnote omitted).

In this passage, the associate judge is addressing prejudice caused by delay. It is plain that she recognised that merely being exposed to a claim does not constitute relevant prejudice. To the extent that she found that the applications to extend time had themselves delayed distribution of either estate to the remainder beneficiaries, she made it clear that she did not attach weight to the delay in bringing the applications on the part of David and Anthony (as distinct from Thomas), after they were informed by their solicitor, following Mrs Brown’s death, of their rights to challenge their father’s will.[59] Moreover, read in context, we do not think that the associate judge was stating that there was prejudice to the remainder beneficiaries in the delayed distribution of their claims under Mr Maher’s will, independently of her first reason for finding prejudice (the possibility that they had organised their affairs on the basis of that will). That interpretation of her reasons would be at odds with the explicit recognition that being exposed to a claim is not prejudicial of itself.
[59]Ibid [127]–[128].

As far as Mrs Brown’s estate is concerned, prejudice in that regard, if established, would plainly be a relevant matter. The claim in this context is that the finding was wrong. To constitute a basis for appeal under House v The King, this would need to involve a mistake as to the facts. No specific mistake was suggested, but it may be accepted that the finding is said to be factually mistaken. But the finding has not been shown to be wrong. In circumstances where distributions under the wills of both husband and wife are in dispute, and the fact of the wife’s alleged promise to her eldest sons is in issue in both contexts, the inference is plain enough that the application in respect of Mrs Brown’s estate will have been held up to some degree while the status of Mr Maher’s estate remains in doubt.

It will be necessary to return to the matters raised under proposed grounds 3 and 4 cumulatively to consider whether the decision is so unreasonable or plainly unjust that the discretion must not have been properly exercised. In the meantime, it can be said that the associate judge’s treatment of the matters relied upon under proposed ground 3 does not reveal any specific error.

Proposed ground 4 — no or insufficient weight to relevant considerations

Under the fourth and final proposed ground of appeal, the applicants point to four matters to which it is said that no weight, or insufficient weight, was given. Again, the giving of insufficient weight is not, of itself, a ground of appeal under House v The King.

The four matters all concern the merits of the potential claim: (a) the role of the applicants in building up the estate; (b) the suggested realisation on the part of a wise and just testator that the applicants would need to live and work on the farm, without proper remuneration, in order to (i) maintain the farm for Mrs Maher and the children and (ii) to pay probate duties; and (c) the further realisation that the provisions of the will did not allow the applicants to live on the farm after the death of Mrs Maher and that it would be proper to make provision for them accordingly.

In fact, the associate judge did deal with these matters. It cannot be said that she gave them no weight. She simply gave other matters greater weight in her assessment of the merits. She noted that there was nothing to suggest that Mr Maher had acquired any land for himself after the applicants started working on the farm. She accepted that their work had contributed to the number and value of the livestock, but Maher Bros and Mrs Maher received the livestock under the will. She accepted that they had a claim for unpaid wages, but there needed to be offset the cost of board and keep and, arguably, some allowance for their use of the estate land to conduct the Maher Bros business.[60] She concluded, after accepting that the applicants would have a ‘special claim’:

having regard to the size of the estate, particularly net of probate duties, the principle of freedom of testation, and the financial position and prospects of the plaintiffs compared with that of Mrs Brown and the remainder beneficiaries, the most probable outcome of any such inquiry would have been a finding that the testator had discharged his moral duty to the plaintiffs.[61]

[60]Ibid [139]–[140].

[61]Ibid [140].

Proposed ground 4 therefore amounts to an attack upon the associate judge’s assessment of the merits, rather than a House v The King ground. The matters relied upon can only be considered, therefore, in the context of asking whether the decision was so unreasonable or unjust that it must have been infected by unidentifiable error.

Was the decision unreasonable or unjust?

The final question is whether the decision to refuse the application to extend time was unreasonable or unjust in the relevant sense. For the following reasons, it was not. Further, if specific error had been identified, we would have made the same decision ourselves in the fresh exercise of the discretion.

In the first place, the case involves extraordinary delay. Irrespective of the explanation for the delay, to which we will turn shortly, we think it inevitable that the delay, amounting to over 40 years, would prejudice the fair hearing of the potential claims. The loss of records, and the unavailability of Mrs Brown to give evidence, mean that the determination of the financial position of the applicants in 1975 would be beset by difficulty. The evidence revealed disputes and doubts as to the actions of Mrs Brown in managing the finances of the farm. Mrs Brown might well have given other evidence as to the financial arrangements for the farm and the

household.[62] Further, as already noted, it is hard not to think that the remainder beneficiaries, or some of them at least, would have arranged their affairs partly in the expectation that they would receive their interests under Mr Maher’s will upon the death of their mother. Indeed, it seems obvious that Mrs Brown would have made her own will on the same assumption.
[62]We do not place significant weight on the fact that Mrs Brown could have given evidence about her conversation containing the alleged promise. The reason for delay would not be an issue on the substantive claim. The preparedness of David and Anthony to accept Mrs Brown’s land instead of their father’s, against their case, is admitted and would not require Mrs Brown’s evidence. However, it is possible that Mrs Brown could have said more as to the circumstances in which the alleged conversation took place.

