Marshall v Marshall
[2001] WASC 300
MARSHALL & ORS -v- MARSHALL [2001] WASC 300
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 300 | |
| Case No: | CIV:1841/2001 | 23 OCTOBER 2001 | |
| Coram: | MASTER SANDERSON | 6/11/01 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Leave to commence action granted | ||
| B | |||
| PDF Version |
| Parties: | BRIAN RICHARD MARSHALL PATRICIA FAYE MARSHALL LILIAN MARY GRAYSON ANDREW JOHN MARSHALL FLORA JOAN MARWICK ALFRED DENNIS MARSHALL |
Catchwords: | Inheritance (Family and Dependants Provision) Act 1972 Application for leave to commence action out of time Turns on own facts |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972, s 7(2)(a), s 7(2)(b) |
Case References: | Clayton v Aust (1993) 9 WAR 364 Dobra v Brennan [1999] WASC 98 Grigoriou v George Nitsos [1999] WASCA 42 Brown v Holt (1961) VR 435 Nanke v Nunn (1967) WAR 79 Re Barrett (Dec) 1953 VLR 308 Re Gaskett (Dec) (1947) VLR 212 Re Lauer (Dec) (1984) VR 180 Re Prakesh (1981) QdR 189 Re Salmon (Dec) [1981] Ch 170 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
The Will of RICHARD JOHN MARSHALL (DEC)
BETWEEN : BRIAN RICHARD MARSHALL
- PATRICIA FAYE MARSHALL
LILIAN MARY GRAYSON
ANDREW JOHN MARSHALL
FLORA JOAN MARWICK
Plaintiffs
AND
ALFRED DENNIS MARSHALL
Defendant
Catchwords:
Inheritance (Family and Dependants Provision) Act 1972 - Application for leave to commence action out of time - Turns on own facts
(Page 2)
Legislation:
Inheritance (Family and Dependants Provision) Act 1972, s 7(2)(a), s 7(2)(b)
Result:
Leave to commence action granted
Category: B
Representation:
Counsel:
Plaintiffs : Mr I T Blatchford
Defendant : Mr D J Miller
Solicitors:
Plaintiffs : Greenland Brooksby
Defendant : Marks & Sands
Case(s) referred to in judgment(s):
Clayton v Aust (1993) 9 WAR 364
Dobra v Brennan [1999] WASC 98
Grigoriou v George Nitsos [1999] WASCA 42
Case(s) also cited:
Brown v Holt (1961) VR 435
Nanke v Nunn (1967) WAR 79
Re Barrett (Dec) 1953 VLR 308
Re Gaskett (Dec) (1947) VLR 212
Re Lauer (Dec) (1984) VR 180
Re Prakesh (1981) QdR 189
Re Salmon (Dec) [1981] Ch 170
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1 MASTER SANDERSON: This is the plaintiffs' application for leave to commence proceedings out of time. Pursuant to the provisions of s 7(2)(a) of the Inheritance (Family and Dependants Provision) Act 1972 ("the Act"), an application is to be made within six months from the grant of probate. However, under s 7(2)(b), the time for bringing the application can be enlarged provided "the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time". In this case Richard John Marshall ("the deceased") died on 2 August 1997. Probate of his Will was granted to the defendant on 14 April 1999. The time limited for bringing this application expired then in mid-October 1999. This application was not brought until 20 June 2001. By the time this application was brought the action was 20 months out of time.
2 The principles relevant to an application such as this have been considered on numerous occasions. In this jurisdiction they were conveniently set out by Malcolm CJ in Clayton v Aust (1993) 9 WAR 364 at 366 - 367. His Honour was dealing with an appeal from a decision of a Master of this Court. His Honour said:
"Relevant principles
The learned Master said that:
'The general approach to this type of case has been well set out by Megarry VC in Re Salmon (deceased) [1981] Ch 170 at 175:
"The time limit is a substantive provision laid down by the Act itself and it is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedure rules. The burden on the applicant is thus, I think, no triviality: the applicant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time." '
It should be noted that the above passage was a statement of one of three guidelines or principles stated by Sir Robert Megarry after a review of authorities on s 4 of the Family Provision Act 1966 (UK), which provided that:
'An application for an order under section 2 of this Act shall not, except with the permission of the court, be made after the end of period of 6 months from the date on which
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- representation with respect to the estate of the deceased is first taken out.'
