Borgese v Cater & Blumer Pty Ltd t/as Cater & Blumer

1. [1]

   HIS HONOUR: These proceedings were originally commenced by statement of claim filed on 1 May 2012. The current version of the plaintiff’s pleading is the amended statement of claim filed on 25 March 2015. By notice of motion filed on 3 June 2016, the defendant seeks an order pursuant to UCPR 12.7(1) that the amended statement of claim be dismissed. That application is supported by affidavits sworn by Catherine Monica Osborne on 3 June 2016 and 30 August 2016. In response to the defendant’s application, the plaintiff relies upon the affidavit of his solicitor Anthony Steven Margiotta sworn 31 August 2016. It will be necessary shortly to refer to significant portions of all of that evidence.

Background facts

1. [2]

   The plaintiff’s parents had owned agricultural land at Leeton in the New South Wales Riverina District. Mr Borgese senior died on 6 June 2003. He was predeceased by his wife who died on 21 February 1978. The plaintiff alleges that on 21 June 1976 he went with his parents and his eldest sister Benilda Papasidero to the office of Stuart Denis Maguire at Leeton. Mr Maguire was a solicitor who had been retained by Mr and Mrs Borgese to prepare their wills. The plaintiff contends in these proceedings that those wills were to be mutual wills and that he was to receive a property owned by his parents, described as Farm 1143, when the surviving parent died. The plaintiff also says that statements were made to him by his parents after they made their wills, which confirmed what he had been told would happen following their deaths.

2. [3]

   The plaintiff thereafter conducted his life and his affairs upon the basis, and in the expectation, that one day the property would be his. He says that he had “an unwritten agreement that [he] would work on the farm for no income, in order to assist [his] parents pay off the farm with the profits made by harvesting and maintaining crops but inherit Farm 1143”. The plaintiff also contends that over the years he entered into a series of partnerships with his parents or one of them, the effect of which was to regularise his participation in the farming and horticultural enterprises conducted on the land.

3. [4]

   The plaintiff’s mother left the whole of her estate to her husband when she died. The plaintiff was never given a copy of her will to read. The plaintiff also maintains, inconsistently with the gift of the whole of her estate to her husband, that his mother’s will also apparently gave him the right to purchase “the assets of her estate (not being part of her personal possession) at the probate valuation”. It is clear that the plaintiff did not exercise that right if it existed. As discussed below, however, the will executed by the plaintiff’s mother did not in fact provide him with an option to purchase as he appears to believe.

4. [5]

   In about 1980 or 1981, the plaintiff discovered that his father proposed to sell the farm. The plaintiff then went to the office of Maguire & Martin, solicitors, and spoke to Mr Martin. He said to Mr Martin:

5. [6]

   Mr Martin replied in the following terms:

6. [7]

   The plaintiff’s father sold Farm 118 on 30 October 1981 but retained Farm 1143. The plaintiff says that he was “very upset with his father as a result of his decision because it should have been discussed with [him]”. He also says that he should have been informed by Mr Maguire that his father had been intending to sell Farm 118.

7. [8]

   In about 1998, the plaintiff says that he was on Farm 1143 with his father, who said to him, “Domenic, you can manage the property and the property will be yours”. In 1999 the plaintiff became aware through his wife that his father had made another will leaving Farm 1143 to him. The will had been prepared by Ian Maguire, his father’s solicitor.

8. [9]

   On or about 19 January 1999 the plaintiff and his father were involved in a serious domestic confrontation on Farm 1143. As a result, each obtained apprehended domestic violence orders against the other. The plaintiff was as a result restrained briefly from returning to Farm 1143 to work on it. These orders were subsequently removed by consent.

9. [10]

   The plaintiff’s father took steps at this time to “rescind” the partnership agreement between them. This happened in January 1999. The plaintiff retained Andrew Rowe of Messrs Mackenzie & Vardanega to act for him in correspondence with Mr Maguire who by then worked for Cater & Blumer.

10. [11]

    The plaintiff has alleged that Mr Maguire’s involvement in the plaintiff’s dispute with his father about the partnership created an even bigger dispute between them. Indeed, the plaintiff says that Mr Maguire “created a wave which developed into a tidal wave because of his involvement which led to far reaching consequences” for him and his family.