More fundamentally, the length of delay in this case is such as to give rise to untold prejudice, being the prejudice involved in the loss of evidence of unknown nature and extent. This was explained by McHugh J in Brisbane South Regional Health Authority v Taylor in the following terms:

The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates.’ Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.[63]

[63](1996) 186 CLR 541, 551 (citations omitted).

Next, the explanation for the delay, while readily understandable, carries with it a fundamental contradiction. It involves the applicants having accepted, on their mother’s promise, that they would receive her land but that they would never receive the land they now seek to claim. In other words, knowing of the terms of their father’s will, they chose not to contest it but to accept an alternative bequest. It may be accepted that the applicants did not seek legal advice at the time and so were not fully informed about their rights, in particular as to the time limits for seeking provision under s 99. But they knew that they could contest the will and were willing to accept a compromise instead. Further, they accepted that, had the promise by their mother been honoured, they would not, or probably would not, have sought to claim their father’s land.

This incongruity in the applicants’ case also undermines the argument that a wise and just testator would have made provision for the moral claims of the applicants arising from the continued need for them to farm the land. On their own case, they were prepared to accept the loss of the land in question, in return for different land. They therefore recognised that they could have continued their farming business without owning Mr Maher’s land and knowing that they would ultimately stand to lose access to the house in which they were living, together with associated farming infrastructure.

In that context, it is significant that Mr Maher’s will left the livestock and plant to the Maher Bros partners and Mrs Maher. It was plainly envisaged by the testator that Maher Bros would continue in operation and make use of the farm for that purpose, at least in the short term. The business was, in effect, passed to the four eldest sons when the partnership agreement was executed in 1967. The bequest of livestock and plant to them enabled that business to continue. The testator must have contemplated, as has happened, that the applicants would have use of the farm as part of the Maher Bros business at least for some time while their mother remained alive, and potentially even if she were to remarry. But it does not follow that the applicants had a moral claim to ownership of the farm as well.

Also relevant to an assessment of the merits is the evidence concerning the financial positions of the remainder beneficiaries. By reason of their relative youth at the time, their financial needs could be met in the short term by the running of the farm, and in the long term by a remainder interest that would allow them either to come to an arrangement with Maher Bros or to sell the land after their mother’s death and use the proceeds for other purposes. Further, the evidence of the current financial positions of the parties suggests that, whereas the applicants have accumulated significant landholdings, through their own endeavours but plainly assisted by the farming business to which they succeeded and their ability to use the farm and house during their mother’s lifetime, the remainder beneficiaries did not receive a similar start in life and are generally speaking less well-off financially. This bears also on the prospects of success.

We do not accept that the associate judge was not in a position to evaluate the relative provisions made for the siblings by reference to the inventory of assets of Mr Maher’s estate.[64] The fact that the estate subsequently incurred debts to pay probate duties, and received the RCA compensation, does not undermine that analysis, conducted as at the date of Mr Maher’s death. That analysis indicated that the bequest to the Maher Bros partners (excluding the gift of ‘Barnong’ to Thomas) was worth about $10,000 per person, whereas the remainder beneficiaries each stood to receive about twice that amount, but not until their mother had died.[65] Taken with the establishment of Maher Bros itself during Mr Maher’s lifetime, we tend to agree with the associate judge that this material suggests that the provision made for the applicants can be described as reasonably generous.
[64]Reasons [142]; see [34] above.
[65]This figure is likely to be overstated as account does not appear to have been taken of debts that could have been expected to be incurred in the future administration of the estate.

For these reasons, we regard the applicants’ prospects of success as low and think that real prejudice has ensued from their delay in acting. In circumstances where that delay was occasioned by their preparedness to accept different land by way of compromise, foregoing the land now sought to be claimed, the decision to refuse an extension of time was not unreasonable or unjust. To the contrary, we consider that it was correct.

Conclusion

The application for leave to appeal should be granted, but the appeal must be dismissed.

- - -

SCHEDULE OF PARTIES
BETWEEN:
DAVID JOHN MAHER  First Applicant
ANTHONY CHARLES MAHER  Second Applicant
and
DAMIEN MAHER  First Respondent
ROSEMARY MARGARET JOHNSTON  Second Respondent
CHRISTINE BURDEN  Third Respondent
PATRICIA ANNE MAHER  Fourth Respondent
JOHN JOSEPH MAHER  Fifth Respondent
DESMOND FRANCIS MAHER  Sixth Respondent
MICHAEL JAMES MAHER  Seventh Respondent
NATHAN KUPERHOLZ, (who is sued in his
capacity as Administrator and Trustee of the estate
of Thomas Patrick Maher, deceased, with Will annexed)  Eighth Respondent

Citations

Maher v Maher [2019] VSCA 161

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[2019] VSCA 161

3 July 2019