- As with s 7(2) of the Western Australian Act, the English provision gave no guidance regarding the principles upon which the jurisdiction to extend time was to be exercised. The Vice-Chancellor then endeavoured to derive some principles from Re Ruttie [1970] 1 WLR 89; [1969] 3 All ER 1633 and Re Gonin (deceased) [1977] 2 All ER 720, noting that the report of the latter case in [1979] Ch 16 omitted what the judge said about the extension of time. After reviewing these two cases, Megarry VC said in Re Salmon (deceased) [1981] Ch 170 at 174-175:
'I am anxious not to go further than is proper in attempting to discover guidelines in exercising the court's discretion under s 4. I bear in mind what Ungoed-Thomas J said on this; and in saying what I do, I disclaim any intention to lay down principles, although I am not sure that it makes it much better to use the term 'guidelines' in place of 'principles'. However, after 14 years I think that some progress can be made towards to identifying some guidelines. A number of points seem reasonable plan. The first two are sufficiently supported by Re Ruttie [1970] 1 WLR 89 at 93; [1969] 3 All ER 1633 at 1636-1637. First, the discretion is unfettered. No restrictions or requirements of any kind are laid down in the Act. The discretion is thus plainly one that is to be exercised judicially, and in accordance with what is just and proper. Secondly, I think that the onus lies on the plaintiff to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its benefits. Further, the time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus, I think, no triviality: the applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time.'
The learned Vice-Chancellor then went on (at 175-176) to identify four further points in addition to the two points which
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- emerge Re Ruttie (supra). The third point was that it was material to consider how promptly and in what circumstances the applicant had sought the permission of the court after the time limit had expired. As his Lordship said it (at 175):
'The whole of the circumstances must be looked at, and not least the reasons for the delay, and also the promptitude with which by letter before action or otherwise, the claimant gave warning to the defendants of the proposed application.'
The fourth point referred to (at 175) was that:
'… it is obviously material whether or not negotiations have been commenced within the time limit; for if they have, and time has run out while they are proceeding, this is likely to encourage the court to extend the time. Negotiations commenced after the time limit might also aid the applicant, at any rate if the defendants have not taken the point that time has expired.'
The fifth point was that it was relevant to consider whether or not the estate had been distributed before a claim under the Act had been made or notified. As his Lordship so aptly said (at 176):
'For most people, there is a real difference between the bird in the hand and the bird in the bush. In addition, of course, the beneficiaries are more likely to have changed their position in reliance on the benefaction if they have actually received it than if it lies merely in prospect.'
The sixth point was that it was relevant to consider whether a refusal to extend the time would leave the claimant without redress against anybody. His Lordship has made it plain that these considerations are not exhaustive."
3 In circumstances which I will detail more fully below, one of the prime arguments advanced by the plaintiffs was that the delay occasioned in bringing the application was due to the inaction of the plaintiffs' solicitors and the consequences of this in action should not be visited on the plaintiffs. Rather, the fact that the delay was occasioned by the solicitors, not the plaintiffs themselves, was grounds for taking the application out of the general rule and granting leave to proceed. Reliance was placed by the plaintiffs on the decision of the Full Court in Grigoriou
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- v George Nitsos [1999] WASCA 42. The facts of this case were set out by Ipp J in his judgment. His Honour said (at 4 - 13):
"4 The applicant is the daughter of the deceased who died on 11 November 1997. The principal asset in the estate consisted of a property in East Perth worth about $300,000. The balance of the estate was worth about $27,700. In terms of the will of the deceased the applicant received one third of that part of the estate not including the property, in other words, about $9300. The main beneficiaries under the will of the deceased were the third respondents (who are the sons of the applicant's brother): they became entitled to the property.