11. [12]

    Following the serious domestic confrontation on 19 January 1999, the plaintiff’s father made a new will dated 18 February 1999. He executed a codicil to that will on 25 August 1999. The plaintiff did not become aware of these documents until after his father’s death. The plaintiff says that he instructed Messrs Mackenzie & Vardanega to assist him in attempting to reach some agreement with his father in relation to the partnership some time before his father died on 6 June 2003. At paragraph 58 of his affidavit sworn 15 August 2016, the plaintiff said this:

12. [13]

    Paragraph 59 of that affidavit then continued in the following relevant terms:

13. [14]

    The plaintiff commenced proceedings on 7 July 2004 against his sister as the executrix of the estate of his father seeking an order for provision under the Family Provision Act 1982. Messrs Mackenzie & Vardanega ceased to act for the plaintiff in January 2006. The defendant acted for the executrix in those proceedings. The plaintiff attempted to find another solicitor without success. Young CJ in Eq ordered, on 2 May 2006, that the plaintiff receive half of the estate of his father. In finding in favour of the plaintiff, his Honour observed at [33] that “the plaintiff had a real expectation that his parents would honour the promises that they had made to him”. It does not appear that the plaintiff sought collateral equitable relief in those proceedings contending that he was entitled to something other than relief under the Act upon the basis that his parents had made mutual wills substantially favouring him, or that he could enforce inter vivos promises made by his parents to the same or similar effect.

14. [15]

    Mr Hadley of counsel appeared for the executrix, instructed by the defendant, in the Family Provision Act proceedings. In the course of his submissions, Mr Hadley prepared a chronology of relevant events. One of those events is that the plaintiff’s parents made mutual wills in 1976. Another event in that chronology is that the plaintiff’s father made a later will on 18 February 1999. That was the will with which the Family Provision Act proceedings were concerned. It appears that the defendant prepared all of these wills.

15. [16]

    The plaintiff later learned that Farm 1143 was listed for auction on 24 June 2006. His then solicitors were Messrs Randles Cooper & Co. They were given three days’ notice of this proposed sale. The plaintiff contacted the defendant and indicated that he did not want the farm to be sold. He told the solicitor that he would take action if it was sold and that any documents relating to the partnership belonged to him. In the events that occurred, Farm 1143 was sold by Ms Papasidero to her sister on 25 August 2006 for $324,000.

Mr Borgese’s claim

1. [17]

   The plaintiff’s current pleading is contained in his amended statement of claim filed 25 March 2015. It commences with the allegation that his parents executed mutual wills in the presence of Mr Maguire on 21 June 1976. Although not specifically pleaded, it appears that these wills were prepared by Mr Maguire as well.

2. [18]

   The plaintiff alleges further that following his mother’s death on 21 February 1978, his father received the whole of her real and personal estate “absolutely”. However, at paragraph 7 of the amended statement of claim, the plaintiff also alleges that “pursuant to the mutual wills of [his parents]”, his father held, presumably following the death of his mother, Farm 1143 and all farming plant and machinery on trust for him. At paragraph 14 of the amended statement of claim the plaintiff alleges that on 18 February 1999, his father revoked his earlier wills and made another will “whereby the plaintiff’s entitlement was adversely affected”. The plaintiff’s father signed a codicil to that will on 25 August 1999.

3. [19]

   The plaintiff’s claim is pleaded in negligence. Particulars of this negligence are as follows:

4. [20]

   The plaintiff alleges, in somewhat general and unparticularised ways, that due to the negligence of the defendant he moved from Leeton to Melbourne and suffered a mental breakdown. He has not worked since 2002 and claims damages for pain and suffering and the loss of income from not being able to manage and run Farm 1143 and Farm 118. Despite the terms of the allegations of negligence, no other relief is claimed.

The defendant’s response to the plaintiff’s claim

1. [21]

   By its defence to the amended statement of claim filed on 14 January 2014, the defendant denied that it was negligent. It denies that it owed a duty of care to the plaintiff to take the action or to provide the advice alleged by the plaintiff. Indeed, the defendant denies that, at the latest following the commencement of the plaintiff’s proceedings on 7 May 2005 against Ms Papasidero as the executrix of the estate of the plaintiff’s father, it had any duty to advise the plaintiff. The defendant denies that it had any duty to advise the plaintiff following Young CJ in Eq’s decision on 2 May 2006, and confirms that, until set aside, the orders made by his Honour in those proceedings continue to determine the plaintiff’s entitlements concerning the estate of his father. The defendant also denies that it caused the plaintiff to suffer any loss.

2. [22]

   The defendant also says that any cause of action pleaded by the plaintiff against it is barred by operation of s 14 and s 63 of the Limitation Act 1969. That contention is particularised at paragraph 39 of the defence in the following alternative ways:

3. [23]

   The defendant also responded to the plaintiff’s claim by emphasising that in May 2006 the plaintiff elected to commence and to prosecute the Family Provision Act proceedings, as opposed to proceedings based upon his alleged rights under the 1976 wills of his parents, in circumstances where he believed those wills were mutual wills so that he should in such circumstances be bound by his election to affirm the validity of the last will of his father.

4. [24]

   It is arguably not without some significance, at least in the context of the present application, that the plaintiff has chosen not to reply to the current defence.

Comment

1. [25]

   I pause to note the following matters that are still unclear to me.

2. [26]

   First, the so-called mutual wills executed by the plaintiff’s parents, and his father’s later will and codicil, are in evidence before me as exhibits to the plaintiff’s affidavit. The true meaning and effect of the provisions of these wills are therefore capable of testing for present purposes at a preliminary stage at least. However, the evidence touching the circumstances of their execution is somewhat scant so that a proper understanding of the plaintiff’s claims with respect to the so-called mutual wills is correspondingly hampered.

3. [27]

   Secondly, I am unable to assess whether or not the plaintiff was, or would have been, in a position to purchase the property that he asserts he was given an option to purchase at valuation, assuming that he contends that the relevant terms of the wills had not been brought to his attention in a timely way. That issue would appear potentially to be relevant to the quantification of the plaintiff’s losses, although a claim asserting such a loss in terms is difficult to discern in the amended statement of claim. His father’s will is the only relevant instrument in this respect having regard to the order of his parents’ deaths.

4. [28]

   Thirdly, even with the assistance of the wills concerned, I am unable to determine how it is alleged that either of the plaintiff’s parents was constrained in any way from selling or disposing of any of their property during their respective lifetimes. The wills do not have that effect. It seems to have been assumed, contrary to the usual understanding of mutual wills agreements, that the plaintiff’s parents were restricted in their ability to sell Farm 1143 to a third party if they, or either of them, chose to do so. The “mutual wills” apparently favouring the plaintiff in some legally enforceable way, so that he received Farm 1143 or its sale price, would only have that effect at the very least if the surviving parent retained the property or its equivalent at the date of his or her death.

5. [29]

   Fourthly, the plaintiff would appear clearly to have approbated the validity of his father’s last will to the extent that he sought an order for provision out of his father’s estate under the Family Provision Act. It is not clear to me how the plaintiff can now maintain his present “mutual wills complaint” against the defendant, alleging that it somehow caused him loss in one or other of the ways particularised in the amended statement of claim, when he has already claimed and received benefits under the will he says should never have been made, in the sense that it wrongfully derogated from rights he was otherwise entitled to enforce. The plaintiff did not in those proceedings seek to propound his asserted entitlements under the so-called mutual wills against the executrix who stood possessed of the estate assets in her representative capacity but in effect he seeks to do so now. This is adverted to in the defendant’s defence.

6. [30]

   Fifthly, the defendant has also raised the issue of the Limitation Act 1969 as a defence to the current proceedings. It is also not clear to me why the present cause of action did not accrue well in excess of six years prior to the commencement of these proceedings. It is unlikely to be a coincidence that these proceedings were instituted one day shy of six years following Young CJ in Eq’s decision in the Family Provision Act proceedings commenced by the plaintiff. However, that coincidence appears on one view to bespeak a level of confusion about the relationship between his Honour’s orders in particular or those proceedings generally on the one hand and the plaintiff’s accrual of his cause of action in the present proceedings on the other hand. For example, the original statement of claim filed on 1 May 2012 [not 17 May 2012 as indicated in the chronology provided to me], contains the following handwritten endorsement signed by Mr Margiotta and dated 1 May 2012:

7. [31]

   Sixthly, the amended statement of claim does not particularise the loss and damage alleged to have been caused by the defendant’s negligence other than in general terms. It is conceivable that a better understanding of the claimed losses might clarify the bases upon which the losses are said to arise. These are not entirely apparent to me at the present time.