5 Before this Court it was not disputed that the evidence of the applicant established, at least, an arguable case that by his will the deceased did not make adequate provision for her proper maintenance, support, education or advancement in life. Further, it is at least arguable that the applicant has a moral claim for relief under the Act.
6 On 4 December 1997 Stamatiou & Co, as the applicant's then solicitors, wrote to the first respondent, in his capacity as the executor of the deceased's estate, foreshadowing a claim under the Act by the applicant. Stamatiou & Co also informed the first respondent that they had lodged a caveat in the probate division of this Court preventing probate of the will being granted. On 21 January 1998 Freehill Hollingdale & Page ('Freehills'), the first and third respondents' solicitors, replied. They expressed doubts as to the strength of the applicant's claim. They proposed that the caveat be withdrawn so that probate could be granted and offered an undertaking on behalf of the executor that, provided application under the Act was made immediately, the executor would not move to distribute the estate.
7 Stamatiou & Co did not reply to this letter. On 16 February 1998 Freehills telephoned Stamatiou & Co to ascertain why no response had been forthcoming. They were unable to speak to the solicitor handling the matter and their telephone call had not been returned. On 3 March 1998 Freehills wrote to Stamatiou & Co calling
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- for a response and referring to the telephone call of 16 February 1998. On 4 March 1998 Freehills telephoned Stamatiou & Co but were, again, unable to speak to the solicitor concerned. That day, Freehills wrote to Stamatiou & Co recording that an attempt had been made by them earlier that afternoon to speak to the solicitor dealing with the matter on the applicant's behalf, but he was "busy". The letter complained about the delay in responding to Freehills' previous letters. On 5 March Freehills again unsuccessfully attempted to speak to Stamatiou & Co. On 12 March a discussion at last took place and an agreement was arrived at in terms of the proposal put by Freehills in their letter of 21 January 1998.
- 8 On 26 March 1998, Mr Segler telephoned Freehills and advised them that instructions had been received to remove the caveat and that steps would be taken to do so forthwith. As the learned Master pointed out, 'how this sits with what appears to have been a firm agreement reached on 12 March between the solicitors is not entirely clear'. Notwithstanding Mr Segler's promise, nothing was done to remove the caveat and on 22 April 1998 Freehills wrote to Stamatiou & Co, raising the issue. Freehills followed this up by telephoning Stamatiou & Co on 24 April 1998, but to no avail. By letter written that day, they requested a response. Eventually, on 28 April 1998, Stamatiou & Co wrote to Freehills confirming that a withdrawal of caveat had been executed and stating that it would be lodged as soon as the executor undertook in writing not to distribute the estate pending an application by the applicant under the Act. On 30 April 1998 Freehills provided an appropriate undertaking to Stamatiou & Co. The withdrawal of caveat was duly lodged and on 1 May 1998 the caveat was withdrawn. On 7 May 1998 probate of the will was granted.
9 By this stage, some five months had passed since Stamatiou & Co had first been involved, but nothing had been done about making an application under s 7(1).
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- 10 On 26 May 1998 Freehills wrote to Stamatiou & Co, urging that the contemplated application by the applicant under the Act be filed forthwith. That letter read in part:
'As you are aware, our client has undertaken not to distribute any part of the Estate pending final determination of an inheritance application "provided such application is pursued promptly and with due diligence" (these words were used in the written undertaking given by the first defendant to the plaintiff).
To date, we have had great difficulty getting responses from your office which has delayed, unreasonably, progress to the present stage. Our client is not prepared to allow any delay in future.