The present application

1. [32]

   By its notice of motion filed on 3 June 2016, the defendant seeks an order that the proceedings be dismissed for want of due despatch pursuant to UCPR 12.7(1). The application is supported by two affidavits from Catherine Osborne sworn 3 June 2016 and 30 August 2016. These affidavits were read without objection. Ms Osborne was not cross-examined.

2. [33]

   The defendant contends that there have been significant delays in the prosecution of the plaintiff’s claim. It is necessary to review the procedural history in some detail in order to understand that allegation.

3. [34]

   The defendant’s current solicitor became involved in these proceedings in early 2014. On 3 February 2014, she served a notice of change of solicitor on Mr Margiotta. She did not hear from him. On 3 June 2014, she wrote to Mr Margiotta requesting that he relist the proceedings in order to obtain a new timetable for the progress of the matter. That letter also warned that the defendant would seek instructions to take steps to dismiss the proceedings for want of due despatch if Mr Margiotta did not respond.

4. [35]

   Mr Margiotta wrote to the Court on 27 June 2014 requesting that the matter be relisted for directions. That occurred on 6 August 2014. Thereafter, between 28 October 2014 and 16 March 2015, the defendant’s solicitor sent no less than five more letters warning Mr Margiotta that the defendant would seek immediate instructions to dismiss the proceedings should further timetable breaches occur.

5. [36]

   The proceedings were relisted for directions at the defendant’s request on 24 March 2015. After an informal but unsuccessful settlement conference on 29 July 2015, the proceedings were adjourned by consent to 19 August 2015 for directions. The matter was in fact called up for review by Garling J on 25 August 2015. His Honour relevantly made the following orders at that time:

   1. (1)

      On or before 4.00pm on 30 October 2015 the plaintiff is to serve:

   2. (2)

      Grant leave to the plaintiff to file and serve a notice of motion seeking leave to administer interrogatories by 4.00pm on 16 September 2015.

   3. (3)

      On or before 4.00pm on 5 February 2016 the defendant is to serve:

   4. (4)

      The directions hearing on 17 September 2015 is vacated.

   5. (5)

      The matter is listed for directions on 11 February 2016 to discuss issues including the length of the hearing, the issues in the case and further pre-trial directions required.

6. [37]

   The plaintiff breached the timetable ordered by Garling J. He neither filed nor served a notice of motion seeking interrogatories and did not serve any lay or expert evidence. Thereafter between 6 October 2015 and 17 November 2015, the parties exchanged correspondence. That correspondence dealt in part with the plaintiff’s timetable defaults.

7. [38]

   By letter dated 6 November 2015, Mr Margiotta indicated that he required “an extension of time to serve lay and expert evidence … and to file a notice of motion seeking interrogatories.” He advised that he would “take steps to have the matter listed for further directions before the Registrar on … 18 November 2015.” On the same day the defendant replied in the following terms:

8. [39]

   On 17 November 2015, the defendant wrote to Mr Margiotta asking to be told “as a matter of urgency” whether the proceedings had been re-listed before Garling J. Mr Margiotta relisted the matter before Garling J on 4 December 2015 but in his Honour’s absence the matter came before the Registrar on that day instead. On 25 November 2015, the defendant wrote to Mr Margiotta putting him on notice that the defendant intended to seek to have the proceedings dismissed if the plaintiff was in breach of the next Court timetable.

9. [40]

   Registrar Bradford referred the matter to Adamson J on 4 December 2015 and her Honour made the following orders:

   1. (1)

      Vacate the orders made by Garling J on 25 August 2015.

   2. (2)

      Subject to order (4) below, extend the time for the plaintiff to serve the following documents to on or before 4.00pm on 15 February 2016;

   3. (3)

      Subject to order (4) below, no statements of non-expert witnesses or expert reports may be relied upon by the plaintiff unless they are served on the defendant’s solicitor on or before 15 February 2016 without the leave of the Court.

   4. (4)

      Direct the plaintiff to serve the report of his psychiatrist on or before 28 February 2016.

   5. (5)

      The matter is relisted before Garling J for further directions on 4 March 2016.

   6. (6)

      The plaintiff to pay the defendant’s costs of today.

   7. (7)

      Liberty to apply on three days’ notice.

10. [41]

    The plaintiff breached the timetable ordered by Adamson J. The plaintiff did not serve any lay or expert evidence by 15 February 2016 or any psychiatrist’s report by 28 February 2016.

11. [42]

    By letter dated 16 February 2016 the defendant informed Mr Margiotta that it intended to file a notice of motion to dismiss the proceedings pursuant to UCPR 12.7(1) in the event that the plaintiff failed to serve any evidence by 1 April 2016 or obtain leave from the Court to rely on the evidence served as required under Adamson J’s orders made on 4 December 2015.

12. [43]

    The plaintiff did not serve any lay or expert evidence, or any report from his psychiatrist, before the matter came before me on 1 April 2016 in the professional negligence list. On that day I made the following orders:

    1. (1)

       The plaintiff is to serve all or any evidentiary statements upon which he proposes to rely by 27 May 2016 on the condition that no further evidentiary statements will be permitted thereafter without leave of the Court.

    2. (2)

       The defendant, if so advised, to file and serve any motion for interlocutory or final relief with supporting affidavits by no later than 3 June 2016.

    3. (3)

       Reserve costs.

    4. (4)

       Grant liberty to apply on three days’ notice.

13. [44]

    I then listed the matter before me for further directions on 2 September 2016. However, the plaintiff breached the timetable again by failing to serve any evidentiary statements by 27 May 2016. Mr Margiotta advised of his inability “to finalise statements in support of the plaintiff’s claim” by letter dated 27 May 2016. The defendant then wrote to Mr Margiotta on 30 May 2016 as follows:

14. [45]

    Mr Margiotta did not reply to that letter.

15. [46]

    The defendant’s present motion was filed on 3 June 2016. The first listing of that motion was on 17 June 2016 before the Registrar when the plaintiff was directed to file his evidence in response to Ms Osborne’s affidavit by 22 July 2016. The motion was listed for hearing on 31 August 2016 when it came before me. However, before that occurred, Mr Margiotta wrote to the defendant on 21 July 2016 in these terms:

16. [47]

    The defendant replied to that letter on 25 July 2016 as follows:

17. [48]

    Mr Margiotta wrote to the defendant on 12 August 2016 in the following terms:

18. [49]

    On 29 August 2016, the plaintiff filed a notice of motion seeking leave to administer interrogatories.

The plaintiff’s response to the application

1. [50]

   Mr Margiotta swore an affidavit on 31 August 2016 in response to the defendant’s application to dismiss the proceedings. It is detailed and expansive. However, it is not in my opinion necessary to recall the details for present purposes. The significant and reoccurring theme of Mr Margiotta’s affidavit is that Mr Borgese suffers, and has for a considerable period suffered, from a serious and enduring psychiatric condition. There is adequate medical evidence to support that fact. Relevantly, Mr Borgese’s medical condition has adversely affected Mr Margiotta’s ability to obtain appropriate instructions from his client and that in turn has caused a considerable proportion of the delays that have been the hallmark of this litigation so far. Mr Margiotta has indicated, in effect, that the plaintiff is a difficult client and that their relationship has been strained. Experience indicates that delay is often the unfortunate by-product of such circumstances. I hasten to observe that the plaintiff’s medical condition does not appear to me to have caused all of those delays and I consider that to some extent Mr Margiotta could and should have been able to take steps to reduce them and in particular to ensure that the plaintiff complied, as nearly as possible, with the several directions that have been made by the Court from time to time over the more than four years that the proceedings have been on foot.

2. [51]

   The affidavit is significant for another reason. Unless I misunderstand Mr Margiotta’s position, it seems to be the case that the plaintiff’s evidence in the substantive proceedings is now complete. The one matter that the plaintiff is still concerned to explore is the desire to interrogate the defendant. The proposed interrogatories are predominantly, if not exclusively, directed to the existence or otherwise of the allegedly mutual wills executed by the plaintiff’s parents and whether the executrix in the Family Provision Act proceedings instructed the barrister who appeared for the estate to make an admission or concession that their wills were in fact mutual wills. It seems to me that the need for the interrogatories that have been foreshadowed is slight inasmuch as the question of the true nature of the wills concerned would be directly ascertainable from their terms and possibly also from the circumstances that attended their execution. I am presently not required to say whether the wills were in fact mutual wills or what are commonly known as mirror wills. It seems highly unlikely that the plaintiff’s rights, if any, to enforce testamentary provisions in his parents’ wills, whatever be the proper description of them, would or could be definitively or finally established or determined merely by reference to forensic decisions made by the defendant in the plaintiff’s proceedings for provision out of his father’s estate.