When the writer spoke with Mr Segler of your office on 19 May, the latter indicated that your client's affidavit in support of the inheritance application was awaiting signature. There would seem no reason, therefore, why the originating summons and affidavit cannot be filed forthwith.
Unless the proceedings are commenced within 14 days from today's date, we will advise our client that the application has not been pursued promptly and with due diligence and that he may proceed to distribute the Estate.'
11 There was no reply to this letter. On 15 June Freehills again wrote to Stamatiou & Co pointing out that no action had been taken. The letter stated that in consequence of the delay:
'Our client is relieved of his undertaking previously given and now intends to proceed with distribution of the Estate in terms of the deceased's last Will.
If there is any reason why distribution should not proceed, then no doubt you will contact us.'
- Stamatiou & Co continued to do nothing. They did not reply to Freehills and they did not issue proceedings.
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- 12 The six month time limit under s 7(2)(a) of the Act expired on 7 November 1998. No application had by then been made. In the proceedings before the learned Master, Mr Stamatiou of Stamatiou & Co attempted to explain this failure by blaming Mr Segler. He testified that on 4 March 1998 Mr Segler was instructed by his firm 'to prepare the necessary court documents for initiating proceedings on [the applicant's] behalf". According to Mr Stamatiou:
'Despite repeated requests directed to Mr Segler to complete the task and return [the applicant's] file Mr Segler failed to do so until 10 November 1998 by which time the application was out of time, probate having been granted on 7 May 1998. The reasons for Mr Segler's inadvertence is outlined in his letter to me dated 26 November 1998.'
- In Mr Segler's letter of 26 November 1998, he stated that on 4 May 1998 Freehills had provided him with a copy of the deceased's will and the statement of assets and liabilities in respect of the estate. According to Mr Segler's letter:
'Thereafter on a date which I am not able to recollect I advised you that it would be necessary to obtain a proof of [the applicant's] evidence because that had been taken previously from her was insufficient for the purposes of the claim under the Act. I further offered to take such proof of evidence but by inadvertence which can only ultimately be attributed to me that appointment was not arranged until after the expiry of the limitation period for the claim.'
As the learned Master pointed out:
'[The letter] makes no real effort to explain why no action was taken between March and November of 1998. Further, and in my view significantly, it makes no attempt to explain why it was that the [respondents'] solicitors were told by Segler on 19 May that the application and an affidavit in support had been prepared and would be filed as
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- soon as the affidavit had been signed. If this account of the conversation between Segler and the [respondents'] solicitors was not accurate, then it should have been disputed on affidavit. It suggests that not only has there been inexplicable and inexcusable delay on the part of the [applicant's] solicitors, but that they actively misled the [respondents'] solicitors.'
- 13 On 4 December 1998, Stamatiou & Co, acting on behalf of the applicant, filed a notice of originating motion seeking leave (pursuant to s 7(2)(b)) to file an application under the Act out of time. In this regard the learned Master noted:
'It is not entirely clear why [Stamatiou & Co] waited some three weeks after the expiration of the time for making the application before bringing this application for the extension of time. Stamatiou was aware, as of 10 November 1998 at the latest, that an application for an extension of time was required. I would have expected an application to be made forthwith. Although in the context of the delay as a whole an extra three weeks is of little significance, it demonstrates that, faced with a situation of some urgency, the [applicant's] solicitors failed to act promptly.'
"17 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
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- 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)."
5 His Honour then noted that at the hearing at first instance no evidence had been led by the plaintiff of what efforts she had made to have her solicitors take some action. To rectify this evidentiary admission the Full Court took the unusual step of allowing the plaintiff to give evidence and to be cross-examined. It emerged that the plaintiff had seen her solicitor more than five times in an attempt to find out what progress had been made. She was told not to worry without it ever being explained to her the perils posed by the time limit in s 7(2)(a) of the Act. Further, the plaintiff's grasp of English was poor and her education limited. Thus she was further disadvantaged in her dealings with her solicitor.