3. [52]

   In the circumstances it appears, therefore, that the plaintiff is finally ready for his case to be heard. That assumption, if accurate, informs consideration of the dictates of justice and where, as between the plaintiff and the defendant, the proper balance on the present application is to be found. It is not, however, determinative.

The defendant’s submissions

1. [53]

   The defendant contends that the plaintiff’s conduct of these proceedings has occasioned it significant prejudice. The extent of the delay is presumptively and self-evidently prejudicial. Delay in the conduct of the proceedings is exacerbated by the fact that their commencement was itself considerably delayed. Memories can be expected to have faded, especially having regard to the fact that the initiating events occurred almost precisely 40 years ago. Mr Maguire has died. Costs and expense have been unnecessarily incurred and probably wasted.

2. [54]

   Conversely, the plaintiff’s prejudice is limited. According to the defendant, the plaintiff’s prospects of success are poor given the Limitation Act defences and the questionable breaches of arguably novel solicitor duties upon which the plaintiff’s case depends. The estate of Giuseppe Borgese was in any event of limited value, of which the plaintiff has already been awarded one half. Moreover, the plaintiff’s delay in the commencement of the proceedings infers a lack of interest in his own case that is not displaced by any evidence from him, as opposed to Mr Margiotta, explaining the delay.

3. [55]

   The defendant also submitted that the delay is “significant”. Despite being on foot for over four years, the matter has not progressed beyond pleading and discovery. The plaintiff’s several defaults are also described as egregious, including failures to file evidence in breach of “guillotine” orders. Even after the defendant’s current motion was filed, the default continued, including the breach of an order that the plaintiff file his evidence on the application by 22 July 2016. That delay remains unexplained on the defendant’s analysis.

4. [56]

   The material that has now been served as evidence in the principal proceedings consists of material that could have been served last year. The defendant contends that the conduct of the proceedings so far provides an inauspicious setting for whatever remains of the case. The defendant has provided no less than eight warnings that it would take the present course, with no reasonable result or response from the plaintiff.

5. [57]

   Since the commencement of the proceedings, the defendant has taken the following significant steps, at corresponding expense:

   1. (1)

      Anthony Morton has provided a statement. Mr Morton was a partner at the defendant who took over the conduct of Mr Maguire’s matters after he retired in 2005. Mr Morton is a key witness as he was the solicitor acting for the estate in the plaintiff’s Family Provision Act proceedings.

   2. (2)

      Mr Maguire has provided a statement. He was the solicitor who attended the important conference with Mr and Mrs Borgese on 21 June 1976.

   3. (3)

      The defendant’s senior counsel has conferred with Mr Hadley of counsel who appeared for the estate on the Family Provision Act proceedings.

   4. (4)

      Mr Martin has provided a statement. He is the solicitor referred to in paragraph 13 of the amended statement of claim.

   5. (5)

      Ms Papasidero has provided statements in July 2013 and June 2015. She acted as the interpreter for her parents at the 21 June 1976 conference.

6. [58]

   The continuation of the proceedings is distressing and inconvenient to the defendant and the personalities behind it.

7. [59]

   The defendant submits that in all of the circumstances the dictates of justice impel me to a conclusion that the proceedings should be dismissed.

Applicable principles

1. [60]

   The court obviously has a discretion when considering an application made pursuant to UCPR 12.7(1). The relevant principles were succinctly summarised by Simpson J in Hoser v Hartcher [1999] NSWSC 527, cited by McCallum J in Templar v Watt [2014] NSWSC 937 at [25] as follows:

2. [61]

   Part 6 of the Civil Procedure Act 2005 has come into operation since Hoser v Hartcher. These principles are still valuable but must be considered now in the light of the mandatory requirements to have regard to the overriding purpose in s 56 and the dictates of justice in the sense referred to in s 58. Sackville AJA commented in Bi v Mourad [2010] NSWCA 17 at [41] that the statements to be derived from Hoser v Hartcher may now be “somewhat too generous”. The dictates of justice must be considered having regard to the position of all parties in the litigation. The Court may dismiss proceedings for want of due despatch even where the default or delay is not intentional or contemptuous.

Disposition

1. [62]

   The defendant has not in terms contended that any significant or relevant delays were occasioned before the defendant’s current solicitor assumed conduct of the proceedings on its behalf. The Court had during that time ordered a stay of the proceedings until the plaintiff served a verified list of documents upon the defendant. The matter had been unsuccessfully mediated on 12 August 2013. The Court had refused the plaintiff’s request to relist the matter for further directions following the mediation. The plaintiff finally served his verified list of documents on 23 August 2013. I am, however, unaware whether or not such list included the original wills of the plaintiff’s parents or the later will and codicil executed by his father, although it seems likely inasmuch as they are exhibited to the plaintiff’s principal affidavit.

2. [63]

   It is clear that there have been significant delays in these proceedings since January 2014, when the defendant retained its current solicitors, for which delays the plaintiff is responsible and to which the defendant has not contributed in any way. Indeed, in the period of two years and eight months since then, the plaintiff has managed to do no more than serve four affidavits upon the defendant, one sworn by the plaintiff on 15 August 2016, one affirmed by Martin Hadley on 12 August 2016 and two affidavits sworn by Mr Margiotta on 29 August 2016 and 31 August 2016 respectively. The first of Mr Margiotta’s affidavits deals with a belated attempt to require the defendant to answer interrogatories. The second affidavit is directed to explaining the delays in the proceedings so far. It follows, therefore, that the preparation of the plaintiff’s affidavit and Mr Hadley’s affidavit appears to be the sum total of anything done by the plaintiff so far substantively to progress his case.

3. [64]

   Mr Hadley’s affidavit can quickly be put to one side. The defendant has admitted at paragraph 28(c) of its defence that Mr Hadley, as counsel appearing for the estate of the plaintiff’s father in the Family Provision Act proceedings before Young CJ in Eq produced a chronology to the Court that referred to mutual wills. Mr Hadley’s affidavit does not advance the plaintiff’s case beyond that admission by the defendant.

4. [65]

   Young CJ in Eq referred to the mutual wills contention in his judgment in Borgese v Papasidero [2006] NSWSC 407 at [5], [6] and [27] as follows:

5. [66]

   His Honour was not called upon to decide the issue and did not do so.

6. [67]

   The plaintiff’s own affidavit is a less than perfect example of its type. However, it does have exhibited to it a series of what will clearly become (at least some) very significant documents in the plaintiff’s case. It is necessary to refer to the terms of some of these.

7. [68]

   The Will of the plaintiff’s mother dated 21 June 1976 is in the following relevant terms:

8. [69]

   The plaintiff’s father survived his mother. He took the whole of her estate unconditionally. The right to purchase her assets given to the plaintiff by his mother in her will did not come into effect. It was conditional upon he husband predeceasing her or not surviving her for the specified period. Neither of those things happened. Nor does the will on its face support the existence of a promise that she would not revoke her will or that it was made in consideration of some agreement with her husband that he would make his will in particular terms and promise not to revoke it. In short, there is nothing in the will of the plaintiff’s mother that suggests that it is a mutual will as the plaintiff wishes to contend.

9. [70]

   The Will of the plaintiff’s father dated 21 June 1976 is in corresponding terms:

10. [71]

    It also follows that there is nothing on the face of the will of the plaintiff’s father to suggest that it is a mutual will as the plaintiff wishes to contend.

11. [72]

    Farm 118 was sold by Giuseppe Borgese to Francis Rupert Smith and Nerrin Margaret Smith for $50,000 by Contract for Sale of Land dated 30 October 1981.

12. [73]

    On 22 January 1999, Mr Ian Maguire of Maguire & Martin, solicitors, wrote to the plaintiff in the following terms:

13. [74]

    On 16 March 1999, Maguire & Martin wrote to Mr M F Tarlinton, a valuer, as follows:

14. [75]

    Mr Tarlinton provided the valuation as requested. He estimated the market value of Farm 1143 to be $320,000.