6 His Honour also considered that although the appellant would not be left without remedy because she clearly had a claim against her solicitor, she was nonetheless prejudiced if she was forced to take that action rather than proceed with her claim under the Act. His Honour said (at 29):
"29 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
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- 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."
7 Turning then to this case, the plaintiffs are all children of the deceased. By his Will, the deceased left a farming property at Glenrowan Road, Denmark to Arthur Sidney Marshall ("Arthur"), one of his sons, to the exclusion of the plaintiffs. A statement of assets and liabilities filed with the Court puts the net value of the deceased's estate at just over $1,250,000. The farming property accounts for $1,245,000 of the assets. Of the rest, something over $5000 was held in cash and the remainder is attributed to household furniture. In other words, the deceased effectively left his estate to one of his children to the exclusion of all others.
8 The application is supported by an affidavit of the first-named plaintiff sworn 5 June 2001. He recounts how, after the death of the deceased, he discussed the contents of the Will with the other plaintiffs. Some disquiet was expressed and it was decided to seek legal advice. The fifth-named plaintiff was delegated to this task. She approached a solicitor in Narrogin in early 1998. Some advice was obtained, including advice as to the time limit contained in the Act. It was then determined that the plaintiffs would instruct a solicitor in Albany because most of them lived in that region. This was done and in late 1998 a sole practitioner in Albany was instructed. By letter dated 25 January 1999 she advised the defendant, the executor of the estate, that a claim was being considered. The executor was advised then, three months prior to the grant of probate, that the plaintiffs were contemplating an action under the Act. The first-named plaintiff says that thereafter the plaintiffs have had some difficulty with their solicitor. Eventually, on 28 June 1999, a conference was held between the plaintiffs, or some of them, and their solicitor and instructions were issued to proceed with an application. It is not clear from the affidavit what occurred thereafter. It is clear that no application was issued. It is not clear whether further inquiries were made of the solicitor as to how the action was progressing. There is no indication of any contact between the plaintiffs and their solicitor until the plaintiffs wrote to their solicitor on 26 January 2000. That letter asked, among other things, whether a claim had been filed. It was not until May 2000 that the plaintiffs received a response from their solicitor and this only after a complaint to the Legal Practitioners Complaints Committee.
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- So in May 2000, the plaintiffs first became aware that an application under the Act had not been lodged. In June 2000 the plaintiffs terminated the retainer of their Albany solicitor and retained new solicitors based in Perth. The new solicitors were instructed on 14 July 2000.
9 On receipt of the file the plaintiffs' present solicitors considered whether or not an application under the Act should be made. The file that they received was somewhat sparse and incomplete. It did not, for instance, contain a copy of the grant of probate or, more importantly, a copy of the statement of assets and liabilities filed in support of the application for the grant. However, by mid-August 2000 the plaintiffs' present solicitors had advised the plaintiffs and had received instructions to investigate the prospect of bringing a claim. Then, towards the end of September 2000, the solicitor with conduct of the matter was struck down by illness. He was not able to return to his duties until mid-November and even then was not fully recovered. He was not in a position to return to employment full-time until the end of February 2001. In the meantime there had been some correspondence passing between the solicitors for the plaintiffs and the former solicitors for the executor and the Probate Registry of this Court. But no proceedings were issued. It must also be said that it is not clear why, when the person at the firm instructed by the plaintiffs was indisposed, some other person did not take over the conduct of the file. It must have been apparent to the plaintiffs' present solicitors from the moment they received the file from the Albany solicitor that the time limited for bringing the application had expired. While it may have been appropriate to undertake some investigations prior to issuing proceedings, it is difficult to see why these investigations were not undertaken as a matter of urgency and the application itself was not made until almost 12 months after the plaintiffs' present solicitors were instructed. While I accept that illness has caused the solicitors significant difficulty, it must be said that the explanation for the delay is not entirely satisfactory.
10 Having said all of that it does seem to me that there are two factors which are significant. First, it is apparent that the plaintiffs have not simply been idle in relation to the claim. They were let down by the Albany solicitor they instructed. While they may not have been in regular contact with their solicitor, I accept that they had some difficulty contacting her. That is evidenced by the fact that it was only after a complaint was lodged with a professional body that they received a satisfactory response to their inquiries. Having been advised nothing had been done, they then took the positive step of changing solicitors. While there is no evidence of the contact they maintained with their present
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- solicitors between July 2000 and June 2001, I am satisfied that taken in the overall, there is enough evidence to establish that the delay in this case is occasioned by the actions of solicitors and cannot be regarded as entirely the fault of the plaintiffs.
11 Second, the executor was put on notice that a claim was contemplated against the estate by the plaintiffs. That was done prior to the grant of probate. In the Nitsos case the solicitors for the executor wrote repeatedly to the claimant's solicitors encouraging them to proceed with any claim and advising that if a claim was not made the property of the deceased would be distributed pursuant to the terms of the Will. That was not done in this case. The defendant says he instructed his solicitors to wait at least six months from the grant of probate before transferring the farming property in Denmark to Arthur. In fact, the defendant waited 14 months before effecting the transfer. But at no time was notice given to the plaintiffs of the intention to effect that transfer. While there was no positive duty on the defendant to notify the plaintiffs of his intention to distribute the deceased's estate, he was on notice that a claim might be made and a prudent executor may have notified the plaintiffs of his intention to act. While I would not see this fact as decisive, it nonetheless is a matter which I have taken into account in the exercise of my discretion.
12 There are two other matters which I have taken into account in determining this application. First are the merits of the plaintiffs' claim. It is difficult at this stage of the proceedings to form any view as to the likely success or otherwise of an application under the Act. What can be said is that the plaintiffs are of a class of persons entitled to claim under the provisions of s 7(1)(c) of the Act. But beyond saying that, it is difficult to form any view of the strength or otherwise of the plaintiffs' case. It is true that each of the plaintiffs has property and each is of an age where there is no question of a failure of the deceased to provide for their support or education. Counsel for the defendant submitted that based upon the evidence as it stands at present, this case was comparable with Dobra v Brennan [1999] WASC 98 and that the plaintiffs' claim would fail. With respect, such a conclusion could not be reached based on the evidence as it stands at present. In my view, all that can be said is that the plaintiffs are entitled to bring a claim and that claim cannot be seen as hopeless.
13 The second matter I have taken into account is the prejudice to Arthur if the plaintiffs are permitted to proceed with an application. An affidavit of Arthur sworn 12 September 2001 was filed in opposition to
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- this application. Apart from outlining his claim to the Denmark farms, he makes the point that since the death of the deceased he has undertaken further development of the property. He says that if any claim by the plaintiffs was successful, it would necessitate all or part of the farm being sold. He says that he has put time and money into developing the farm would result in its having greater value and he will therefore be prejudiced by the delay. A similar argument was put by the defendant in the Nitsos case. Ipp J noted that when and if any order was made in favour of the plaintiffs recognition could be given to any expenditure on the deceased's property by the beneficiary subsequent to the death of the deceased. That is the case here.
14 Arthur also makes the point that if leave is given and a claim made he is placed in a position of uncertainty with respect to his home and livelihood. Thus, he says, he is prejudiced. The stress and tension occasioned by an application such as this, particularly when it relates to an individual's home and when it has the potential to greatly impact upon his income is not to be underestimated. It is a factor which I have weighed in the balance.
15 However, taking all matters into account I am satisfied that this is an appropriate case for the grant of an extension of time. However, I am by no means satisfied that either the plaintiffs or the defendants ought bear the costs of this application. Certainly, so far as the defendant is concerned, I am satisfied that neither he nor the estate should be responsible for these costs. Accordingly, I will hear the parties as to the precise form of the orders and as to costs.
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