15. [76]

    Maguire & Martin wrote to Mackenzie & Vardanega on 30 April 1999, in the following relevant terms:

16. [77]

    It would appear that Mackenzie & Vardanega wrote on the plaintiff’s behalf to Maguire & Martin on 11 May 1999. That letter is not in evidence. However, the reply to the letter from Maguire & Martin dated 13 May 1999 is, and is in these terms:

17. [78]

    Maguire & Martin wrote again to Mackenzie & Vardanega on 22 June 1999 as follows:

18. [79]

    A Certificate of Judgment dated 18 April 2002 is also exhibited to the plaintiff’s affidavit. It indicates that Garry Munro Blumer and Ian Geddes trading as Cater & Blumer recovered a judgment in the Local Court at Griffith against the plaintiff in the amount of $8,936.12. A garnishee order to enforce the judgment was also later granted.

19. [80]

    Finally, for present purposes, is a Cater & Blumer file note dated 22 June 2006 with respect to the Estate of Borgese, prepared by “AM”, in the following terms:

20. [81]

    It is apparent that the reference to the court and the judge was a reference to the Family Provision Act proceedings from which the plaintiff received one half of the estate of his father.

21. [82]

    With the assistance of this material it is clear that the plaintiff’s contention that his parents made mutual wills that served to favour or benefit him in some way cannot succeed. Any factual or legal basis for the first thirteen particulars of negligence is comprehensively contradicted by the material to which the plaintiff’s affidavit refers. The last three particulars of negligence do not have anything to do with a discernible breach of duty by the defendant.

22. [83]

    At the heart of what I confidently suspect is really the plaintiff’s claim are the matters to which he refers at paragraphs 11 and 12 of his affidavit. Those paragraphs are instructive:

23. [84]

    The plaintiff’s disappointments that have been generated by his unfulfilled expectation that he would one day acquire Farm 1143 in accordance with what he contends were promises to that effect from his parents, in consideration for which or in reliance upon which he altered his position to his detriment, do not generate a cause of action against the defendant in these proceedings. I pass over the questions of whether they generate a cause of action against anyone at all, and whether such cause of action is now barred by effluxion of time or otherwise fatally compromised by the plaintiff’s election to pursue alternative avenues for relief. It is clear, however, that his concerns do not coincide with the existence of a cause of action against the defendant or that it was the result of the defendant’s negligence. The amended statement of claim does not come close to adumbrating any claim against the defendant suggesting that the plaintiff’s parents made wills on the advice of the defendant that did not give effect to their intentions at the time. The plaintiff ‘s affidavit and the surrounding circumstances upon which he relies do not support or suggest the existence of a possible claim by him against the defendant as a disappointed beneficiary and no such claim is pleaded.

24. [85]

    I have earlier referred to the fact that the plaintiff’s prospects of success will be taken to be a relevant factor. If it appears that the prospects are minimal, the discretion to dismiss the proceedings is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff’s case is strong, absent irremediable prejudice to the defendant, it is less likely that justice will be done by striking the action out. In the present case, I am confident that the plaintiff cannot succeed against the defendant upon the cause of action currently pleaded. I am also troubled by the fact that the delays in this case are not so egregious that the defendant’s application must succeed.

25. [86]

    The defendant has identified some prejudice. One significant witness has died and the memories of others may be expected to be less than perfect. By the same token, the case will in large part depend upon documents that speak for themselves or which might be expected usefully to rejuvenate failing memories. I also need to take account of the fact that the defendant, for reasons best known to it, has declined to seek to have the proceedings dismissed summarily pursuant to UCPR 13.4(1)(b). The defendant has not by this application foreclosed the possibility that it might do so in the future.

26. [87]

    In my opinion, this is not a case where the delays have been such that the proceedings should be dismissed. However, if no other application is made by the defendant, it seems to me that the proceedings should be listed for final hearing as soon as possible. I have a perception that both parties are in a position to go to trial on short notice. I will no doubt be told otherwise if I have misapprehended the true position, although the plaintiff is in no position to seek further time and the defendant has indicated that it does not want it. The plaintiff’s desire to interrogate the defendant should be reconsidered in the light of my earlier remarks about it.

Conclusions and orders

1. [88]

   In my opinion the following orders and directions should be made: